United States Court of Appeals
for the Federal Circuit
______________________
ERIC D. CUNNINGHAM,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5055
______________________
Appeal from the United States Court of Federal
Claims in No. 10-CV-0111, Judge Lynn J. Bush.
______________________
Decided: April 9, 2014
______________________
JAMES Y. BOLAND, Venable LLP, of Tysons Corner,
Virginia, argued for plaintiff-appellant. Of counsel on the
brief were MELANIE JONES TOTMAN and DISMAS LOCARIA,
of Washington, DC.
JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 CUNNINGHAM v. US
Before PROST, WALLACH, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Eric Cunningham filed a petition with the Merit Sys-
tems Protection Board (“MSPB”) to enforce a settlement
agreement he entered into with the United States Office
of Personnel Management (“OPM”), his former employer.
Mr. Cunningham alleged that OPM disclosed details
about him to another employer and thereby violated a
confidentiality provision in that agreement. The MSPB
found that OPM breached the agreement and offered
Mr. Cunningham the only remedies its jurisdiction per-
mitted: rescission and reinstatement. When
Mr. Cunningham declined to pursue those remedies,
the MSPB dismissed his petition.
Mr. Cunningham then filed suit against the United
States in the Court of Federal Claims (“Claims Court”),
seeking monetary damages for breach of contract. The
court found that it had subject matter jurisdiction under
the Tucker Act over the suit, Cunningham v. United
States, 108 Fed. Cl. 208, 213–21 (2012), but ruled that the
suit was barred by res judicata because the MSPB had
already issued a final judgment on the merits of
Mr. Cunningham’s claim, id. at 221–24.
While we agree with the Claims Court that it pos-
sessed jurisdiction under the Tucker Act to hear
Mr. Cunningham’s claim for breach of contract, we do not
agree that res judicata bars his claim. Because jurisdic-
tional limits on the MSPB’s remedial authority did not
permit Mr. Cunningham to seek monetary damages for
OPM’s breach of contract, the MSPB’s prior judgment
does not preclude his suit in the Claims Court. According-
ly, we reverse the judgment of the Claims Court and
remand for proceedings consistent with this opinion.
CUNNINGHAM v. US 3
BACKGROUND
Mr. Cunningham worked as a criminal investigator in
the Inspector’s Office of OPM from February 23, 2004
until his termination on January 22, 2005. He appealed
his termination to the MSPB, alleging that OPM discrim-
inated against him based on his marital status. During
the second day of an administrative hearing at the MSPB,
Mr. Cunningham and OPM agreed to a settlement.
Under the terms of the settlement agreement,
Mr. Cunningham agreed to withdraw his appeal with
prejudice, while OPM agreed to pay him $50,000. The
agreement designated the Director of OPM’s human
resources office as the contact point for reference inquiries
about Mr. Cunningham’s service as a criminal investiga-
tor. In response to such inquiries, the Director was per-
mitted to disclose only Mr. Cunningham’s “date of
employment and years of Federal service.” J.A. 41. The
agreement also required OPM to remove
Mr. Cunningham’s termination letter from his personnel
file. Furthermore, the agreement included a confidential-
ity provision that prohibited both parties from disclosing
the terms of the agreement and prohibited
Mr. Cunningham from disclosing information about his
grievance. On October 28, 2005, the MSPB entered the
settlement agreement on the record for purposes of en-
forcement.
In July 2006, Mr. Cunningham was offered a position
as a background investigator with the United States
Investigation Service (“USIS”), a private company that
contracts with federal agencies to perform background
investigations. After completing a background investiga-
tion, USIS told Mr. Cunningham to report to the next
training class in the fall of 2007. USIS also informed
Mr. Cunningham that it anticipated receiving a new
contract from OPM, and that OPM would conduct its own
background investigation.
4 CUNNINGHAM v. US
Mr. Cunningham reported for training on October 22,
2007. Less than one week after Mr. Cunningham had
commenced initial training, the general manager of USIS
informed Mr. Cunningham that he was being suspended
without pay at the direction of OPM's security office.
Mr. Cunningham remained suspended until February 1,
2008, when he was terminated by USIS. Following his
termination, he contacted OPM and requested a copy of
his personnel file. The file contained a document showing
that two OPM employees—neither of whom was the
Director of Human Resources—had discussed
Mr. Cunningham’s termination and subsequent appeal to
the MSPB with OPM’s background investigator.
On March 24, 2008, Mr. Cunningham filed a petition
with the MSPB to enforce the settlement agreement with
OPM. On July 16, 2008, an administrative judge found
that OPM had materially breached the agreement. The
administrative judge explained, however, that enforce-
ment would not be an effective remedy because the MSPB
lacked authority to award damages for OPM’s breach.
Instead, Mr. Cunningham was only entitled to rescind the
agreement and reinstate his initial appeal. The adminis-
trative judge noted that, if Mr. Cunningham elected to
rescind the settlement agreement and reinstate his ap-
peal, he would be required to reimburse the government
for the $50,000 payment made to him under the terms of
the settlement.
On January 23, 2009, the MSPB issued a final order
adopting the findings of the administrative judge. The
MSPB sent the case back to the administrative judge to
provide Mr. Cunningham with the option of rescinding
the agreement and reinstating his appeal. On February
9, 2009, Mr. Cunningham informed the administrative
judge that he only wanted compensation for his damages
caused by OPM’s breach of the settlement agreement; he
did not want his appeal to be reinstated. The next day,
CUNNINGHAM v. US 5
the administrative judge dismissed Mr. Cunningham’s
petition for enforcement.
On February 19, 2010, Mr. Cunningham filed a
breach-of-contract suit in the Claims Court, seeking
monetary damages for OPM’s breach of the settlement
agreement. 1 Although the Claims Court found that it
possessed subject matter jurisdiction under the Tucker
Act, Cunningham, 108 Fed. Cl. at 213–21, it dismissed
the suit on the basis of res judicata, id. at 221–24.
Mr. Cunningham filed a timely appeal. We have ju-
risdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
On appeal, the government challenges the Claims
Court’s jurisdiction over the suit, arguing that the settle-
ment agreement is a consent decree over which the MSPB
has exclusive jurisdiction. Mr. Cunningham challenges
the Claims Court’s decision that his suit is barred by res
judicata. We review de novo the Claims Court’s decision
that it possessed subject matter jurisdiction over
Mr. Cunningham’s claim. Holmes v. United States, 657
F.3d 1303, 1309 (Fed. Cir. 2011); Adair v. United States,
497 F.3d 1244, 1250 (Fed. Cir. 2007). We also review de
novo the Claims Court’s dismissal of Mr. Cunningham’s
claim on the basis of res judicata. Acumed LLC v. Stryker
Corp., 525 F.3d 1319, 1323 (Fed. Cir. 2008).
1 Mr. Cunningham seeks “[p]ast and future econom-
ic damages flowing from the breach of the settlement by
the Agency, totaling the amount he would have earned at
USIS from the date of his suspension without pay to the
date of his retirement, plus interest and benefits.”
J.A. 41.
6 CUNNINGHAM v. US
I
Because the United States has sovereign immunity, it
can be sued only if it expressly consents to suit. United
States v. Navajo Nation, 556 U.S. 287, 289 (2009). The
United States has waived sovereign immunity for breach-
es of contract via the Tucker Act, which provides that
“[t]he United States Court of Federal Claims shall have
jurisdiction to render judgment upon any claim against
the United States founded . . . upon any express or im-
plied contract with the United States.” 28 U.S.C.
§ 1491(a)(1).
We have long held that disputes over settlement
agreements are governed by contract principles. See
Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed. Cir.
1988). However, we have only recently addressed the
circumstances in which Tucker Act jurisdiction may
extend to a settlement agreement between a federal
agency and one of the agency’s employees. In Holmes v.
United States, 657 F.3d 1303 (Fed. Cir. 2011) and
VanDesande v. United States, 673 F.3d 1342 (Fed. Cir.
2012), we found that the Claims Court possessed jurisdic-
tion under the Tucker Act to entertain claims alleging
breaches of settlement agreements for Title VII com-
plaints. Under our decisions in Holmes and VanDesande,
the Claims Court has subject matter jurisdiction over
Mr. Cunningham’s suit.
A
In Holmes, we resolved a split of authority in the
Claims Court over whether Tucker Act jurisdiction ex-
tends to a claim alleging breach of an agreement that
settled an employee’s Title VII action. The majority view
at the time was that the Claims Court lacked jurisdiction
over such claims because Title VII’s statutory scheme
provided for exclusive review of Title VII actions in dis-
trict courts. See Griswold v. United States, 61 Fed. Cl.
458, 465 (2004) (collecting cases) (“This court has consist-
CUNNINGHAM v. US 7
ently held that it lacks jurisdiction to hear claims alleging
the breach of a Title VII settlement agreement due to the
comprehensive statutory scheme established under Title
VII of the Civil Rights Act.”). We rejected that view and
held that a suit against the government alleging breach of
a settlement agreement is fundamentally a suit to enforce
a contract and therefore within the reach of the Claims
Court’s jurisdiction under the Tucker Act. Holmes, 657
F.3d at 1312.
At the same time, we cautioned that the alleged
breach of a settlement agreement does not necessarily
give rise to Tucker Act jurisdiction. The plaintiff must
“demonstrat[e] that the agreement[] could fairly be inter-
preted as contemplating money damages in the event of a
breach.” Id. at 1315. A settlement that involved “purely
non-monetary relief”—such as a transfer from one office
to another—would not suffice for establishing Tucker Act
jurisdiction. Id. The plaintiff in Holmes had alleged that
the Department of the Navy (the “Navy”) breached two
agreements settling Title VII employment actions. Under
the terms of the settlement agreements, the Navy agreed
to expunge a suspension letter from Mr. Holmes’s person-
nel file and to document that he had resigned for personal
reasons. Id. The Navy also agreed to provide Mr. Holmes
with a “neutral reference” in response to inquiries from
future employers. Id. at 1316. Based on these terms, we
found that the settlement agreements contemplated
money damages.
We think that, in the context of the two agree-
ments, the purpose of documenting and expunging
Mr. Holmes's record clearly was to prevent Mr.
Holmes from being denied future employment
based on his record as the Navy maintained it pri-
or to the agreements. In short, the agreements in-
herently relate to monetary compensation through
relationship to Mr. Holmes’s future employment.
Further, there is no language in the agreements
8 CUNNINGHAM v. US
indicating that the parties did not intend for mon-
ey damages to be available in the event of breach.
Id.
In Holmes, the government argued that one of the
agreements at issue was a consent decree over which the
Claims Court could not exercise jurisdiction. Id. at 1316.
We disagreed with the government’s characterization of
the agreement and thus declined to address the question
of whether the Claims Court could exercise jurisdiction
over a claim alleging a violation of a consent decree. Id.
But not long after our decision in Holmes, we addressed
the relationship between consent decrees and Tucker Act
jurisdiction in VanDesande v. United States, 673 F.3d
1342 (Fed. Cir. 2012).
In VanDesande, the plaintiff sought damages in the
Claims Court for her federal employer’s breach of a set-
tlement agreement. The agreement, which settled a Title
VII claim, had been incorporated into a final order by an
EEOC administrative law judge. The Claims Court
dismissed the plaintiff’s suit on the basis that Tucker Act
jurisdiction did not extend to a settlement agreement that
had “been incorporated in a consent decree entered by
another court or administrative entity.” Id. at 1347.
We reversed, holding that “a settlement agreement,
even one embodied in a decree, ‘is a contract within the
meaning of the Tucker Act.’” Id. at 1351 (quoting Angle v.
United States, 709 F.2d 570, 573 (9th Cir. 1983)). We
noted that the Supreme Court has recognized that con-
sent decrees have a “dual character,” possessing attrib-
utes of both contracts and judicial orders. VanDesande,
673 F.3d at 1349 (citing United States v. ITT Cont’l Bak-
ing Co., 420 U.S. 223, 239 (1975)). “The legal status of a
Title VII consent decree,” we explained, “will depend upon
the nature of the case.” Id. at 1348. When a plaintiff
seeks to obtain the benefit of the bargain struck by the
plaintiff and the government in an underlying settlement
CUNNINGHAM v. US 9
agreement, the plaintiff is enforcing a contract. See id. at
1350. “If . . . a settlement agreement was no longer
enforceable as a contract once incorporated into a consent
decree, the effect would be to divest the Court of Federal
Claims of its Tucker Act jurisdiction by the simple act of a
court or agency adopting the agreement. We are unaware
of any act of Congress that would allow for such an out-
come.” Id.; see also Franklin-Mason v. Mabus, 742 F.3d
1051, 1055 (D.C. Cir. 2014) (transferring a federal em-
ployee’s claim alleging a breach of a Title VII settlement
agreement from a district court to the Claims Court
because permitting the district court to reserve exclusive
enforcement of the settlement agreement would “reduce
the scope” of the Claims Court’s jurisdiction and thus
“violate the time-honored rule that neither a court nor the
parties has the power to alter a federal court’s statutory
grant of subject matter jurisdiction”).
B
Under our decisions in Holmes and VanDesande, the
Claims Court possesses subject matter jurisdiction to hear
Mr. Cunningham’s breach-of-contract claim.
The circumstances of OPM’s alleged breach are sub-
stantially similar to the circumstances of the Navy’s
alleged breach in Holmes. As in Holmes, the purpose of
the key settlement terms is “to prevent [the former em-
ployee] from being denied future employment based on his
record as the [agency] maintained it prior to the agree-
ment[].” Holmes, 657 F.3d at 1316. The settlement
agreement here limited what information OPM could
disclose and required OPM to remove Mr. Cunningham’s
termination letter from his personnel file.
Mr. Cunningham, like the plaintiff in Holmes, alleges that
his former government employer damaged his future
employment prospects by breaching the agreement.
Moreover, there is no language in the agreement “indicat-
ing that the parties did not intend for money damages to
10 CUNNINGHAM v. US
be available in the event of breach.” Id. at 1316. We thus
find that the settlement agreement between
Mr. Cunningham and OPM “could fairly be interpreted as
contemplating money damages in the event of a breach.”
See id. at 1315.
The government points to two differences between the
settlement agreements at issue in Holmes and the settle-
ment agreement at issue in this case. First, the agree-
ments in Holmes were not incorporated into consent
decrees, whereas the agreement here was adopted in a
consent decree by the MSPB. Second, the agreements in
Holmes settled Title VII claims, whereas the agreement
here settled a claim arising under the Civil Service Re-
form Act (“CSRA”), which defines the authority of the
MSPB. See 5 U.S.C. § 7512. Neither difference warrants
depriving the Claims Court of subject matter jurisdiction.
We answered the government’s first point in
VanDesande. Like the plaintiff in VanDesande,
Mr. Cunningham is seeking to enforce the underlying
settlement agreement in order to obtain the benefit of his
bargain with his former government employer; he is not
asking the Claims Court to enforce the MSPB order. The
fact that the settlement agreement was incorporated into
a decree does not strip the agreement of its “character” as
a contract. See VanDesande, 673 F.3d at 1348–50.
As for the government’s characterization of
VanDesande as depending “upon the specific statutory
scheme under which [the] original claim arose,” Appel-
lee’s Br. 22, we see no language in VanDesande that ties
its holding to the specific statutory scheme of Title VII.
On the contrary, we suggested that “the nature of the
case”—the content of the underlying agreement and the
manner in which the plaintiff sought to enforce that
agreement—determined whether the Claims Court had
Tucker Act jurisdiction. VanDesande, 673 F.3d at 1347,
CUNNINGHAM v. US 11
1350–51. That reasoning applies with equal force to an
agreement settling a dispute arising under the CSRA.
We also find unpersuasive the government’s conten-
tion that the “comprehensive scheme” of the CSRA bars
Mr. Cunningham from seeking monetary damages for
breach of contract in the Claims Court. In Holmes, we
rejected that notion as it applied to Title VII. See Holmes,
657 F.3d at 1312. As the Claims Court correctly noted
here, the remedial schemes of the CSRA and Title VII are
similar. Cunningham, 108 Fed. Cl. at 215 (“In much the
same way as the CSRA established a ‘comprehensive and
integrated review scheme’ for the resolution of federal
personnel disputes, Title VII established an ‘exclusive,
pre-emptive administrative and judicial scheme for the
redress of federal employment discrimination.’” (quoting
United States v. Fausto, 484 U.S. 439, 454 (1988); Brown
v. Gen. Servs. Admin., 425 U.S. 820, 829 (1976))).
Moreover, the adjudication of Mr. Cunningham’s
claim for monetary relief does not involve the review of a
personnel action. See Fausto, 484 U.S. at 454 (holding
that the comprehensive scheme of the CSRA precludes
Tucker Act jurisdiction over the review of an agency’s
personnel determination); Bobula v. United States Dep’t of
Justice, 970 F.2d 854, 859 (Fed. Cir. 1992) (holding that
the Little Tucker Act does not confer jurisdiction over a
settlement agreement that requires the court to “review
the underlying personnel action”). Mr. Cunningham’s
suit does not require the Claims Court to review the facts
or law underlying his initial discrimination grievance
against OPM. Nor does his suit demand equitable relief
that might require OPM to undertake a personnel action.
Rather, Mr. Cunningham is seeking money damages to
compensate for income he would have earned from his
private employer had OPM not breached the settlement
agreement. See Holmes, 657 F.3d at 1316 (emphasis
added) (explaining that a statutory scheme does not
“preclude a suit for money damages in the event of breach
12 CUNNINGHAM v. US
that is separate from, or in addition to, the relief the
regulation provides”).
Therefore, we hold that Mr. Cunningham’s suit for
money damages under the Tucker Act falls within the
Claims Court’s jurisdiction.
II
Having determined that the Claims Court possesses
subject matter jurisdiction over Mr. Cunningham’s
breach-of-contract claim, we turn to the question of
whether the claim is barred by res judicata. We decide
that it is not.
A claim is barred by res judicata when “(1) the parties
are identical or in privity; (2) the first suit proceeded to a
final judgment on the merits; and (3) the second claim is
based on the same set of transactional facts as the first.”
Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.
Cir. 2003). The Claims Court found that
Mr. Cunningham’s suit satisfied all of the elements of res
judicata: the parties in the suit are the same parties that
appeared before the MSPB, Cunningham, 108 Fed. Cl. at
222; the MSPB issued a final judgment on the merits of
Mr. Cunningham’s petition to enforce the settlement
agreement, id.; and the two claims are based on the same
set of transactional facts—the same contract and the
same agency conduct, id. at 222–24. Although we do not
disagree with the Claims Court’s application of the three
res judicata elements to Mr. Cunningham’s claim, we find
that an exception to the rule is applicable here.
When applying the rule of res judicata, we have con-
sistently looked to the Restatement (Second) of Judg-
ments for guidance. See, e.g., Gillig v. Nike, Inc., 602 F.3d
1354, 1362–63 (Fed. Cir. 2010); Phillips/May Corp. v.
United States, 524 F.3d 1264, 1271 (Fed. Cir. 2008);
Ammex, 334 F.3d at 1056; Young Eng’rs, Inc. v. U.S. Int’l
Trade Comm’n, 721 F.2d 1305, 1313–14 (Fed. Cir. 1983).
CUNNINGHAM v. US 13
The Restatement and other authorities recognize that res
judicata should not bar a claim when a court’s remedial
authority in the first action prevented the plaintiff from
seeking the relief sought in the second action.
[T]he general rule of [res judicata] does not apply
to extinguish the claim, and part or all of the
claim subsists as a possible basis for a second ac-
tion by the plaintiff against the defendant[,]
[when] [t]he plaintiff was unable to rely on a cer-
tain theory of the case or to seek a certain remedy
or form of relief in the first action because of the
limitations on the subject matter jurisdiction of
the courts or restrictions on their authority to en-
tertain multiple theories or demands for multiple
remedies or forms of relief in a single action, and
the plaintiff desires in the second action to rely on
that theory or to seek that remedy or form of re-
lief . . . .
Restatement (Second) of Judgments § 26(1)(c). 2
2 See also id. § 26 cmt. c (“The general rule of [res
judicata] is largely predicated on the assumption that the
jurisdiction in which the first judgment was rendered was
one which put no formal barriers in the way of a litigant’s
presenting to a court in one action the entire claim includ-
ing any theories of recovery or demands for relief that
might have been available to him under applicable law.
When such formal barriers in fact existed and were opera-
tive against a plaintiff in the first action, it is unfair to
preclude him from a second action in which he can pre-
sent those phases of the claim which he was disabled from
presenting in the first.”); Charles Allen Wright, et al.,
Federal Practice & Procedure § 4412 (2d ed.) (“When
special jurisdictional limitations prevent assertion of all
matters arising out of a single transaction in one action, a
14 CUNNINGHAM v. US
“For purposes of res judicata,” the Claims Court stat-
ed, “the remedy sought by the plaintiff is irrelevant in
determining whether two actions are based upon the
same transactional facts.” Cunningham, 108 Fed. Cl. at
223. While that may be true, it is the remedies available
to the plaintiff in a forum of limited jurisdiction, not the
remedies sought by the plaintiff, that determine whether
res judicata bars a subsequent claim in a different forum.
See Restatement (Second) of Judgments § 26(1)(c); cf.
United States v. Tohono O’Odham Nation, 131 S. Ct.
1723, 1734 (2011) (Sotomayor, J., concurring) (“The
jurisdictional scheme governing actions against the
United States often requires . . . plaintiffs to file two
actions in different courts to obtain complete relief in
connection with one set of facts.”). Here, the remedy
available in the Claims Court—damages for OPM’s
breach of the settlement agreement—was not available in
the MSPB due to the agency’s limited jurisdiction.
Under the authority granted to the MSPB under the
CSRA, the MSPB could only enforce compliance with the
terms of the settlement agreement between
Mr. Cunningham and OPM. See 5 U.S.C. § 1204(a)(2)
(granting the MSPB the power to compel a federal agency
to comply with orders of the Board). The MSPB does not
possess authority to award monetary damages for the
breach of a settlement agreement. Foreman v. Dep’t of
Army, 241 F.3d 1349, 1352 (Fed. Cir. 2001). This jurisdic-
tional barrier prevented Mr. Cunningham from seeking
complete relief for OPM’s breach of contract. He is there-
second action is not precluded. For federal courts, the
limitations may be embodied in special jurisdictional
statutes that prove inadequate to support resolution of all
disputes arising out of the same setting, or may result
from the inherently limited character of the first proceed-
ing.”).
CUNNINGHAM v. US 15
fore not barred from pursuing a second claim, against the
same party based on the same set of transactional facts,
in a court that has the authority to grant the relief that
was unavailable to him in the first action. See Restate-
ment (Second) of Judgments § 26(1)(c); see also Gurley v.
Hunt, 287 F.3d 728, 731 (8th Cir. 2002) (holding that res
judicata did not bar an unfair-labor-practice claim in
federal district court that had previously been litigated to
a final judgment before the National Labor Relations
Board because the Board was “not authorized to award
full compensatory or punitive damages to individuals
affected by the unfair labor practice”).
The government acknowledges the exception de-
scribed in Restatement (Second) of Judgments § 26(1)(c)
but suggests that the exception “should not apply in this
instance [because the] exception is primarily triggered
when there are limitations on the jurisdiction of a system
of courts.” Appellee’s Br. 38 n.9. We see no reason,
however, to treat limitations on the jurisdiction of an
agency differently than limitations on the jurisdiction of a
court for the purposes of res judicata. Indeed, an agency’s
decisions have preclusive effect only when that agency is
“acting in a judicial capacity.” United States v. Utah
Constr. & Min. Co., 384 U.S. 394, 422 (1966). It would be
odd to apply the rule of res judicata, but not the rule’s
exceptions, to the decision of an agency that is acting like
a court.
The Restatement agrees, stating that “a valid and fi-
nal adjudicative determination by an administrative
tribunal has the same effects under the rules of res judi-
cata, subject to the same exceptions and qualifications, as
a judgment of a court.” Restatement (Second) of Judg-
ments § 83(1) (emphasis added). If anything, the Re-
statement suggests that courts should be more cautious
before giving preclusive effect to the final determinations
of administrative agencies. See id. § 83 cmt. f (“The array
of exceptions to the rules of res judicata that may be
16 CUNNINGHAM v. US
applicable to administrative determinations is at least as
broad as with respect to judicial tribunals.”); id. § 83
cmt. g (“[T]he exceptions stated in § 26(1)(c) and (d) are
particularly important in considering claim preclusion
with respect to an administrative agency determina-
tion.”).
Our decision in Phillips/May Corp. v. United States,
524 F.3d 1264 (Fed. Cir. 2008), upon which both the
Claims Court and the government rely, is consistent with
the exception in § 26(1)(c) of the Restatement. In that
case, a contractor pursued a breach-of-contract claim in
the Claims Court after having litigated nine other claims
arising out of the same construction contract at the Board
of Contract Appeals (“BCA”). Phillips/May, 524 F.3d at
1266–67. We affirmed the decision of the Claims Court
that the contractor’s claim was barred by claim preclu-
sion. Id. at 1273.
Unlike Mr. Cunningham at the MSPB, the contractor
in Phillips/May could have obtained complete relief at
the BCA. The Contract Disputes Act “established the
agency boards and the Court of Claims as alternative
initial venues for the litigation of claims both for equita-
ble adjustment and for breach of contract.” Id. at 1269.
Under the Act, the BCA “may grant any relief that would
be available to a litigant asserting a contract claim in the
United States Court of Federal Claims.” 41 U.S.C.
§ 7105(e)(2). The contractor’s first stop, the BCA, had
remedial jurisdiction to award the same relief as the
Claims Court. Mr. Cunningham’s first stop, by contrast,
did not possess jurisdiction to award the same relief as
the Claims Court. The MSPB could not award monetary
damages for breach of contract. See Foreman, 241 F.3d at
1352.
Although Mr. Cunningham is suing the same party
for the same breach of contract, he is entitled to seek a
form of relief—money damages—that was unavailable to
CUNNINGHAM v. US 17
him before the MSPB due to limits on the agency’s reme-
dial jurisdiction. Therefore, the doctrine of res judicata
does not bar Mr. Cunningham’s breach-of-contract claim
in the Claims Court.
CONCLUSION
For the foregoing reasons, we reverse the decision of
the Claims Court dismissing Mr. Cunningham’s com-
plaint. The case is remanded to the Claims Court for
further proceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
Each party shall bear its own costs.