Higbie v. United States

United States Court of Appeals
for the Federal Circuit
______________________

RICHARD HIGBIE,
Plaintiff-Appellant,

v.

UNITED STATES,
Defendant-Appellee.
______________________

2014-5042
______________________

Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00270-EJD, Judge Edward J.
Damich.
______________________

Decided: January 14, 2015
______________________

DAMON MATHIAS, Schulman Mathias PLLC, of Dallas,
Texas, argued for plaintiff-appellant.

DOMENIQUE GRACE KIRCHNER, Senior Trial Attorney,
Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued
for defendant-appellee. On the brief were STUART F.
DELERY, Assistant Attorney General, ROBERT E.
KIRSCHMAN, JR., Director, STEVEN J. GILLINGHAM, Assis-
tant Director, and MICHAEL P. GOODMAN, Trial Attorney.

______________________
2 HIGBIE v. US

Before LOURIE, REYNA, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge TARANTO.
REYNA, Circuit Judge.
Richard Higbie appeals the Court of Federal Claims’
dismissal of his claim for money damages against the
United States Government for alleged breach of a confi-
dentiality provision in an alternative dispute resolution
agreement. The Court of Federal Claims determined that
a purely non-monetary form of relief was available for any
potential breach and, as a result, required Mr. Higbie to
show the agreement could be fairly interpreted to con-
template damages. The Court of Federal Claims found
that Mr. Higbie failed to make the required showing and
dismissed his case for lack of jurisdiction under the Tuck-
er Act. We agree that Mr. Higbie has not shown that the
agreement in question can be fairly interpreted to con-
template money damages in the event of breach. As a
result, the Court of Federal Claims lacked jurisdiction
under the Tucker Act. We therefore affirm.
BACKGROUND
Mr. Higbie was employed as a Senior Criminal Inves-
tigator in the Dallas office of the Bureau of Diplomatic
Security, a division of the United States State Depart-
ment (“State Department”). In January 2009, Mr. Higbie
contacted an equal employment opportunity (“EEO”)
counsel to complain of alleged reprisal by the State De-
partment for activity he had engaged in which he claimed
was protected under the Civil Rights Act of 1964. Mr.
Higbie filed a formal complaint in April 2009 and submit-
ted a request that his complaint be processed through the
State Department’s alternative dispute resolution
(“ADR”) program. The Government approved his case for
mediation.
HIGBIE v. US 3

During the lead up to the mediation, Mr. Higbie re-
peatedly inquired whether the mediation proceedings
would be confidential. On several occasions, a State
Department representative confirmed that they would be.
According to Mr. Higbie, he was “purposefully negotiat-
ing” for confidentiality of the mediation by his repeated
questions so as to prevent his supervisors from “using
anything that occurred” during the proceedings against
him in his employment.
Three of Mr. Higbie’s supervisors, including Marian
Cotter and Jeffrey Thomas, signed the mediation agree-
ment that would govern the proceedings. That agreement
included the following confidentiality provision:
Mediation is a confidential process. Any docu-
ments submitted to the mediator(s) and state-
ments made during the mediation are for
settlement purposes only.
J.A. 127 (underlining in original). The parties did not
resolve their dispute through mediation, and the EEO
investigation continued. After the mediation, Ms. Cotter
and Mr. Thomas provided affidavits to the EEO investiga-
tor, which are the basis for Mr. Higbie’s claim for breach
of contract. In their affidavits, Ms. Cotter and Mr. Thom-
as discussed the nature and content of Mr. Higbie’s
statements in the mediation proceedings and cast his
participation in the proceedings in a negative light.
In October 2011, Mr. Higbie filed suit in the Federal
District Court for the Northern District of Texas, assert-
ing numerous causes of action, including claims for retali-
ation and discrimination. Mr. Higbie’s complaint also
included a claim for violation of the Alternative Dispute
Resolution Act of 1996 (“ADRA claim”) arising out of the
two affidavits, provided by Ms. Cotter and Mr. Thomas, to
the EEO-assigned investigator. According to Mr. Higbie,
the information obtained through the mediation process
was governed by a strict confidentiality provision outlined
4 HIGBIE v. US

in the mediation agreement, and the disclosure of the
affidavits constituted a breach of that provision.
The State Department moved to dismiss the ADRA
claim for failure to state a claim upon which relief can be
granted because the ADRA statute does not provide for
recovery of money damages for breach of a confidentiality
agreement. The district court granted the motion and also
granted Mr. Higbie leave to file an amended complaint.
Through amendment, Mr. Higbie removed his ADRA
claim and, in its stead, alleged a claim sounding in con-
tract for breach of the confidentiality provision. Mr.
Higbie moved to transfer the newly added contract claim
to the Court of Federal Claims. The district court granted
the motion, leaving Mr. Higbie’s other claims pending
before the district court. Mr. Higbie then filed a transfer
complaint in the Court of Federal Claims.
After the transfer, the Government moved in the
Court of Federal Claims to dismiss Mr. Higbie’s complaint
for lack of jurisdiction on the grounds that the mediation
agreement did not meet the judicially-imposed require-
ment that the agreement in question be money-
mandating. In opposing the motion, Mr. Higbie argued
that all mediation agreements contemplate money dam-
ages for breach of confidentiality agreements. Mr. Higbie
drew support from a single case from California dealing
with money damages, a single state statute from Florida
discussing money damages for breach of confidentiality in
mediation, and a series of other cases having no relation
to the award of money damages for breach of a confidenti-
ality provision.
The Court of Federal Claims found Mr. Higbie’s ar-
guments unpersuasive. The court acknowledged the
presumption that a damages remedy is available for
breach of contract. Where a purely non-monetary remedy
exists, however, the court explained that it can require a
showing that the contract can be fairly read to contem-
HIGBIE v. US 5

plate monetary damages before it may exercise jurisdic-
tion under the Tucker Act. Here, the court found the
agreement in the dispute “clearly does not contemplate
money damages,” nor does it “address anything remotely
monetary.” Higbie v. United States, 113 Fed. Cl. 358, 364
(2013). Further, it found that the non-binding authorities
Mr. Higbie cited do not establish that money damages
should be awarded for any breach of mediation confiden-
tiality in this case. Id. at 365. Thus, the Court of Federal
Claims concluded that Mr. Higbie had not met his burden
of showing the agreement could be fairly read to contem-
plate money damages, and dismissed his complaint for
lack of jurisdiction.
Mr. Higbie appeals the dismissal of his complaint. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review a dismissal by the Court of Federal Claims
for lack of jurisdiction de novo. Holmes v. United States,
657 F.3d 1303, 1309 (Fed. Cir. 2011).
I
The Tucker Act confers jurisdiction upon the Court of
Federal Claims over “any claim against the United States
founded . . . upon any express or implied contract with the
United States . . . .” 28 U.S.C. § 1491(a)(1) (2011). This
jurisdictional provision operates to waive the sovereign
immunity of the United States for claims premised on
other sources of law, such as a contract or statute. United
States v. Navajo Nation, 556 U.S. 287, 290 (2009). The
Tucker Act, however, does not create a substantive cause
of action, and, as such, “a plaintiff must identify a sepa-
rate source of substantive law that creates the right to
monetary damages.” Fisher v. United States, 402 F.3d
1167, 1127 (Fed. Cir. 2005). While the separate source of
law need not explicitly provide for enforcement through
damages, liability is triggered only if the source can be
6 HIGBIE v. US

fairly interpreted as mandating compensation from the
Government. Navajo Nation, 556 U.S. at 290 (citation
omitted).
Contract law is a separate source of law compensable
under the Tucker Act. See id. As with private agreements,
when a government contract is breached, there is a pre-
sumption that a damages remedy will be available. Sand-
ers v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001).
Typically, in a contract case, the presumption that money
damages are available satisfies the Tucker Act’s money-
mandating requirement. Holmes, 657 F.3d at 1314.
The Government, however, has not consented to suit
under the Tucker Act for every contract. Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008) (citations omitted). For instance, contracts that are
entirely concerned with the conduct of parties in a crimi-
nal case, without a clear, unmistakable statement trigger-
ing monetary liability, do not invoke Tucker Act
jurisdiction. Sanders, 252 F.3d at 1336. Express disavow-
als of money damages within a contract’s terms likewise
defeat jurisdiction. Holmes, 657 F.3d at 1314. Tucker Act
jurisdiction may also be lacking if relief for breach of
contract could be entirely non-monetary. In such a case, it
is “proper for the court to require a demonstration that
the agreements could fairly be interpreted as contemplat-
ing monetary damages in the event of breach.” Id. at
1315.
II
Mr. Higbie argues that he presented sufficient evi-
dence to demonstrate that the mediation agreement can
fairly be interpreted as contemplating monetary damages.
To support his contention, Mr. Higbie purports to rely on
(1) the terms of the contract itself; (2) negotiations in
which he asked the government to confirm that the medi-
ation would be confidential; and (3) instances of legisla-
tive and judicial support for awarding damages for breach
HIGBIE v. US 7

of a confidentiality provision. In an effort to show that the
terms of the contract fairly contemplate money damages,
Mr. Higbie cites portions of the Equal Employment Op-
portunity Commission’s website, which recognize the
importance of confidentiality to mediation, and congres-
sional findings discussing the general benefits of ADR
proceedings, such as efficiency at achieving settlements
and reducing backlog in the federal courts.
In response, the Government argues that there is no
indication the terms of the mediation agreement contem-
plated money damages. Regarding Mr. Higbie’s requests
that the Government confirm the confidentiality of the
proceedings, the Government contends that Mr. Higbie
has not shown that he contemplated money damages for a
breach of the confidentiality provision, or that he commu-
nicated any such belief to the Government. Rather, ac-
cording to the Government, the confidentiality provision
in question appears to be nothing more than the standard
clause that appears in all such mediation agreements.
Relying on Rule 408 of the Federal Rules of Evidence,
which deems inadmissible as evidence the “conduct or
statements made in compromise negotiations,” the Gov-
ernment argues the appropriate, non-monetary remedy in
such circumstances is exclusion of any improper disclo-
sures from future proceedings.
As a threshold issue, we must decide whether it was
appropriate for the Court of Federal Claims to require Mr.
Higbie to show that the agreement fairly contemplated
monetary damages. While the agreement does not provide
a monetary remedy, it does restrict the use of statements
made during mediation to “settlement purposes only.”
J.A. 27 (emphasis added). In other words, any statements
made during the mediation must not be used for any
purpose other than settlement. Thus, the agreement itself
provides a remedy for the breach of the non-disclosure
provision: exclusion of statements made during mediation
from proceedings unrelated to the mediation. Per the
8 HIGBIE v. US

terms of the agreement, the affidavits of Ms. Cotter and
Mr. Thomas could be excluded from the EEO investiga-
tion. The appropriateness of this remedy is consistent
with Rule 408 of the Federal Rules of Evidence, which
excludes the content of parties’ negotiations from other
legal proceedings. This provision requiring the exclusion
of statements made during the mediation proceeding from
any other proceeding is a purely non-monetary remedy
provided by the agreement. It follows that the Court of
Federal Claims did not err in imposing the requirement to
show that the agreement could be fairly interpreted as
contemplating money damages. Holmes, 657 F.3d at 1315.
Next, we consider whether Mr. Higbie has shown that
the agreement can be fairly interpreted as contemplating
money damages. On appeal, Mr. Higbie argues the terms
of the agreement itself show that it contemplates money
damages, but he does not point to a single provision in the
agreement indicating money damages were contemplated.
Having reviewed the agreement, we perceive no error in
the Court of Federal Claims’ finding that it does not
expressly contemplate money damages. As such, the
terms of the agreement itself do not support the assertion
that the agreement can be fairly interpreted to contem-
plate money damages. 1

1 In Cunningham v. United States, 748 F.3d 1172
(Fed. Cir. 2014), a case neither party cited, this court
considered breach of a confidentiality provision in a
settlement agreement and found that the agreement was
money-mandating. In Cunningham (as in Holmes), the
agreement in question was a settlement agreement that
created specific duties owed by the Government to that
particular plaintiff, unlike this case where the agreement
employs boilerplate common to agreements associated
with similar mediation proceedings. The agreement in
this case served to guide the mediation process, which in
HIGBIE v. US 9

Similarly, Mr. Higbie relies on his negotiations with
the Government, without pointing to any communication
in which it is apparent that either party contemplated the
availability of money damages for breach of the agree-
ment. Thus, the confidentiality discussions also do not
support the assertion that the agreement contemplated
money damages.
Finally, Mr. Higbie’s appeal to non-binding and inap-
plicable legal authority and governmental policy is una-
vailing. Mr. Higbie cited only non-controlling state law
before the Court of Federal Claims and cites no case law
in his appeal brief before this court. The single statute he
cites governs breaches in Florida. It is well-settled that
state law generally does not govern disputes involving
contracts to which the Government is a party. Prudential
Ins. Co. of Am. v. United States, 801 F.2d 1295, 1298 (Fed.
Cir. 1986). Additionally, the governmental policies on
which Mr. Higbie relies show that confidentiality is an
important component of the mediation process but do not
speak to the remedy available for breach of confidentiali-
ty. Our applicable case law focuses on the existence of a
money-mandating provision in the agreements involved in
each dispute, not the principles which might be important
in legal proceedings involving the Government and a
private party. See, e.g., Holmes, 657 F.3d at 1315. In sum,
Mr. Higbie fails to show that the mediation agreement
involved in this dispute is money-mandating.
CONCLUSION
The Court of Federal Claims did not err in requiring
Mr. Higbie to show that the mediation agreement could be

the end was unsuccessful as the parties failed to reach
settlement. Additionally, Mr. Higbie does not argue that
the agreement creates any specific duty owed by the
Government that applies particularly to him.
10 HIGBIE v. US

fairly interpreted to contemplate money damages because
non-monetary relief was available. Mr. Higbie has failed
to make such a showing. The Court of Federal Claims
correctly concluded that it does not have jurisdiction over
Mr. Higbie’s case under the Tucker Act and, therefore,
properly dismissed his claim for breach.
AFFIRMED
 United States Court of Appeals
for the Federal Circuit
______________________

RICHARD HIGBIE,
Plaintiff-Appellant,

v.

UNITED STATES,
Defendant-Appellee.
______________________

2014-5042
______________________

Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00270-EJD, Judge Edward J.
Damich.
______________________

TARANTO, Circuit Judge, dissenting.
I do not see a sufficient justification for excepting the
confidentiality promise in the mediation agreement at
issue from the strong general rule that contracts implicit-
ly carry a damages remedy for their breach. In my view,
the default damages remedy is available to Mr. Higbie if
he proves entitlement to it, and the Court of Federal
Claims therefore has jurisdiction under the Tucker Act. I
would reverse the jurisdictional dismissal and remand for
the parties to address the merits. Accordingly, I dissent
from the affirmance of the Court of Federal Claims’ judg-
ment dismissing Mr. Higbie’s case for lack of jurisdiction.
2 HIGBIE v. US

A
This court’s decision in Holmes v. United States, 657
F.3d 1303 (Fed. Cir. 2011), rested on its recognition of a
principle long understood in contract law: “damages are
always the default remedy for breach of contract.” United
States v. Winstar Corp., 518 U.S. 839, 885 (1996) (plurali-
ty opinion) (citing Restatement (Second) of Contracts
§ 346, cmt. a (1981); 3 E. Farnsworth, Contracts § 12.8,
p. 185 (1990)), cited in Holmes, 657 F.3d at 1314. That
principle broadly applies to establish Tucker Act jurisdic-
tion in contract disputes, even though contracts them-
selves often do not provide for damages relief: the default
remedy from background law suffices. As Holmes stated,
“[n]ormally[,] contracts do not contain provisions specify-
ing the basis for the award of damages in case of
breach. . . . [I]n a contract case, the money-mandating
requirement for Tucker Act jurisdiction normally is
satisfied by the presumption that money damages are
available for breach of contract, with no further inquiry
being necessary.” 657 F.3d at 1314 (internal quotation
marks and citation omitted).
There is good reason to follow, rather than depart
from, that well-established and broadly applicable default
rule here. For one thing, strong adherence to background
rules is especially important with contracts. In contract
interpretation, “a court properly takes account of back-
ground legal rules—the doctrines that typically or tradi-
tionally have governed a given situation when no
agreement states otherwise. Indeed, ignoring those rules
is likely to frustrate the parties’ intent and produce
perverse consequences.” US Airways, Inc. v. McCutchen,
569 U.S. ___, 133 S. Ct. 1537, 1549 (2013) (citations
omitted).
More specifically, money damages are available as a
remedy for breach of confidentiality provisions of con-
tracts in a variety of contexts. See, e.g., Youtie v. Macy’s
HIGBIE v. US 3

Retail Holding, Inc., 626 F. Supp. 2d 511, 523–27 (E.D.
Pa. 2009) (holding that money damages were available for
a breach of contract claim for violation of a confidentiality
provision of an employment contract); Davidson v. Cao,
211 F. Supp. 2d 264, 280–84 (D. Mass. 2002) (denying a
motion to dismiss a breach of contract claim for money
damages for violation of a confidential disclosure agree-
ment); Doe v. Portland Health Centers, Inc., 782 P.2d 446,
448–49 (Or. App. 1989) (denying a motion to dismiss a
breach of contract claim for money damages for violation
of a “patient confidentiality statement,” stating that “we
do not agree that . . . damages [other than those for emo-
tional suffering] are unavailable as a matter of law”).
Doubtless there are complexities, but there appears to be
nothing out of the ordinary or unexpected about the
availability of monetary relief, where harm and damages
are proved, for breach of confidentiality promises.
The limited case law on confidentiality commitments
in mediation agreements seems to be in accord. E.g.,
Bethlehem Area Sch. Dist. v. Zhou, No. 09-03493, 2012
WL 930998, at *1 (E.D. Pa. Mar. 20, 2012) (“This matter
presently involves a contract provision that proceedings
before a mediator be kept confidential. I conclude that
the contract was breached, claimant Diana Zhou’s motion
for summary judgment must be granted, she is entitled to
nominal damages of $1, and at trial she may present
evidence of actual damages.”); Bashaw v. Johnson, No. 11-
2693-JWL, 2012 WL 1623483, at *3–4 (D. Kan. May 9,
2012) (“According to defendant, plaintiffs, after the medi-
ation failed, violated the confidentiality agreement. . . .
[Defendant] certainly [has] a plausible claim for damages
stemming from the alleged breach.”). The government
has not identified any on-point contrary authority.
B
The default rule is not absolute, but I do not see a ba-
sis for an exception in this case.
4 HIGBIE v. US

1. As Holmes noted, one exception applies when “[a]
contract expressly disavow[s] money damages.” Holmes,
657 F.3d at 1314. But there is no such express disavowal
in the agreement at issue here. Nor is there a sound basis
for finding an implicit disavowal.
The confidentiality provision declares that
“[m]ediation is a confidential process” and that “state-
ments made during the mediation are for settlement
purposes only.” J.A. 127 (underlining deleted). The
government and the majority view this as providing
affirmatively for the “remedy” of exclusion from evidence.
Even if that characterization is accepted, however, the
provision cannot reasonably be taken to eliminate the
default monetary remedy. The specification of the eviden-
tiary “remedy” has a ready explanation that in no way
implies ouster of the monetary remedy. After all, one
familiar background principle is that the availability of
monetary damages, where such damages are adequate,
renders unavailable equitable relief, such as specific
performance of the confidentiality/settlement-use-only
promise. 1 With that preference for legal remedies in the

1 Restatement (Second) of Contracts § 359(1) (1981)
(“Specific performance or an injunction will not be ordered
if damages would be adequate to protect the expectation
interest of the injured party.”); see also Texas v. New
Mexico, 482 U.S. 124, 131 (1987) (“[S]pecific performance
. . . [is] an equitable remedy that requires some attention
to the relative benefits and burdens that the parties may
enjoy or suffer as compared with a legal remedy in dam-
ages.”); Javierre v. Cent. Altagracia, 217 U.S. 502, 508
(1910) (“[A] suit for damages would have given adequate
relief, and therefore the appellee should have been con-
fined to its remedy at law. . . . [T]he court would not
undertake to decree specific performance . . . .”); Dow
Chem. Co. v. United States, 226 F.3d 1334, 1345–46 (Fed.
HIGBIE v. US 5

background, it makes perfect sense for a contract to
provide expressly for a non-monetary remedy to ensure its
availability, without any implication that the new remedy
is to be exclusive. The natural inference is that this kind
of specified remedy supplements but does not supplant
the default damages remedy. A fortiori for a provision
that is not even worded as a “remedy” provision.
If the new remedy, or other aspects of the contractual
context, were somehow inconsistent with preserving the
background rule, an implication of override might be
warranted. Cf. United States v. Fausto, 484 U.S. 439, 452
(1988) (background presumption that Congress intends
judicial review of agency action to be available is dis-
placed when that presumption is contrary to a specific
statutory scheme at issue). But there has been no such
showing here. As indicated by the authorities allowing
damages for mediation-confidentiality breach, and the
absence of contrary authorities, the availability of a
remedy of money damages—which must be proven, of
course—appears to be consistent with the mediation
context and the specific remedy of evidentiary exclusion.
The government has not explained why there is any
inconsistency.
Moreover, the government has not shown—it has not
even meaningfully contended—that evidentiary exclusion
will always, or even regularly, suffice to cure all normally
compensable injuries from breach of confidentiality. It is
easy to imagine reputational harms and even job-related
harms, as well as increased costs of resolving the dispute
that gave rise to the mediation. As to the latter, for
example, Mr. Higbie might incur delay and expense from

Cir. 2000) (“Because rescission is essentially an equitable
remedy, it will not ordinarily be invoked where money
damages—in this case damages for breach of contract—
will adequately compensate a party to the contract.”).
6 HIGBIE v. US

additional proceedings in the resolution of his discrimina-
tion claim because the EEO investigator, at an early
stage, might have been influenced by knowledge of Mr.
Higbie’s alleged stonewalling in the mediation. Some-
times, perhaps often, there will be no such harms. In that
case, there should be no damages. But that is a merits
judgment, not one about the general unavailability of
monetary relief even for proven harm from breach of this
kind of contract.
2. This court has recognized an exception to Tucker
Act jurisdiction for a contract claim based on “[a]n agree-
ment ‘entirely concerned with the conduct of parties in a
criminal case.’” Holmes, 657 F.3d at 1314 (quoting Sand-
ers v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001));
see Kania v. United States, 650 F.2d 264, 268–69 (Ct. Cl.
1981). But that exception is not directly applicable to Mr.
Higbie’s case, which has nothing to do with criminal law.
And the expressed rationales for the exception do not
justify creating a new exception applicable here.
The criminal-case exception traces back to Kania.
There, the Court of Claims considered whether an agree-
ment not to prosecute made between an Assistant United
States Attorney and a plaintiff was money-mandating.
Kania, 650 F.2d at 266–68. The court held that it was
not. Id. at 267. The court’s rationale was that the agree-
ment did not evidence that the AUSA had authority to
obligate payment by the government in the event of
breach. Id. at 268. The court thought a demonstration of
authority was essential in the criminal context because
criminal cases were themselves outside the purview of the
Court of Claims. Id. at 268–69.
In Sanders, this court stressed the narrowness of the
criminal exception articulated in Kania, explaining that
the Kania exception disrupts the normal presumption of
money damages for breach of contract only “where the
agreement is entirely concerned with the conduct of
HIGBIE v. US 7

parties in a criminal case.” Sanders, 252 F.3d at 1334; see
id. at 1336. This court held that such an agreement could
“theoretically, provide for monetary liability for breach
. . . . But such liability should not be implied, and could
exist only if there was an unmistakable promise to subject
the United States to monetary liability.” Id. at 1336.
Sanders rested this distinctive presumption for the purely
criminal context on Kania’s concern about the jurisdic-
tional divide in criminal cases, noting that “the Supreme
Court has made clear that claims for breach of plea
agreements and other agreements unique to the criminal
justice system should be brought in the courts in which
they were negotiated and executed.” Id. at 1336. Im-
portantly, Sanders retained the normal presumption of
money damages for breach with regard to the vast majori-
ty of contracts, including those that intersect with crimi-
nal law but have some civil component. Id. at 1334.
In light of these precedents, the criminal exception
has no bearing here. Mr. Higbie’s mediation agreement
falls entirely outside of criminal law. And because media-
tion is not a legal setting foreign to this court’s docket,
Mr. Higbie’s contract does not give rise to the jurisdic-
tional concern animating Kania and Sanders. 2
3. Outside the disavowal and criminal-case settings,
it appears that only once, in Rick’s Mushroom Service,
Inc. v. United States, 521 F.3d 1338 (Fed. Cir. 2008), has
this court held a contract not to carry the default mone-

2 The government has not argued that the jurisdic-
tional issue here turns on whether the officials who
entered into the agreement with Mr. Higbie lacked au-
thority to obligate funds in the event of breach. Indeed,
when asked at oral argument whether the officials had
authority to obligate funds, the government responded
that the issue of authority “go[es] to the merits of the
case.”
8 HIGBIE v. US

tary remedy. But, as Holmes indicated, Rick’s involved a
“unique cost-share agreement,” Holmes, 657 F.3d at 1315,
and a broader rationale is not apparent. See Rick’s, 521
F.3d at 1343. There is no reason to draw from Rick’s a
lesson applicable to bar Mr. Higbie’s claim at the jurisdic-
tional threshold.
Rick’s involved an agreement between the govern-
ment and a waste facility: the government was to provide
specifications detailing how the facility could be con-
structed and operated in a conservation-friendly manner;
the facility—if it complied—was to be entitled to pay-
ments to help defray the facility’s costs. Id. at 1341, 1344.
Under the agreement, the government provided specifica-
tions and paid the facility for following them. Neverthe-
less, the facility was sued by a third party for allegedly
violating state and federal environmental laws, and the
facility eventually settled. Id. at 1341–42. When the
facility asked the government for indemnification, the
government refused, and the facility then sued the gov-
ernment in the Court of Federal Claims. Id. at 1342.
This court affirmed the jurisdictional dismissal of the suit.
The parties, notably, did not contend that the contract
itself was a source of substantive law that created a right
to money damages. See generally Brief for Plaintiff-
Appellant, Rick’s, 521 F.3d 1338 (No. 07-5137), 2007 WL
2734363; Brief for Defendant-Appellee, Rick’s, 521 F.3d
1338 (No. 07-5137), 2007 WL 3264969; Reply Brief for
Plaintiff-Appellant, Rick’s, 521 F.3d 1338 (No. 07-5137),
2007 WL 4739079. As this court noted, “[the facility] d[id]
not point to a money-mandating source of law to establish
jurisdiction under 28 U.S.C. § 1491(a)(1) for its breach of
contract claim. Instead, [the facility] attempt[ed] to rely
on the [Contract Disputes Act] as the source of its sub-
stantive right to recover money damages and to establish
jurisdiction under 28 U.S.C. § 1491(a)(2).” Rick’s, 521
F.3d at 1343.
HIGBIE v. US 9

The absence of a straight contract-based contention
fits with a rationale this court expressed in discussing one
of the claims that the facility actually made; namely, the
absence of authority to obligate funds in the government
official that signed the agreement. The Anti-Deficiency
Act prohibits procurement agencies and employees from
“entering into a contract for future payment of money in
advance of, or in excess of, an existing appropriation.”
Hercules Inc. v. United States, 516 U.S. 417, 427 (1996)
(citing 31 U.S.C. § 1341). In rejecting the facility’s related
claim for equitable indemnification, the court stated that
“the contracting officer would have no authority under the
ADA to enter into an indemnity agreement without an
appropriation.” Rick’s, 521 F.3d at 1346. The govern-
ment has not advanced such a rationale as a basis for the
jurisdictional dismissal here. See supra note 2.
Perhaps a full understanding of the context in Rick’s
would make clear the inconsistency of any monetary
remedy with the statutory and regulatory regime under
which the cost-sharing agreement was made in that case.
But whatever the reach of Rick’s, I see no reason for
extending its result to this case.
C
It may well be that Mr. Higbie cannot succeed on his
damages claim for breach of contract, or even that his
current pleading is deficient. See, e.g., Sarsfield v. Cnty.
of San Benito, No. 07-cv-02528 JF, 2010 WL 1929619, at
*8–9 (N.D. Cal. May 12, 2010) (holding that “[p]laintiff
fail[ed] to plead, let alone show evidence of, cognizable
damages he suffered as a result” of an alleged breach of
the confidentiality provision of a mediation agreement).
But that possibility—mentioned without suggestion as to
its substantiality—goes to the merits of Mr. Higbie’s
claim. Here, we are deciding only a threshold jurisdic-
tional issue: whether Mr. Higbie is entitled to plead
breach and seek money damages under the contract.
10 HIGBIE v. US

Because, in my view, the strong presumption that money
damages are available for breach of contract answers this
question in the affirmative, I respectfully dissent.