Next case is Richard Higby versus the United States 2014-5042. We're ready when you are Mr. McThayon. Morning, my name is Damon McThayon and I represent the appellant Richard Higby. As a Richard Higby versus the United States, I'm here today on a breach of the mediation agreement. The case was dismissed and the tribal court did the fact that the judge found that there was no type of act jurisdiction and that the contract between Richard Higby and the United States and the mediation was not a money-mandating contract. I believe that was error. First and foremost, I believe there was a valid contract between Richard Higby and the United States. As far as the money-mandating requirement that we were... Within the mediation clause that we're looking at, here's this case. Is there a money-mandating requirement or is there any requirement? I'm talking only about the mediation agreement. Is there any requirement for monetary damages? There is nothing explicitly in the agreement that we call for money damages
. What's your argument that the mediation agreement is money-mandating? Our argument is that there is a presumption that when there's a breach of contract, there are damages. The case law says that there's no requirement that there explicitly be listed that damages are absolutely required. To be explicitly into the contract itself, the language that you come armed with the presumption of damages granted in homes, where there are cases where there is the potential for equitable relief and that would be outside of the money damages. A point of need to show that there was actually damages that could be... This relates to the jurisdiction of the Court of Federal Planks. That's a fairly circumscribed, established situation. Why should we be expanding the jurisdiction? Is there any law interpreting breach of agreement to mediate as being money-mandating? What I would actually rely on, I don't think it would actually be an expansion. I actually see this case very similar to those in another judge's discreet with us on that note. The reason I think that it is similar to homes is that the traditional remedy for the breach in homes was not money. I believe it's footnote 8 in the home's case discusses the fact that there were specifically prescribed EOSP regulations to source what was to be done in the event of breach. Home's found a money-mandated
... In essence, it was found that at the very end it was found to be money-mandating. Tell me if I'm wrong. As far as I can tell, I have found only one case in the history of this Court or its predecessors that found the contract not to have money-mandating remedy. And that's the Ricks mushroom cases. They're more? Not my knowledge. It's my knowledge. You can... you indicated in your brief that.
.. I guess you cited a Florida statute that provides for a damages remedy for breach of remediation confidentiality provision. At least when I looked online, I found four or five cases recognizing the same. I'm not aware of any case that has ever rejected the proposition that breach of remediation confidentiality provision comes with the ordinary defaults remedy of damages. I'm not aware. And... and you didn't argue law of the case that the June 2012 Dallas District Court decision rejecting the government's motions of dismiss. The breach of contract claim a motion premise that's as far as I could tell from the description on the same argument they're making here, but that's law of the case here. So I believe there are, if I remember correctly, it was pursuant to the ADA and there was no cost of action under the..
. There was a cost of action for breach of remediation. And the District Court there said that may well be, but you could obtain damages under a straight breach of contract. Under common law breach of contract. But you didn't argue that that was law of the case on this issue once we were in the court of federal court. Correct. In back to holds, as I indicated, that was not the classic, that was not the breach. And the important point there being that there's nothing... and actually in homes they indicated that there are other important appeals that actually disagreed with this court. And this court went out of their way to specifically say just because it's..
. this is the typical way that we do it. There's an EU regulation. There's nothing saying we need to go that way. They went out of the way to go ahead and say, they're coming with this presumption. It can be fairly interpreted. It's not a very high bar to meet granted language says it can't be lightly inferred. And we don't believe it's being lightly inferred. But we are at a motion to dismiss level. We're not at a summary judgment level. And we would argue that at least at this level, we haven't met our burden as far as the contract being fairly... that money damage is being fairly consummated from the breach of the mediation
. I think it's kind of a good idea that there's some discussion in at least some of our cases of whether the government officials that entered into the contract had authority to come back. And they're not going to admit government money for its breach. Did these officials hound that authority and are so where did they get it from? I'm not aware whether they had that authority to bind the United States government voluntarily. Obviously they were acting on behalf of the United States government and their actions can result in money damages through bacteria's liability. And I'm not aware of anything explicitly where they're entering into a classical contract in the sense of making a monetary deal with an outside party on behalf of the United States government. You might speak up a little bit more because we're recording the argument. So let's go back. We shall be queried in the arbitration agreement or mediation agreement that there's a requirement for money damages in the event of a breach or that even that the merits of the mediation is centered on a monetary damage toward somebody. There's no per se language in the mediation agreement that that necessitates. There's no liquidated damage clause within the agreement in some in some mediation agreement. How does that sort of sense feel within homes? I think it fits within homes. I think there were two separate. If I remember correctly, within homes you had a specifically monetary reward that was awarded within the agreement for homes
. And then you had separate actions that the government was or was not required to take. I saw this as two separate issues. What the government was, what was the case in homes was honed in on was the specific actions that the government had or had not taken against. And as I mentioned earlier, the EEO already had regulations with which to deal with the breach of the agreement in and of itself that should have been followed. The court went out of its way to say yes, you have those agreements but those rules and those guidelines to follow in with regard to breach. However, we are not required to only follow those and there's nothing precluding a reading of monetary damage in and above those regulations as well. But our law requires that there be a specific money-mandating requirement. Not that you can read one and two or argue one, that there has to be a specific money-mandating requirement. And you're telling us that the mediation agreement did not have such a specific requirement. Well, if I may, from a quote-align from homes, I believe it's quoting the United States to be tested to the other source of law, and I can probably be a little paragraph. The Tug Direct does not create substance of rights. Rather, it is a jurisdictional provision that operates the way of sovereign immunity for claims, cremates on other sources of law. The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it can be fairly interpreted as mandating compensation by the federal government
. I would say the act itself, the breach of that provision of that agreement would be reasonably amenable to a reading of damages for the R.R. Wouldn't it be more reasonable to read that the breach of the confidentiality clause within the mediation agreement would be that any statements that were disclosed that should have been maintained under in the confidential nature that those statements cannot be used as evidence in the proceeding on the merits? I agree that that could be one somewhat to homes, that that could be one way to deal with the breach of it. I think in this case, it becomes problematic. And since this is not litigation, we're not in a lawsuit. There's not even hearing for any administrative judge at this point. So the breach of that agreement seems somewhat topless at this point, would be our argument. It's not really an adequate breach. And even if it were an adequate breach, I think that homes would allow the court to go above and beyond that and to fairly interpret the breach of that agreement as money mandating. We will say the remainder of your time for a bottle. This first. Please support. The court should affirm because in this case, the lower court correctly applied the right standard to the fax alleged and the complaint
. The standard to be applied in this case is the standard that this court is inundated in homes. That is, can the contract or agreement be fairly interpreted as mandating the payment of money in the events of breach? Can I ask, are you aware of any case that has set that the breach of the mediation confidentiality provision cannot support a monetary damage in the case? I know you have cases that say one available remedy is the exclusion of any such disclosure from the litigation proceeding, but those cases are obviously not cases that involve that that say that that's the exclusive remedy. Is there any case that has set a breach of the mediation confidentiality provision is not actionable and damages? I'm not aware of any. If I take it right, I mean, it's your position that if in the mediation, the plaintiff broke down and said my daughter's on drugs and my son is running around with the wrong crowd and et cetera. And I just, I've got to get this money that disclosure of that would not generate a damages remedy because it was in mediation. Yes, and also based on the context, what the lower court said in this case is he looked at the language of this mediation agreement and its context. This is an mediation agreement that parties are required to enter into pursuant to the EEOC regulations and it states that in the second paragraph of the agreement, the EEOC regulations would be 29 CFR 1614.102G2. And then these two estimates, I'm sorry, I'm sorry, I'm sorry, it's also in the record, but 29 CFR 1614.102B2, that regulation makes clear that agencies are required to adopt mediation procedures for EEOC complaints. This is an EEOC regulation. So the agencies must have a mediation procedure in place. And in paragraph two of the agreement itself, it says while consenting
. What are you reading from? Yes, I'm reading from the appendix page 1, 2, 7. This is the mediation agreement itself, paragraph two. When consenting, aggrieved person, complainants and management officials are required to appear at a scheduled mediation conference and engage in good faith attempts to resolve the matter, parties may withdraw from the mediation session and will not be forced into an agreement. And I'm pointing to the language required and that is consistent with the regulation. Presumably, EEOC procedures, parties are required to go through a mediation. And that's what happened in this case. There was a formal... I have to explain the bearing of all this stuff that you're just saying about required on whether the proclaiming of the daughters and sons problems from the government. The rooftop would not generate a breach of contract. What I'm pointing out here is that the lower court's decision is based on the context and purpose of the mediation agreement itself. Here, you are required to participate in the mediation. You sign was essentially a one page within a signature page attached to it. You sign a very, very simple document. You sign it. There is another one of your answers to Judge Toronto's question that the absence of a negative preclusion of damages for money damages for mediation breach isn't necessarily a positive. And that sovereign immunity would argue against creating or expanding the jurisdiction of the claims committee. We certainly... yes, absolutely. Here, the government is acting as a sovereign. It is required to enter into this agreement. It enters into the.
. You sign was essentially a one page within a signature page attached to it. You sign a very, very simple document. You sign it. There is another one of your answers to Judge Toronto's question that the absence of a negative preclusion of damages for money damages for mediation breach isn't necessarily a positive. And that sovereign immunity would argue against creating or expanding the jurisdiction of the claims committee. We certainly... yes, absolutely. Here, the government is acting as a sovereign. It is required to enter into this agreement. It enters into the... You mean potentially sued for the disemployment discrimination as a business? That's also correct. But here, this is not a settlement agreement. All this is a procedural agreement that parties are required to sign. Let me just explain what's bothering me. In my briefs of print court cases, there are a number of statements that say the default rule on contracts is that there's a damages remedy. Winstarts says that others. And virtually all of those contracts will say nothing about money-mandating. Maybe liquidated damages will be in them. But the general rule is the contract doesn't specify the damages remedy. The damages remedy comes with the contract. We have as far as I can tell, only one case in all of our history that has never said, here's a particular kind of contract that doesn't. And that's Rick's mushroom
.. You mean potentially sued for the disemployment discrimination as a business? That's also correct. But here, this is not a settlement agreement. All this is a procedural agreement that parties are required to sign. Let me just explain what's bothering me. In my briefs of print court cases, there are a number of statements that say the default rule on contracts is that there's a damages remedy. Winstarts says that others. And virtually all of those contracts will say nothing about money-mandating. Maybe liquidated damages will be in them. But the general rule is the contract doesn't specify the damages remedy. The damages remedy comes with the contract. We have as far as I can tell, only one case in all of our history that has never said, here's a particular kind of contract that doesn't. And that's Rick's mushroom. Maybe you can tell me if there are more. And I'm trying to understand what the theory is for designating this particular contract as another kind of contract that comes within an exception to the otherwise very general rule that contracts come. With implicit damages remedy. That's not a problem. The presumption does not apply in the discrimination context. That is the holding in the home's case. And it did not apply in homes. So the presumption cannot be used to satisfy the plaintiff's burden in this type of a case. And the lower court here recognized that. And so this case is not found or governed by a presumption of money damages. The test is, can the agreement be fairly interpreted as managing the repayment of money in the event of breach? Here we're saying this and in homes. It was very, very different. This court looked to particular provisions of that settlement agreement
. Maybe you can tell me if there are more. And I'm trying to understand what the theory is for designating this particular contract as another kind of contract that comes within an exception to the otherwise very general rule that contracts come. With implicit damages remedy. That's not a problem. The presumption does not apply in the discrimination context. That is the holding in the home's case. And it did not apply in homes. So the presumption cannot be used to satisfy the plaintiff's burden in this type of a case. And the lower court here recognized that. And so this case is not found or governed by a presumption of money damages. The test is, can the agreement be fairly interpreted as managing the repayment of money in the event of breach? Here we're saying this and in homes. It was very, very different. This court looked to particular provisions of that settlement agreement. And said that based on those particular provisions, that settlement agreement could be a fairly construed as mandating the payment of money. That is, as the lower court pointed out here, not the case here because this agreement cannot be fairly interpreted as mandating the payment of money. It's a very simple procedural agreement. It doesn't settle anything. And you're answering my question about the hypothetical. If he had come in and said, I just, I got to get this money because my daughter, this and my son, this and you had gone out to the newspaper and said, here's this nasty stuff about embarrassing stuff about the daughter and the son. No breach of contract claim. No jurisdiction. The jurisdiction of contract claim, right? No, no. I think the only compensable breach of contract claim. Yes. Yes. Would there be some other remedy? The remedy is stated in the agreement itself that no
. And said that based on those particular provisions, that settlement agreement could be a fairly construed as mandating the payment of money. That is, as the lower court pointed out here, not the case here because this agreement cannot be fairly interpreted as mandating the payment of money. It's a very simple procedural agreement. It doesn't settle anything. And you're answering my question about the hypothetical. If he had come in and said, I just, I got to get this money because my daughter, this and my son, this and you had gone out to the newspaper and said, here's this nasty stuff about embarrassing stuff about the daughter and the son. No breach of contract claim. No jurisdiction. The jurisdiction of contract claim, right? No, no. I think the only compensable breach of contract claim. Yes. Yes. Would there be some other remedy? The remedy is stated in the agreement itself that no... That's not a remedy for the daughter and the son or even for him for maybe the family breaking up and so on like that. Are you saying that there's no remedy at all? No, the remedy... Maybe there'd be a tort remedy. Maybe there'd be something else. Well, let me just say first that there's definitely not a money damage as contract remedy. The remedy pursuant to the agreement itself in paragraph 9 and also paragraph 7 is that you cannot use whatever revealed in the mediation. In any subsequent proceeding, whether it be administrative or illegal. So for example, if you went from the mediation, the complaint has an option. They can go to administrative hearing where they can go to a lawsuit in district court
... That's not a remedy for the daughter and the son or even for him for maybe the family breaking up and so on like that. Are you saying that there's no remedy at all? No, the remedy... Maybe there'd be a tort remedy. Maybe there'd be something else. Well, let me just say first that there's definitely not a money damage as contract remedy. The remedy pursuant to the agreement itself in paragraph 9 and also paragraph 7 is that you cannot use whatever revealed in the mediation. In any subsequent proceeding, whether it be administrative or illegal. So for example, if you went from the mediation, the complaint has an option. They can go to administrative hearing where they can go to a lawsuit in district court. And in either proceeding, whether it's administrative or a lawsuit, whatever is revealed at the mediation, the fact that it was revealed at mediation cannot be used in the later proceeding. That is the remedy. It says that is a remedy. It doesn't say that is the only remedy. I understand. It does not explicitly have that language of ruling out. I don't remember what I asked you. I asked your counterpart. Are you aware of any case, anywhere in the country that has said a damage as remedy is not available for the case? For the breach of a mediation confidentiality provision? For a mediation agreement, no. But I am aware of other cases, other contract cases, where the court has said that money damages are not the appropriate remedy. And for example, there is the unpublished decision by this court, Sylvia versus the United States. Sylvia. Sylvia
. And in either proceeding, whether it's administrative or a lawsuit, whatever is revealed at the mediation, the fact that it was revealed at mediation cannot be used in the later proceeding. That is the remedy. It says that is a remedy. It doesn't say that is the only remedy. I understand. It does not explicitly have that language of ruling out. I don't remember what I asked you. I asked your counterpart. Are you aware of any case, anywhere in the country that has said a damage as remedy is not available for the case? For the breach of a mediation confidentiality provision? For a mediation agreement, no. But I am aware of other cases, other contract cases, where the court has said that money damages are not the appropriate remedy. And for example, there is the unpublished decision by this court, Sylvia versus the United States. Sylvia. Sylvia. Yes, yes. It's 2002, West Law 312604448 from 2002. There was an agreement there that the government was alleged to have breached and no money damages. It could not be interpreted as leading to money damages, so therefore there was no jurisdiction. And then of course, there were also the cases in the criminal area, which I am sure the court is well aware of the fondest case and the other criminal cases. And in those contexts, this case goes to the jurisdiction of the Court of Federal claims, which is its own subject matter. Certainly. And here, this really is simply a procedural agreement, which contains the specifies what the remedy is. You can't use the information in later proceedings. And you know, what we're pointing out as the lower court pointed out that as with all forms of mediation, this is driven by a hope that a party's will sit down. And we'll talk and maybe some settlement agreement will be reached, but it is not a settlement agreement. The parties don't give up anything with regard to the complaint that they filed at the ESEF that stood there at the beginning and it's fair at the end. So they haven't settled the initial complaint
. Yes, yes. It's 2002, West Law 312604448 from 2002. There was an agreement there that the government was alleged to have breached and no money damages. It could not be interpreted as leading to money damages, so therefore there was no jurisdiction. And then of course, there were also the cases in the criminal area, which I am sure the court is well aware of the fondest case and the other criminal cases. And in those contexts, this case goes to the jurisdiction of the Court of Federal claims, which is its own subject matter. Certainly. And here, this really is simply a procedural agreement, which contains the specifies what the remedy is. You can't use the information in later proceedings. And you know, what we're pointing out as the lower court pointed out that as with all forms of mediation, this is driven by a hope that a party's will sit down. And we'll talk and maybe some settlement agreement will be reached, but it is not a settlement agreement. The parties don't give up anything with regard to the complaint that they filed at the ESEF that stood there at the beginning and it's fair at the end. So they haven't settled the initial complaint. And here, if there, I mean the purpose of the mediation is hopefully to reach a settlement in the dispute. Certainly. It says that right up front in the agreement that a party signed this hoping to arrive at a settlement agreement, but at the same time nobody is forced to agree. You must participate because of the regulation, but after participating very briefly five minutes, you can walk out the door. And here also, if parties were, if this agreement stated up front that if you say something later on, reveal something that was said at the mediation and you could have a whole nother lawsuit, then parties are going to be very much discouraged from sitting down to mediation with that kind of mindset. If they think that by simply by saying something later that they could be a whole nother separate lawsuit, then parties are not going to sit down for this kind of session. So, that was a 1500 issue, which isn't being argued here. It wasn't decided on the basis of 1500. Not from 1500. Correct. Can I ask you a question that I asked your counter-tart? What is the source of the authority? Is it the EOC regulation that allowed the two State Department officials to enter into to sign this agreement? Yes, they're required to, and how would you, if it were relevant to think about the question, did those officials by signing this agreement have authority to commit the funds of the United States for any breach? How would you go about answering that question? That is a question that's going to be have to be answered on the merits. And I don't know the answer whether these particular individuals have the authority to obligate the government in money damages. We think that is a contention that would go to the merits of the case
. And here, if there, I mean the purpose of the mediation is hopefully to reach a settlement in the dispute. Certainly. It says that right up front in the agreement that a party signed this hoping to arrive at a settlement agreement, but at the same time nobody is forced to agree. You must participate because of the regulation, but after participating very briefly five minutes, you can walk out the door. And here also, if parties were, if this agreement stated up front that if you say something later on, reveal something that was said at the mediation and you could have a whole nother lawsuit, then parties are going to be very much discouraged from sitting down to mediation with that kind of mindset. If they think that by simply by saying something later that they could be a whole nother separate lawsuit, then parties are not going to sit down for this kind of session. So, that was a 1500 issue, which isn't being argued here. It wasn't decided on the basis of 1500. Not from 1500. Correct. Can I ask you a question that I asked your counter-tart? What is the source of the authority? Is it the EOC regulation that allowed the two State Department officials to enter into to sign this agreement? Yes, they're required to, and how would you, if it were relevant to think about the question, did those officials by signing this agreement have authority to commit the funds of the United States for any breach? How would you go about answering that question? That is a question that's going to be have to be answered on the merits. And I don't know the answer whether these particular individuals have the authority to obligate the government in money damages. We think that is a contention that would go to the merits of the case. Thank you, Mrs. Kemp. I'm sorry, the fire has passed on the bottle. Council, I want to ask you if you could please speak up for clarity. It has been difficult during your arguments. Yes, we'll do. Just a few points. A, I obviously take exception with the characterization as entering into the agreement as being a requirement. I think there was a valid contract and to characterize it as a requirement for him to sign, there were two parties and things weren't given up. I think she's saying as part of the EEOC proceeding that it's required to undergo mediation. Correct. But there's a voluntary entering into entering into an agreement. It would be my point
. And on the other last point would be with regard to the exclusive remedy being the exclusion of evidence and almost to build on the judgment to this point. I have trouble dealing with that matter. I believe that as far as fairly contemplating, there were cases cited in Judge Damage criticized us for that with regard to trade secrets. So if we start with breach of mediation agreement, the way they go will end up being in very, very short. I think that with breach of mediation agreement on its own, money damage can fairly be contemplated. However, I think it's a matter of fact with regard to what exactly those damages would be rather than, like I said earlier, where I did your stickional issue. I think that the court clearly does have jurisdiction. I think what monetary damage would be the result of it is ultimately would be a question of fact, not a question of law or jurisdiction