[00:00:00] Speaker 04:
Next argued case is number 20, 1705, Fields Against the United States.

[00:00:05] Speaker 04:
Mr. Jarrett.

[00:00:08] Speaker 02:
Good morning and may it please the court.

[00:00:10] Speaker 02:
I'd like to start with the emotional distress issue.

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Obviously, in breach of contract cases, emotional distress, the general rule is that emotional distress is not available.

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However, the restatement second of contracts at section 353 states that recovery for emotional disturbance will be excluded

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unless the breach also caused bodily harm or the contract of the breaches of such a kind that serious emotional disturbance was a particularly likely result.

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In the comments to the restatement, there's a dichotomy in cases.

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On the one hand, there are types of cases where an individual or party to a contract is particularly vulnerable to emotional distress.

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And if a breach of contract happens, they experience emotional distress.

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And in those circumstances, emotional distress is not recoverable through a breach of contract theory.

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The other types of cases are cases in which, regardless of the individual's proclivities, the circumstance is such that it would involve emotional distress, such as a funeral, contracts regarding funerals, contracts involving innkeepers and guests, I assume, back from days in which travel was much rarer and harder.

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is a circumstance in which a serious emotional disturbance is particularly likely to result.

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And it's different from the run of the mill settlement agreement even in an EEO case.

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And so there's three reasons for that.

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One is unlike just the normal EEO case, this claim resolved

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a claim for emotional distress damages that resulted from the agency having provided negative information or allegations that the agency had provided negative information to prospective employers.

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And so in that circumstance, the agency was aware that the complainant, Ms.

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Fields, had experienced emotional distress due to the agency

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failing to provide, excuse me, by providing negative information to prospective employers.

[00:02:30] Speaker 04:
Mr. Jarrett, was there any evidence of the monetary amount of emotional distress?

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There is, may I ask, do you mean at the stage where she first resolved her case or at this, in the court of federal claim?

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Anywhere is there along the way just to understand what it is that you're asking for?

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There's not a particular figure.

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The emotional distress, the maximum that's allowed under the EEO laws is $300,000.

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I don't think that there was a particular figure that had been set forth and would have been determined by the judge at trial.

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What about in this case?

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Did you submit in opposition to summary judgment a quantification of the emotional distress damages?

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No, we did not quantify the total.

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Is that a problem or are you distinguishing essentially the amount of damages question

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from the existence of cognizable damage question, because there's certainly, I guess my impression is that sometimes those things are distinguished and sometimes those are not.

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But in the absence of a presentation of a quantification, did the Court of Federal Claims rely on that absence as a separate and independent ground for rejecting the emotional distress damages claim here?

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I do not believe so.

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I think that the Court of Federal Claims held that you can't, in these circumstances, you just can't get emotional distress for a breach of contract.

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And so I think that this case, the other distinguishing factors are that the, in resolving the case with the agency at the mediation, Ms.

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Field just declared that she suffered an emotional breakdown.

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It was obvious to the agency.

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She claimed that she had suffered PTSD

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in her case and then at the mediation.

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This is not a case in which it's not very similar to a commercial contract in that almost all the relief that Ms.

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Fields bargained for was to clear her record and to ensure that she would be able to find future employment and that they would investigate what had happened when they

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when she believed an individual provided negative information to a prospective employer.

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And so in that respect, almost all, this contract is all about ensuring that Ms.

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Fields would be able to secure future employment and the agency and giving up her claims, she gave up significant emotional stress damages

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the possibility of significant emotional distress damages for this consideration.

[00:05:44] Speaker 03:
She experienced emotional distress at the mediation and... But aren't the two different time periods of emotional distress significantly different?

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Before the settlement, it was emotional distress from what she alleged was discriminatory treatment.

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after the settlement agreement, the only possible emotional distress is emotional distress from failure, from, I guess, learning of a failure to comply with the clean up your records commitment that the agency made in the agreement.

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Those are two pretty different things, aren't they?

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I think that they're similar in that the settlement agreement

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at the time of the settlement included emotional distress for the government's failure to or for the government's provision of negative information about her to prospective employers.

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And so I think that after the fact that they haven't taken these steps, they haven't investigated that, they haven't cleaned her record, and now she can't find prospective employment, I think that that is the same.

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And so I think it's normal.

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Does the record tell us whether

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once it was, it became clear that the agency had not complied with its obligation to clean up the personnel record, whether the agency then in fact did so?

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The record says that as of 2019, June 2019, the agency stipulated that it had not cleaned the record.

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So that's after the complainant had

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brought this case and, you know, that was near the conclusion of the initial discovery period.

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It was extended to allow discovery on damages.

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And so the government still had not done so after being aware of her claims for a long period of time and her concern.

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But you're not saying that they're still in violation, are you, that the record was never cleaned?

[00:08:04] Speaker 02:
I don't know the answer to that question.

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I know, all I know is what, that as of June 2019 that it had not been.

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And then, so in conclusion on the emotional distress issue, I do think that this is the type of case.

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I understand that settlement agreements should not, a breach of settlement agreement should not permit emotional distress damages in all cases.

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I think this is the case where the settlement is all about cleaning up the record where

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records that part of the allegations are that they provided negative information and that caused emotional distress and the fact that she experienced emotional distress in front of the agency at the mediation makes this the case where emotional distress is a particularly likely result as opposed to the normal EEO settlement.

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And then with respect to the identifiable opportunities and lost wages, whether there's sufficient evidence of

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her losing identifiable opportunities.

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I think we just point to the Red Grave case and state that she did identify some specific places that she spoke with.

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However, because the record was not clean, she was concerned that she would be unable to, that they would find out and she'd never be able to get a job there again.

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And unless there's further questions, I would relinquish the rest of my time.

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Okay, any more questions for Mr. Jarrett?

[00:09:30] Speaker 03:
Okay, can I just ask one question?

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So do I understand correctly that your client got a copy of the personnel file in, what, April of 2016, and that's the point at which she learned that the corrective action, that the agency had not taken the corrective action, is that right?

[00:09:55] Speaker 03:
Yes, that's right.

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And then did any of the potential employment opportunities

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that she has pointed to here post-date the April 2016 acquisition of knowledge of the agency's non-compliance with the cleanup obligation.

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Excuse me one second.

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As far as the, what I know is that she reviewed job boards and then felt unable to comply throughout the process, or excuse me, to apply throughout the process.

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But the human resource, the items we identified at the VA in Minneapolis occurred prior to her learning of the breach.

[00:11:00] Speaker 04:
Okay.

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Do I remember correctly that there's,

[00:11:03] Speaker 04:
a statutory or regulatory obligation to point out within 30 days of learning of noncompliance that there's a problem and requesting correction?

[00:11:18] Speaker 02:
I believe it's 35 days.

[00:11:21] Speaker 04:
Okay.

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And so it's, but the difference here is that there's, I see a lot of times.

[00:11:30] Speaker 04:
Please respond.

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In this case, they entered a separate contract that said that she, the contract provides that in this circumstance, she, in the event of a breach that was not caused by the agency, then she was supposed to follow that process.

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And so we brought the contract, we brought the breach of contract claim here.

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We also, we had previously gone, tried to follow that process.

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But the agency, the OFO, which hears those appeals, denied it.

[00:12:11] Speaker 04:
Okay.

[00:12:12] Speaker 04:
Any more questions for Mr. Jarrett at the moment?

[00:12:16] Speaker 04:
Haven, we'll hear from Ms.

[00:12:18] Speaker 04:
Akers and we'll save you rebuttal time, Mr. Jarrett.

[00:12:23] Speaker 01:
Thank you, Your Honor.

[00:12:24] Speaker 01:
May it please the court?

[00:12:26] Speaker 01:
The court should affirm the trial court's grant of summary judgment to the United States

[00:12:30] Speaker 01:
First, as it relates to Ms.

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Fields' lost profits claim, Ms.

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Fields has not demonstrated that the agency caused her to incur damages for a breach of contract.

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There is no causal nexus between the breach of contract and her failure to obtain a job.

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She argues at most that she could not apply for jobs or that she felt in her own subjective opinion unable to apply for jobs.

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But that is, first, contradicted by the record.

[00:13:01] Speaker 01:
She did, in fact, apply for many jobs, and that was her primary argument at summary judgment before the trial court.

[00:13:07] Speaker 04:
And second, even if she could not apply... Well, on that point, wasn't there evidence of a job offer that had been made and then withdrawn?

[00:13:18] Speaker 01:
Correct, Your Honor.

[00:13:19] Speaker 01:
And that was with regard to the government contractor proxy personnel.

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But if Your Honor would note, that has no relation to the agency's breach of contract because that occurred before the EEO complaint was filed and thus before the settlement agreement was entered into.

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And Ms.

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Fields acknowledges that on page 6 of her opening brief.

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That entire circumstance preceded the settlement agreement, so that circumstance

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certainly is not related to the agency's breach or any causal link between her failure to obtain employment.

[00:13:59] Speaker 03:
Your understanding of the facts here is going to be necessary to clarify this.

[00:14:05] Speaker 03:
Were there any instances that she has pointed to in which after learning in April of 2016 of the agency's breach,

[00:14:17] Speaker 03:
Um, she felt compelled to tell prospective employers or in some way self restrained because now three years after the settlement agreement, she learned that it had been breached.

[00:14:40] Speaker 01:
To clarify, Ryan, you're asking whether there were any instances in which Ms.

[00:14:44] Speaker 01:
Field told potential employers about the situation with the agency?

[00:14:48] Speaker 03:
Yeah.

[00:14:50] Speaker 01:
Yes.

[00:14:50] Speaker 01:
So, if, yes, that did happen one time.

[00:14:53] Speaker 01:
In our motion for summary judgment... Do you remember when?

[00:14:59] Speaker 01:
I don't remember when, Your Honor, although it is in the appendix, and I can look it up.

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perhaps during Mr. Jarrett's rebuttal time.

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I know that it was on page 170 of the Motion for Summary Judgment appendix.

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And so I'll find that for you.

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But was it before or after the April 2016 acquisition of knowledge of the government's breach?

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I'm not sure, Your Honor.

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But the only time any prospective employer knew of her situation with the agency was because Ms.

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Fields had voluntarily disclosed it.

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So Ms.

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Fields' argument on appeal here is that she was afraid that the agency would disclose particular information to potential employers.

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But there's no evidence whatsoever that the agency did that.

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really no reason that the agency would have done that.

[00:15:54] Speaker 00:
The only evidence is that... This is Judge Moore.

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What does the record show about the state of her knowledge of the agency breach?

[00:16:00] Speaker 00:
When did she become aware that the agency didn't fulfill its obligation under the settlement agreement?

[00:16:06] Speaker 01:
Your Honor, the record... I don't believe there's actually anything particular in the record, although there was a reference to an April 2016 inquiry that she made to the agency requesting her file.

[00:16:21] Speaker 01:
And when she requested her file in 2013, we believe that may have been when she discovered that the one... 2016.

[00:16:31] Speaker 01:
Excuse me.

[00:16:32] Speaker 01:
Yes.

[00:16:32] Speaker 01:
Thank you, Your Honor.

[00:16:33] Speaker 01:
2016.

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That's the only date that Ms.

[00:16:38] Speaker 01:
Fields has put forth.

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We have no reason to doubt that date, although I would note that two of the provisions of the settlement agreement required that the agency appoint an investigation into the allegations

[00:16:50] Speaker 01:
that Miss Fields made and informed her of that investigation.

[00:16:55] Speaker 01:
So because Miss Fields was not informed of that investigation, presumably she would have known that she wasn't informed far before she requested her official record from the agency.

[00:17:09] Speaker 04:
Well, now she says that investigation wasn't conducted.

[00:17:13] Speaker 04:
Are you saying that it was?

[00:17:16] Speaker 01:
Your Honor, it's unclear whether to what extent the investigation was complete because the agency personnel who was responsible for that investigation retired and we were unable to really assess the extent of which the investigation was either finished or not.

[00:17:34] Speaker 04:
Is there a record that it was begun?

[00:17:38] Speaker 01:
There's no record, Your Honor.

[00:17:39] Speaker 01:
I know from my personal knowledge of handling this case below and speaking with agency personnel that it was begun.

[00:17:46] Speaker 01:
But again, we couldn't find any documents to support that.

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And that's exactly why we stipulated that the agency breached the settlement agreement.

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We're not disputing that.

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This case is just about whether that breach actually caused Miss Field to suffer damages.

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And for this court, what's important is that Ms.

[00:18:05] Speaker 01:
Fields doesn't establish a nexus between the agency's brief to the settlement agreement and any damages that she actually suffered.

[00:18:14] Speaker 03:
And importantly... And then, so any... I mean, did... I remember the Court of Federal Claims opinion as resting its...

[00:18:28] Speaker 03:
rejection of the claim for lost job opportunities on that failure of proof of causation.

[00:18:34] Speaker 03:
Did the Court of Federal Claims also invoke failure of causation as to the emotional distress damages?

[00:18:47] Speaker 01:
Your Honor, the Court of Federal Claims' analysis as it relates to emotional distress was limited to

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the restatement and this court in Bohack's opinion that limits or precludes damages for emotional distress.

[00:19:01] Speaker 01:
And so because the court found at the forefront that those damages were not awardable in this case, the court didn't go on to address whether Miss Fields had proven those damages with reasonable certainty as she'd be required to do.

[00:19:16] Speaker 01:
And it's important to note on the emotional distress

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claim, Your Honor.

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This is never a claim that was raised before the trial court in the complaint.

[00:19:25] Speaker 01:
The first time that the emotional distress allegation arose was in opposition to our motion for summary judgment.

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It was an attempt to establish material disputed facts.

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We didn't even conduct any discovery.

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There's no evidence on the record at all regarding emotional distress damages

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And in fact, I would point, Your Honors, to Appendix 381 and 382, which is Mrs. Field's interrogatory responses.

[00:19:53] Speaker 01:
And we had asked her whether she was seeking damages for emotional distress based on the breach of contract, because in her initial disclosure, she had included a reference to emotional distress, and we were somewhat confused by that, given the complaint.

[00:20:08] Speaker 01:
And in response to our interrogatory, Ms.

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Field stated she's not claiming expenses and costs for emotional distress related to the breach of contract.

[00:20:18] Speaker 04:
So her argument... Is expenses and costs, is that what you mean by you're saying that that would be the extent of damages or what?

[00:20:28] Speaker 01:
Correct, Your Honor.

[00:20:30] Speaker 01:
That's the only damages that we are aware that would be permissible if she were to fit within one of the limited

[00:20:38] Speaker 01:
exceptions that damages are generally not recoverable in a breach of contract case for emotional distress.

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And so not only has she, Ms.

[00:20:49] Speaker 01:
Fields, never alleged this in her complaint.

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This wasn't part of the lawsuit below.

[00:20:53] Speaker 01:
On appeal, Ms.

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Fields argued here today that there's no evidence of damages in the record.

[00:21:00] Speaker 01:
So certainly she has not met her burden to overcome summary judgment.

[00:21:04] Speaker 01:
Not only has she not established the causation element

[00:21:08] Speaker 01:
But she broadly asserts that she's entitled to half a million dollars for emotional distress damages.

[00:21:14] Speaker 01:
We have no medical bills.

[00:21:16] Speaker 03:
We have no... In your summary judgment motion or, I guess, in your reply to her opposition, did you make an argument about failure of proof of

[00:21:34] Speaker 03:
emotional distress damages or was your only argument that they're simply not cognizable?

[00:21:41] Speaker 01:
Your Honor, in our reply motion for summary judgment, we did make that argument that there was not proof or she did not meet her burden to establish damages with reasonable certainty.

[00:21:53] Speaker 01:
The trial court didn't latch on to that or adopt it.

[00:21:56] Speaker 01:
Like I said, the trial court limited its analysis to whether the damages were recoverable at all.

[00:22:01] Speaker 01:
So it never got to the merits.

[00:22:03] Speaker 01:
But we certainly made that argument.

[00:22:05] Speaker 01:
And it's certainly before this court, as Ms.

[00:22:08] Speaker 01:
Fields has acknowledged here today, that she did not, in fact, put forth any evidence of damages.

[00:22:14] Speaker 01:
And this court's precedent is very clear that in breach of contract cases, the plaintiff or the person seeking the damages bears the burden to prove with reasonable certainty the damages and speculation damages or damages that are speculative

[00:22:30] Speaker 01:
are not awardable and that's all we have here.

[00:22:35] Speaker 03:
Can you say a word about, I guess, the legal question why this isn't the sort of contract for which emotional distress damages of any sort, whether it's limited to expenses and costs that flow from emotional distress or otherwise, why none of that should be cognizable in this kind of contract case?

[00:23:01] Speaker 01:
Sure, Your Honor.

[00:23:02] Speaker 01:
So the exception that permits damages for emotional distress, as we've talked about today, is recognized under the risk statement.

[00:23:09] Speaker 01:
And this court adopted that view in BOHAC.

[00:23:12] Speaker 01:
And the comments to the risk statement explain the very limited instances in which a type of contract is such that it's particularly likely to cause serious emotional disturbance.

[00:23:26] Speaker 01:
And there are two types, one involving the innkeepers and passengers and guests,

[00:23:31] Speaker 01:
and the other involving, or excuse me, there are three types.

[00:23:34] Speaker 01:
The second involving the disposal of dead bodies and the third involving the relay of information regarding death.

[00:23:40] Speaker 01:
This case involves none of those facts.

[00:23:42] Speaker 01:
There's no other exception identified in the restatement or in any case in any circuit that I've ever found that would reach a sort of run of the mill breach of contract case, even if the plaintiff had suffered emotional distress at the outset.

[00:23:57] Speaker 01:
I found no cases, plaintiff has really put forth no cases

[00:24:01] Speaker 01:
that demonstrate damages would be awardable here.

[00:24:04] Speaker 01:
And also important to that analysis, Your Honor, in BOHAC, this court explains that in cases not involving death, such as for mental suffering, to fall within the exception to the restatement, Miss Fields would have had to show there was wanton and willful misconduct on behalf of the breaching party.

[00:24:26] Speaker 01:
And so because this case doesn't involve death,

[00:24:29] Speaker 01:
even if there was an exception that she could fall within, she would have to show that the breach was based on that wanton and willful misconduct.

[00:24:37] Speaker 01:
And Miss Fields doesn't even allege that.

[00:24:39] Speaker 01:
There's no evidence in the record.

[00:24:41] Speaker 01:
As the trial court found, government officials are presumed to act in good faith, absent, you know, meeting a burden otherwise, and Miss Fields hasn't even alleged as much.

[00:24:51] Speaker 01:
So really, there's just no bucket of

[00:24:55] Speaker 01:
exception to which Ms.

[00:24:56] Speaker 01:
Field's claim falls in.

[00:24:58] Speaker 01:
There's no similar case or authority that would provide for damages for emotional distress.

[00:25:04] Speaker 01:
And again, even if she were able to recover damages for emotional distress, she still hasn't proven the causation element and she still hasn't proven her damages with reasonable certainty, which would preclude her from overcoming summary judgment.

[00:25:23] Speaker 01:
And so, Your Honor, we ask that the court affirm the trial court's decision to grant summary judgment to the United States.

[00:25:31] Speaker 01:
Thank you.

[00:25:31] Speaker 01:
Okay.

[00:25:32] Speaker 01:
Any more questions for Ms.

[00:25:33] Speaker 01:
Akers?

[00:25:35] Speaker 04:
Okay.

[00:25:36] Speaker 04:
And Mr. Jarrett, you have rebuttal.

[00:25:39] Speaker 02:
Thank you.

[00:25:40] Speaker 02:
I just wanted to respond to the point that in discovery or in the record that Ms.

[00:25:48] Speaker 02:
Fields disclaimed emotional distress.

[00:25:53] Speaker 02:
The appendix 429 through 431, there was an interrogatory that asked to describe the facts, events, and circumstances supporting the emotional distress described in Plain's initial disclosures.

[00:26:06] Speaker 02:
She went through the, her diagnoses, provided information about her medical providers and explained how the agency's conduct affected those, some of which were pre-existing conditions.

[00:26:22] Speaker 02:
I believe is referring to is interrogatory nine where they asked to describe all expenses and costs Ms.

[00:26:30] Speaker 02:
Fields incurred as a result of her emotional distress.

[00:26:33] Speaker 02:
And because Ms.

[00:26:34] Speaker 02:
Fields is a veteran, it was my understanding that she was able to receive free care at the VA so those costs and expenses didn't exist.

[00:26:44] Speaker 02:
However, there's several pages worth of explanation of the emotional distress.

[00:26:49] Speaker 03:
There was, I think, a legal assertion that was made that in the area where emotional distress damages are permitted in contract cases, they are limited to expenses and costs.

[00:27:08] Speaker 03:
What's your understanding of that?

[00:27:18] Speaker 02:
did not see that argument.

[00:27:19] Speaker 02:
Again, I think that obviously there's not a lot of authority out in the world on this issue.

[00:27:28] Speaker 02:
It's limited.

[00:27:30] Speaker 02:
And I think that just sort of following the restatement that again if you go back to the dichotomy of the types of contracts that this is the sort of circumstance where emotional distress by its nature is sort of not

[00:27:44] Speaker 03:
No, the immediate harm is obviously not out of pocket, but I would think there can be out-of-pocket follow-on expenses.

[00:27:57] Speaker 03:
I need mental health treatment and have to pay for it or something like that.

[00:28:03] Speaker 03:
In the cases like the innkeeper cases or the death-related cases or something like that,

[00:28:13] Speaker 03:
What is your understanding of what kinds of damages are authorized to be awarded?

[00:28:23] Speaker 02:
In the Dobbins case that we cited that was overturned on a different grant, the finding not a breach, there was a lengthy discussion by the Court of Federal Claims on sort of how do you quantify emotional distress and whether the verdict which awarded it, and there,

[00:28:42] Speaker 02:
They sort of, you know, it can't be specified.

[00:28:47] Speaker 02:
Emotional distress wasn't just out of pocket expenses.

[00:28:50] Speaker 02:
It was sort of a measure of emotional harm and the court went through sort of the difficulties, but the jury had discretion, I guess, to find, to set a number.

[00:29:01] Speaker 02:
And, you know, it's hard to establish it.

[00:29:03] Speaker 02:
So I think that under that case, that obviously isn't binding on you, but I think that it sort of,

[00:29:12] Speaker 02:
indicates that emotional distress, not just out of pocket expenses, are available.

[00:29:19] Speaker 02:
And if there aren't any further questions, we just ask that the court reverse and remand.

[00:29:26] Speaker 04:
Any more questions for Mr. Jarrett?

[00:29:30] Speaker 04:
OK.

[00:29:31] Speaker 04:
Then the case is taken under submission.

[00:29:33] Speaker 04:
That concludes this panel's argued cases for this morning.

[00:29:40] Speaker 00:
The honorable court is adjourned until this afternoon at 2 p.m.