Davis v. United States , 642 F. App'x 982 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEXTER L. DAVIS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1237
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00162-LKG, Judge Lydia Kay
Griggsby.
______________________
Decided: March 14, 2016
______________________
DEXTER L. DAVIS, Sondheimer, LA, pro se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM; JUAN CARLOS ALARCON, Office of General
Counsel, United States Department of Agriculture, Wash-
ington, DC.
______________________
2 DAVIS v. US
Before PROST, Chief Judge, LOURIE and WALLACH, Circuit
Judges.
PER CURIAM.
Dexter L. Davis appeals from a decision of the United
States Court of Federal Claims dismissing his claims for
lack of jurisdiction under 28 U.S.C. § 1500 and for failure
to state a claim under Rules 12(b)(1) and 12(b)(6) of the
Rules of the United States Court of Federal Claims
(“RCFC”). Because the Court of Federal Claims correctly
found that jurisdiction is improper, we affirm.
BACKGROUND
Mr. Davis is a farmer residing in Louisiana. On De-
cember 2, 2010, Mr. Davis submitted an application for a
subordinated loan from the Farm Service Agency (“FSA”).
On February 24, 2011, the FSA formally denied his re-
quest.
On March 2, 2011, Mr. Davis appealed the FSA’s de-
nial to the United States Department of Agriculture
(“USDA”) Appeals Division, alleging that he had been
racially discriminated against and that the FSA’s denial
failed to meet the timing requirements for loan applica-
tions under 7 C.F.R. § 764.53(c). The Division dismissed
his appeal.
On November 20, 2014, Mr. Davis filed a complaint in
the United States District Court for the Western District
of Louisiana, asserting claims under 42 U.S.C. §§ 1983,
1985, 1986, 1988, 42 U.S.C. § 2000(f), the Administrative
Procedure Act, and the 14th Amendment, as well as a
claim for “fraud.” As defendants, the complaint named
United States Secretary of Agriculture Tom Vilsack in his
official capacity and four other government officials in
their individual capacities: Chris Beyerhelm, Chief Depu-
ty Administrator of the USDA; Willie Cooper, State
Executive Director of the FSA; Brad Smith, FSA Farm
DAVIS v. US 3
Loan Chief; and Steve Dooley, a local agent at the FSA.
On August 21, 2015, the district court dismissed Mr.
Davis’s claims with prejudice.
In the interim, on February 23, 2015, Mr. Davis initi-
ated the instant case, filing a complaint in the Court of
Federal Claims. The complaint names the United States
as defendant and asserts claims for breach of contract,
breach of implied covenant of good faith and fair dealing,
unjust enrichment, takings, trademark infringement,
breach of fiduciary duty, and instrumentals. Apart from
jurisdictional allegations and the named causes of action,
the complaint—including the entirety of its factual allega-
tions in paragraphs 3 through 75—was identical to the
Western District of Louisiana complaint. Compare J.A. 4-
22, with J.A. 78-96.
On April 24, 2015, the government moved to dismiss
for lack of subject matter jurisdiction and for failure to
state a claim upon which relief may be granted, pursuant
to RCFC 12(b)(1) and 12(b)(6). On September 10, 2015,
the Court of Federal Claims granted the government’s
motion to dismiss, finding that it was jurisdictionally
barred under 28 U.S.C. § 1500. It also found that, even if
it could overcome the jurisdictional hurdle of § 1500, it
must still dismiss Mr. Davis’s case under RCFC 12(b)(6)
because Mr. Davis failed to state any plausible claim for
which relief could be granted.
Mr. Davis timely appealed to this court. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review a Court of Federal Claims decision to dis-
miss for lack of subject matter jurisdiction de novo.
Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). The plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evi-
4 DAVIS v. US
dence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir. 2002).
Under 28 U.S.C. § 1500, the Court of Federal Claims
may not exercise jurisdiction when a related action is
pending in another court. The statute provides:
The United States Court of Federal Claims shall
not have jurisdiction of any claim for or in respect
to which the plaintiff or his assignee has pending
in any other court any suit or process against the
United States or any person who, at the time
when the cause of action alleged in such suit or
process arose, was, in respect thereto, acting or
professing to act, directly or indirectly under the
authority of the United States.
28 U.S.C. § 1500. Determining whether § 1500 applies
involves two inquiries: “(1) whether there is an earlier-
filed ‘suit or process’ pending in another court, and, if so,
(2) whether the claims asserted in the earlier-filed case
are ‘for or in respect to’ the same claim(s) asserted in the
later-filed Court of Federal Claims action.” Brandt v.
United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013) (cita-
tion omitted).
With respect to the first inquiry, whether an earlier-
filed suit is “pending” is determined at the time the com-
plaint is filed at the Court of Federal Claims. Id. at 1375.
Mr. Davis’s Western District of Louisiana suit was pend-
ing on February 23, 2015, the date he filed his complaint
with the Court of Federal Claims. Accordingly, we an-
swer the first inquiry in the affirmative.
With respect to the second inquiry, two lawsuits are
“for or in respect to” the same claim(s) if “they are based
on substantially the same operative facts, regardless of
the relief sought in each suit.” United States v. Tohono
O’Odham Nation, 563 U.S. 307, 310 (2011). Apart from
jurisdictional allegations, the entire set of facts alleged in
DAVIS v. US 5
Mr. Davis’s Court of Federal Claims complaint (para-
graphs 3 through 75) are word-for-word identical to the
set of facts alleged in his Western District of Louisiana
complaint. Compare J.A. 4-23, with J.A. 78-96. Quite
literally, his suit in the Court of Federal Claims is “based
on substantially the same operative facts,” and we must
also answer the second inquiry in the affirmative.
Mr. Davis argues that the Court of Federal Claims
erred in dismissing his claims because he sued federal
employees in their individual capacity in the Western
District of Louisiana, but sued the government in the
Court of Federal Claims. We disagree. As the Supreme
Court recognized, “[t]he [Court of Federal Claims] bar
applies even where the other action is not against the
Government but instead against a ‘person who, at the
time when the cause of action alleged in such suit or
process arose, was, in respect thereto, acting or professing
to act, directly or indirectly under the authority of the
United States.’” Tohono O’Odham Nation, 563 U.S. at
312. Here, all of the allegations that Mr. Davis makes
with respect to the four individuals he sued (Messrs.
Beyerhelm, Cooper, Smith, and Dooley) relate to actions
that were performed in their capacity as government
officials. See, e.g., J.A. 9-11, 17-21 (Complaint ¶¶ 30-33,
35, 39, 41, 69, 73-75). For example, Mr. Davis alleges that
Mr. Dooley elected to not grant his subordination, but
instead referred his application to Mr. Smith. J.A. 9
(Complaint ¶ 30). Thus, Mr. Davis’s Court of Federal
Claims suit is against individuals who were “acting or
professing to act . . . under the authority of the United
States.” Section 1500 applies.
Mr. Davis also complains that the Court of Federal
Claims failed to consider the Tucker Act. This is not true.
The Court of Federal Claims acknowledged the Tucker
Act in its opinion, but then concluded that its jurisdiction
was nevertheless barred under § 1500. J.A. 103-07.
6 DAVIS v. US
We have carefully considered the remainder of Mr.
Davis’s arguments and have determined that they lack
merit. For the foregoing reasons, we affirm the Court of
Federal Claims’ decision that its jurisdiction was barred
under § 1500. Because we can affirm the Court of Federal
Claims’ dismissal on these grounds, we need not reach the
remaining issues discussed in its decision, including its
dismissals under RCFC 12(b)(1) and 12(b)(6).
AFFIRMED