Taylor v. United States , 128 Fed. Cl. 635 ( 2016 )


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  •      lfn tbe Wniteb ~tates
    INA
    Qeourt of     jfeberal      Qelaitns
    No. 16-28C
    (Filed: October 19, 2016)
    FILED
    OCT 19 2016
    * ***** ** ** * *** * * * * *** * * ** *                                  U.S. COURT OF
    FEDERAL CLAIMS
    ROBERT L. TAYLOR,
    Plaintiff,                    Jurisdiction; Transfer
    pursuant to Section 1631;
    V.                                                  Section 1500
    THE UNITED STATES,
    Defendant.
    ** *** ** ** * ** ** ***** ** *** **
    Robert L. Taylor, Honolulu, HI, prose.
    Aaron E. Woodward, Trial Attorney, Commercial Litigation Branch,
    Civil Division, Department of Justice, Washington, DC, for defendant, with
    whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
    Robert E. Kirschman, Jr., Director, Scott D. Austin, Assistant Director.
    Michael P. Deeds, United States Anny Legal Services Agency, of counsel.
    OPINION
    BRUGGINK, Judge .
    Plaintiff, Robert L. Taylor, who appears prose, is an employee of the
    Department of the Army at Tripler Army Medical Center in Honolulu, Hawaii.
    He alleges in his complaint here (plaintiff initially filed in district court) that
    the Army improperly categorized his position as a General Schedule ("GS")-5
    Decedent Affairs Assistant when it should have been categorized as a GS-9
    Casualty Affairs Coordinator/Officer. As a result, plaintiff alleges that he was
    underpaid and improperly required to perform ce11ain duties while serving in
    the position. According to plaintiff, he was hired pursuant to a contract, which
    was breached when the Army required him to perform the duties of a GS-9
    position while classifying him as a GS-5 employee. Pending is defendant's
    motion to dismiss for Jack of jurisdiction.
    Defendant identifies a number of jurisdictional problems with this
    complaint, all of which we conclude below are compelling. What has
    considerably less appeal is defendant's alternative ground for dismissal-the
    operation of 28 U.S.C. § 1500 (2012). Admittedly, defendant's proposed
    application of this section in these circumstances has suppoti in judicial
    precedent. Where it lacks appeal is in the area of justice and common sense.
    BACKGROUND
    Mr. Taylor first filed suit in the United States District Court for the
    District of Hawaii on May 31, 2013. He subsequently filed an amended
    complaint on January 31, 2014. In his amended complaint, plaintiff sought
    back pay and damages totaling $650,000 based on his allegation that his
    Decedent Affairs position was improperly advertised and that he was assigned
    work outside of his job description. On December 3, 2014, the district court
    granted defendant's motion to dismiss the amended complaint, finding that it
    did not have jurisdiction over his claim. The order dismissing Mr. Taylor's
    district court complaint granted him leave to amend his complaint and
    informed him that ifhe wanted to proceed under a breach of contract theoty,
    he would need to waive his claim in excess of $10,000 or file his complaint in
    this court.
    On Februaty 3, 2015, plaintiff filed a motion with the district court
    seeking a transfer here, which was granted on February 13, 2015. Thereupon
    the case was transferred here pursuant to 28 U.S.C. § 1631 (2012). The
    transfer complaint was filed on March 4, 2016. As best we can determine,
    after the transfer, there was nothing remaining before the district court, and
    plaintiff has not appealed the dismissal or sought post-judgment relief in that
    forum.
    Plaintiffs complaint first alleges that the Army improperly advertised
    his position at Tripler Army Medical Center in Honolulu, Hawaii as a GS-5
    Decedent Affairs Assistant when it should have been advertised as a GS-9
    position. According to plaintiff, he asked the human resources department to
    update the job position and pay grade, but his request was denied. Plaintiff
    2
    further alleges that, shortly after beginning the position, he was given an active
    pager which in effect placed him on call 24/7. As a result, he contends that he
    developed severe sleep apnea and depression. In addition, plaintiff alleges that
    he was required to teach and train civilian personnel, staff, and uniformed
    soldiers even though those duties were not part of his job description. Plaintiff
    contends that when he took these concerns to human resources, they were not
    properly considered. His complaint seeks the following relief:
    I.     "Relief from an illegal hospital pager, that was very active. The
    plaintiff was on call 24/7, 365 days a year from July 2008 - March
    2013."
    2.     Relief from "[i]njuries associated with the illegal hospital pager. Post-
    Traumatic Stress Sleep Depression, Sleep APNEA." He claims that
    two individual employees of the Department of the Army told him to
    carry the pager and are therefore responsible for the resulting injuries
    and damages. He further claims that these individuals are liable to the
    plaintiff for his earnings for hindering the union investigation of his
    claim.
    3.     Damages for emotional distress, mental anguish, and punitive damages.
    4.     Back pay from June 1, 2008 to the present as a result of his being
    required to perform teaching and training outside of his job duties.
    Pl. 's Comp!. iii! 8-10. Plaintiff references numerous federal statutes in support
    of these claims for relief, including Title VII of the Civil Rights Act of 1964;
    the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207 (2012); the Back Pay
    Act, 5 U.S.C. § 5596 (2012); Title 18 of the United States Code; and the
    Wagner Act, 29 U.S.C. §§ 151, 157, and 158 (2012). 1
    1
    In plaintiff's response to defendant's motion, plaintiff states that the
    references to Title VII, Title 18, and the Wagner Act are ')ust references that
    the court should consider" and "a mere guide." Pl.' s Resp. 6. Thus, we do not
    consider these references to constitute claims. Plaintiff does not specifically
    address his reference to the FLSA outside of the citation in his complaint.
    During the telephonic hearing held by the court on August 24, 2016, plaintiff
    stated that he was not making a claim pursuant to the FLSA.
    3
    DISCUSSION
    We begin with defendant's substantive challenges to the court's
    subject-matter jurisdiction. It asserts that plaintiff fails to make a non-
    frivolous allegation of any claim cognizable here. We agree. Defendant
    correctly points out that plaintiffs claims for injuries as a result of his having
    to carry a pager as well as his claims for emotional distress and mental anguish
    sound in tort and are thus beyond this court's jurisdiction. See 28 U.S.C. §
    1491 (a)(l) (2012) (excepting from this court's jurisdiction cases sounding in
    tort). Punitive damages, whatever their theoretical basis in liability, are also
    not available in this court. Greene v. United States, 
    65 Fed. Cl. 375
    , 379
    (2005). Additionally, we cannot exercise jurisdiction over plaintiffs claims
    against individual employees of the Army. Stephenson v. United States, 
    58 Fed. Cl. 186
    , 190 (2003) ("[T]he only proper defendant for any matter before
    this court is the United States, not its officers, nor any other individual.")
    Nor can we entertain plaintiffs breach of contract claim. While the
    court has jurisdiction under the Tucker Act over claims under express or
    implied contracts with the United States, see 28 U.S.C. § 149l(a)(l), absent
    some colorable argument that a contract exists, we lack jurisdiction. See
    Collier v. United States, 
    56 Fed. Cl. 354
    , 356-58 (2003), ajf'd, Collier v.
    United States, 
    379 F.3d 1330
    (Fed. Cir. 2004). There is a presumption that
    federal employees hold their positions by appointment, not through
    employment contracts. Chu v. United States, 
    773 F.2d 1226
    , 1229 (Fed. Cir.
    1985). Nowhere in plaintiffs complaint has he presented any support for his
    allegation that he was hired pursuant to a contract. The Office of Personnel
    Management Standard Notification of Personnel Action Form (SF-50) for Mr.
    Taylor's employment, issued June 2, 2008, indicates that he has a typical
    "Career-Cond[itional] Appointment." Def.'s Mot. to Dismiss App. I. Thus,
    plaintiff has failed to rebut the presumption that he held his position by
    appointment, and his contract claim must therefore fail.
    We are thus left with his Back Pay Act claim. The Back Pay Act applies
    to an employee who has "been affected by an unjustified or unwarranted
    personnel action which has resulted in the withdrawal or reduction of all or
    part of the pay .... " 5 U.S.C. § 5596(b)(l) (2012). The Act does not apply
    to a situation in which the government "fail[s] to pay an employee at a higher
    rate than that at which he was paid, in the absence of an actual overall
    reduction of pay or benefits." Collier v. United States, 
    379 F.3d 1330
    , 1333
    (Fed. Cir. 2004). Plaintiff claims that he was paid at a GS-5 level while he
    4
    was really performing the duties of a GS-9 position. That argument is based
    on the assumption, not that his pay was ever reduced, but that it should have
    been higher. The Back Pay Act assumes that an appropriate authority
    previously has found that the employee has been unjustifiably affected by an
    unwarranted personnel action. See 5 U.S.C. § 5596(b). That appropriate
    authority here "would include the agency itself, or the [United States Merit
    Systems Protection Board] or the Federal Circuit where those entities have
    authority to review the agency's determination," United States v. Fausto, 
    484 U.S. 439
    , 454 (1988) (explaining that jurisdiction under the act is premised on
    an earlier determination of an unwarranted personnel action). None of those
    entities has made the necessary initial determination that plaintiff suffered an
    unwarranted personnel action, and this court is not independently authorized
    to do so. Because there has been no prior determination that plaintiff suffered
    an unwarranted reduction in pay, he is left with a bare claim for back pay, over
    which we do not have jurisdiction.
    We note finally that plaintiff referred to the FLSA in his complaint but
    disavowed it as a basis for his claims. Considering that plaintiff is proceeding
    pro se and because the court would have jurisdiction over a claim under the
    FLSA, it is necessary to consider defendant's alternative comprehensive
    defense to all of plaintiffs claims, namely 28 U.S.C. § 1500. Defendant
    argues that, even if the claim is within our subject-matter jurisdiction, and
    otherwise timely, we would be forced to dismiss it because, at the time this
    action was commenced, plaintiff had pending in the district court an action
    arising out of the same facts. It offers the following analysis.
    Under section 1631, the transfer statute, when the Arizona district court
    determined that it lacked jurisdiction over the contract claim and determined
    that it was in the interest of justice to transfer the action to this court because
    the claim could have been brought here initially, the transferred action
    proceeded "as if it had been filed in ... the [Court of Federal Claims] on [May
    31, 2013] the date upon which it was actually filed in . .. the [district court]
    .... " 28 U.S.C. § 1631 (2012). In other words, both actions are deemed, by
    operation of this remedial statute, to have been filed on May 31, 2013.
    The purpose of this statutorily required fiction is, of course, remedial:
    to prevent litigants from suffering the consequences of guessing wrong as to
    the proper forum for their claim and then possibly refiling in the correct court
    after the running of the limitations period. This is plain from the legislative
    history of section 1631:
    5
    In recent years much confusion has been engendered by
    provisions of existing law that leave unclear which of two or
    more federal courts ... have subject matter jurisdiction over
    certain categories of civil actions. The problem has been
    particularly acute in the area of administrative law where
    misfilings and dual filings have become commonplace. The
    uncertainty in some statutes regarding which court has review
    authority creates an unnecessary risk that a litigant may find
    himself without a remedy because of a lawyer's error or a
    technicality of procedures. At present, the litigant's main
    protective device, absent an adequate transfer statute, is the
    wasteful and costly filing in two or more courts at the same
    time.
    S. Rep. No. 97-275, at 11 (1981).
    Because of the complexity of the federal court system and of
    special jurisdictional provisions, a civil case may on occasion be
    mistakenly filed in a court ... that does not have jurisdiction.
    By the time the error is discovered, the statute of limitations or
    a filing period may have expired. Moreover, additional expense
    is occasioned by having to file the case anew in the proper court.
    
    Id. at 30.
    Section 1631 thus seems intentioned to escort plaintiffs prose barque
    to a safe harbor, without residual effects of confusion about misfiling. At this
    point, however, the government conjures section 1500, like some antedeluvian
    sea monster, to swallow plaintiffs complaint as soon as it docks in this court.
    That ancient relic2 provides that
    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
    2
    So much has been written about the un-necessity and inherent unfairness of
    this statute that it seems pointless to further shame Congress into repealing it.
    6
    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. The Federal Circuit in United States v. County of Cook,
    
    170 F.3d I
    084, 1090 (Fed. Cir. 1999), and Griffin v. United States, 
    590 F.3d 1291
    , 1293 (Fed. Cir. 2009), had occasion to consider the interplay between
    section 1631 and section 1500.
    In Cook, the district court transferred some, but not all, of the counts in
    the complaint filed there to the Court of Federal Claims. While section 1631
    had not yet been consistently interpreted to allow partial transfers, the circuit,
    emphasizing the remedial nature of the statute,3 held that partial transfers
    should be allowed. That was the good news for plaintiff. The bad news was that
    the court also found that what remained in the district court and what was
    transferred to this court were "for or in respect to" the same claims, triggering
    the possible application of section 1500. The court had no difficulty
    concluding that the non-transferred claims still pending in the district comi
    arose out of the same operative facts as the claims transferred to the Court of
    Federal Claims and that they both sought money with interest, although under
    different legal theories. 3 With respect to the "has pending" requirement of
    section 1500, the court considered that the effect of section 1631 was that the
    complaints were filed simultaneously. Although it found no precedent squarely
    on point, it concluded that the policies behind section 1500 are promoted by
    precluding jurisdiction in the Court of Federal Claims "in the simultaneous
    context. " 4
    3
    "§ 1631 was designed to remedy the situation in which a litigant has
    mistakenly filed an action in a court that lacks jurisdiction. . . . Section 1631
    was clearly intended by Congress to remedy this problem through the simple
    mechanism ofa transfer to the court of proper 
    jurisdiction." 170 F.3d at 1089
    .
    4
    Cook was decided before the Supreme Court's decision in Tohono 0 'Odham,
    which removed the relief-sought prong of the test for overlap under section
    1500. Tohono O'Odham Nation v. United States, 
    563 U.S. 307
    , 315-16
    (2011).
    'Id. at I 091. With respect to the policy purposes of section 1500, the court cited
    the Court of Claims decision in National Cored Forgings v. United States, 132
    (continued ... )
    7
    Simultaneity can arise one of two ways, however. A litigant can choose
    to file in two courts at the same time (although that might be difficult today,
    given the precise electronic recordation of filings), or by operation of section
    1631. The holding of Cook is that this distinction does not matter. The
    interest of Congress in forcing an election by the plaintiff is satisfied.
    It is noteworthy that the Federal Circuit in Cook clarified that section
    1500 is not implicated when all of the claims in an action are transferred to the
    Court of Federal Claims pursuant to section 1631, avoiding thereby what
    would have amounted to a nice metaphysical problem:
    Section 1631 mandates that the transferred claims be treated as
    if they were filed in the transferee court at the time they were
    filed in the transferor court. Therefore, when all claims in an
    action are transferred, no claims are pending in the district court
    that could preclude jurisdiction over the transferred claims 
    ... 170 F.3d at 1091
    n.8.
    The government also cites Griffin v. United States, 
    590 F.3d 1291
    (Fed.
    Cir. 2009), a case in which the Federal Circuit affirmed dismissal of a transfer
    complaint based on the operation of section 1500. As best we can determine
    from the factual recitation there, the district court had granted judgment for the
    United States on three of the original four counts and contemporaneously
    transferred the one remaining count to the COFC. It appears that the transfer
    occurred after the entry of summary judgment, but it is not clear whether
    plaintiff appealed or otherwise challenged the grant of summary judgment.
    The appeals court concluded that dismissal under section 1500 was mandated
    because, under the Cook holding, the transfer statute compels the receiving
    court to consider the transferred claim to have been filed simultaneously in
    (... continued)
    F. Supp. 454, 458 (Ct. Cl. 1955) ("The obvious and declared purpose of[§
    1500) was to require an election between a suit in this court against the United
    States and one brought" in the district courts.), and UNR. Industries, Inc. v.
    United States, 962. F.2d 1013, 1018 (Fed. Cir. 1992)(purpose of the statute is
    to "force plaintiffs to choose between pursuing their claims in the Court of
    Claims or in another court .... ")
    8
    both courts. 
    Id. at 1295.
    The Federal Circuit has clarified, in Brandt v. United States, 
    710 F.3d 1369
    , 1376 (Fed. Cir. 2013), that after dismissal, a case is not pending for
    section 1500 purposes unless an appeal or motion for reconsideration is
    actually filed. 5 It is insufficient to trigger section 1500 merely ifthe time for
    filing a post-judgment motion or an appeal has not run. 
    Id. The government
    also cites an opinion of this court, Skokomish Indian
    Tribe v. United States, 
    115 Fed. Cl. 116
    (2014), in which Judge Allegra
    applied Griffin and Cook in the context of a section 1500 challenge to a
    transferred action. In that case, the transfer did not occur until the appeal of
    the dismissal of all claims was being considered by the Ninth Circuit. Judge
    Allegra granted a motion to dismiss, concluding that the non-transferred claims
    against the federal government were pending on the date of the deemed filing
    of the COFC claim, and that the district court and COFC claims were "for or
    in respect to" the same claim, based on the "substantially the same operative
    facts" test set out in Toho no 0 'Odham.
    The logic behind Cook and presumably Griffin is that the plaintiff in a
    partial transfer situation is fundamentally in the same posture as a litigant who
    commences one suit in district court and then commences a second action here,
    even when the remaining district counts are simultaneously dismissed.
    According to defendant, the present situation is identical to that in Griffin.
    case. The district court dismissed all but one of Mr. Taylor's claims for lack
    ofjurisdiction. The remaining contract claim, the district court concluded, also
    was not within its jurisdiction, but that claim was transferred here. There is no
    suggestion that Mr. Taylor has or had pending any post trial challenge to
    dismissal.
    Unfortunately for plaintiff, we think the "logic" of this string of cases
    is that section 1500 is a bar here, despite the fact that the dismissal of the other
    district court claims does not appear to have been challenged. I.e., even
    though the other claims were not pending at the time of the transfer, the
    relevant date of inquiry is, by operation of section 1631, the date of the initial
    6
    Brandt involved a direct filing in the Court of Federal Claims, although a
    motion to transfer had been filed and denied in the district court prior to the
    dismissals there.
    9
    district court filing. This result may appeal to pharisees, but it is the sort of
    thing that occasionally gives law a bad name.
    The question then, for the present case, is whether there were non-
    transfened claims filed in the district court, and if so, were they based on the
    same operative facts. The answer to the first half of that question is plainly,
    yes. And we think defendant is conect that the second test is met under the
    very streamlined Tohono inquiry. The operative facts here and those
    underlying the other claims filed in district court are identical.
    The irony, of course, is that it is only because of the operation of section
    1631, a remedial statute designed to rescue litigants from understandable
    confusion about jurisdiction,6 that section 1500 could operate here. Under
    Griffin, section 1631 dictates that the complaints were filed simultaneously,
    and section 1500 becomes a bar to an action only partially transferred to this
    court, even if all the other district court claims have been dismissed.
    Defendant thus is correct that section 1500 is also a comprehensive
    jurisdictional bar. 7
    CONCLUSION
    7
    Statutes relating to procedure are given a liberal interpretation, since personal
    or property rights are not affected. See 3 N. Singer & S. Singer, Sutherland
    Statutory Construction § 60:5 (7th ed. 2014). Likewise, exceptions to the
    operation of a remedial statute are disfavored. 
    Id. at §
    60: 1. In addition,
    Courts assume that a legislature always has in mind previous
    statutes relating to the same subject when it enacts a new
    provision. In the absence of any express repeal or amendment,
    the new provision is presumed to accord with the legislative
    policy embodied in those prior statutes, and they all should be
    construed together.
    2B N. Singer & S. Singer, Sutherland Statutory Construction§ 51:2 (7th ed.
    2014) (footnotes omitted).
    8
    Thus, even if plaintiff had intended to base a claim on the Fair Labor
    Standards Act, such a claim would be barred, although only by operation of
    section 1500.
    10
    For the reasons stated above, we grant defendant's motion to dismiss
    for lack of subject-matter jurisdiction. The clerk is directed to dismiss the
    complaint without prejudice. No costs .
    ~.B~ ./
    Senior Judge
    11