NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

THIRPLUS TINO MOOSE BEY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2023-1924

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:22-cv-01699-MHS, Judge Matthew H. Solomson.

______________________ 

Decided: February 9, 2024

______________________ 

THIRPLUS TINO MOOSE BEY, Bastrop, TX, pro se. 

 MARGARET JANTZEN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BRIAN M. BOYNTON, LISA LEFANTE DONAHUE, PATRICIA M.

MCCARTHY. 

 ______________________ 

Before LOURIE, DYK, and STARK, Circuit Judges.

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2 BEY v. US

PER CURIAM. 

Thirplus Tino Moose Bey appeals from a decision of the 

United States Court of Federal Claims (“the Claims Court”)

dismissing his complaint for lack of subject-matter jurisdiction. Moose Bey v. United States, No. 22-1699C, SAppx. 

11–16 (Fed. Cl. Mar. 8, 2023) (“Decision”).1 The Claims 

Court also held that Bey’s breach of contract claims were 

barred by principles of res judicata. Decision at 5. For the 

following reasons, we affirm. 

BACKGROUND

Bey, a federal prisoner incarcerated in Balstrop, Texas,

alleges that he entered into a “novation agreement” with 

the U.S. government that altered the terms of his plea 

agreement under Federal Rule of Criminal Procedure 

11(c)(1)(C). Id. at 1.

The terms of the alleged “novation agreement” in question mandate Bey’s immediate release from prison, SAppx. 

4, subject to certain conditions of continued supervision

and repayment, SAppx. 2–3. The alleged “agreement” also 

provides that the government “agrees to all herein stated 

via a non[-]response to this Notice of Novation within seven 

days of receipt of this notice.” SAppx. 6. Additionally, the

purported novation includes a “Penalty Clause” requiring 

the payment of $100,000,000 to Bey in the event that the 

government breaches the “agreement.” SAppx. 5.

Bey sent the purported “novation agreement” to an Assistant United States Attorney (“AUSA”) via U.S. Mail, and 

it was received on September 15, 2021. SAppx. 7. After 

the government failed to respond, Bey subsequently mailed 

a “Notice of Enforcement” on October 6, 2021, informing 

1 “SAppx.” refers to the supplemental appendix that 

the government filed in this court with its informal response brief.

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BEY v. US 3

the government of its purported breach due to its failure to 

order Bey’s immediate release. SAppx. 8–10. He then filed 

a complaint in the Claims Court on November 14, 2022. 

Decision at 1. 

The Claims Court dismissed Bey’s complaint sua 

sponte pursuant to Rule 12(h)(3) of the United States Court 

of Federal Claims, holding that it lacked subject-matter jurisdiction. Id. at SAppx. 13. The court held that it (1) could 

not hear Bey’s claims against the recipient AUSA, as those 

claims were against an individual federal official, (2) could 

not hear Bey’s claims against the United States regarding 

false imprisonment, as those claims “sound[ed] in tort,” (3) 

could not hear Bey’s claims predicated on state law, (4) 

could not hear Bey’s claims against the United States regarding breach of contract, as Bey never alleged the existence of a valid contract, and (5) could not order Bey’s

immediate release from prison, as that is criminal injunctive relief beyond the court’s power. Id. at SAppx. 13–15. 

The Claims Court also held that Bey’s claims regarding 

breach of contract were barred by principles of res judicata, 

identifying a Fifth Circuit case, among others, in which Bey 

put forward substantially similar arguments regarding an

alleged unilateral amendment of his plea agreement 

through a purported novation. Id. at SAppx. 15. Bey subsequently filed a motion for reconsideration attempting to 

supplement his breach of contract claims, which the Claims 

Court denied. SAppx. 17–19.

Bey timely appeals to this court. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We “review the Court of Federal Claims findings of fact 

for clear error and its legal rulings without deference.” 

John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 

1353 (Fed. Cir. 2006), aff’d, 552 U.S. 130 (2008). The existence of jurisdiction in the Claims Court is a legal issue reviewed de novo. RAMCOR Servs. Grp., Inc. v. United 

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4 BEY v. US

States, 185 F.3d 1286, 1288 (Fed. Cir. 1999). Additionally, 

“[i]t is well-established that the plaintiff bears the burden 

of establishing the court’s jurisdiction by a preponderance 

of the evidence.” Brandt v. United States, 710 F.3d 1369, 

1373 (Fed. Cir. 2013). 

Furthermore, “[t]he jurisdiction of the Court of Federal 

Claims is defined by the Tucker Act, which gives the court 

authority to render judgment on certain monetary claims 

against the United States.” RadioShack Corp. v. United 

States, 566 F.3d 1358, 1360 (Fed. Cir. 2009) (citing 

28 U.S.C. § 1491(a)(1)). However, “[t]he Tucker Act itself 

does not create a substantive cause of action; in order to 

come within the jurisdictional reach and the waiver of [sovereign immunity of] the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the 

right to money damages.” Fisher v. United States, 402 F.3d 

1167, 1172 (Fed. Cir. 2005) (citing United States v. Mitchell, 463 U.S. 206, 216 (1983); United States v. Testan, 424 

U.S. 392, 398 (1976)).

Bey no longer seeks his immediate release from incarceration and limits his appeal to seeking monetary damages under the purported novation’s “Penalty Clause” 

totaling $100,000,000. Appellant’s Informal Reply Br. at 6. 

Each of Bey’s arguments regarding subject-matter jurisdiction on appeal is now premised on his “breach of contract” 

theory, which alleges that the government failed to meet 

its obligations under Bey’s Rule 11(c)(1)(C) plea agreement 

as amended by the alleged “novation agreement” in question. 

Bey argues that the Supreme Court has treated plea 

agreements as “essentially contracts.” Puckett v. United 

States, 556 U.S. 129, 137 (2009); Appellant’s Informal Br. 

at 6. However, the Court also warned that “the analogy 

may not hold in all respects.” Puckett, 556 U.S. at 137. The 

relevant question in this case is whether or not the alleged 

“novation agreement” effectively altered the terms of Bey’s 

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BEY v. US 5

plea agreement, as Bey does not allege any breach of the 

original terms of his plea agreement. As such, the purported novation is the primary focus of our analysis. And 

we conclude that the so-called “novation agreement” did 

not alter the terms of Bey’s plea agreement as the government never agreed to it.

Specifically, Bey argues that the government accepted 

his proposed novation by failing to respond to it within 

seven days of its receipt. He relies on the clause within the 

alleged “novation” that explicitly provides that the government “agrees to all herein stated via a non[-]response to 

this Notice of Novation within seven days of receipt of this 

notice.” SAppx. 6. And, because the government failed to 

respond within that specified time period, Bey contends

that the proposed novation was accepted, thereby altering

the terms of his original plea agreement.

The Claims Court held otherwise, and we agree with 

the court that Bey has failed to allege any non-frivolous, 

non-conclusory allegations of fact suggesting that the “novation agreement” comprised a valid contract with the 

United States government. 

General principles of contract law instruct that silence 

should only be treated as an acceptance of an offer in very

limited instances. See Restatement (Second) of Contracts 

§ 69 (Am. L. Inst. 1981). Bey argues that his situation falls 

within one of those narrow exceptions, specifically “[w]here 

because of previous dealings or otherwise, it is reasonable 

that the offeree should notify the offeror if he does not intend to accept.” Id. at § 69(1)(c). Bey contends that the 

criminal proceeding in district court resulting in his original plea agreement and incarceration constituted previous 

dealings wherein it is reasonable that the government 

should have notified Bey if it did not intend to accept his 

novation agreement. Appellant’s Informal Br. at 8–9. That

is not correct. A federal criminal prosecution that involves 

a plea agreement is not a previous dealing that would

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6 BEY v. US

reasonably imply that silence following another offer 

should be treated as acceptance. A criminal prosecution is

quite different from the type of longstanding, repetitious 

previous dealings that may form a reasonable basis for interpreting silence in a commercial negotiation as an acceptance. See Restatement (Second) of Contracts § 69 cmt. 

d (Am. L. Inst. 1981). 

That treatment is supported by Federal Rule of Criminal Procedure 11, which governs procedures regarding plea

agreements. Among other requirements, Rule 11 mandates that “[t]he parties must disclose the plea agreement 

in open court when the plea is offered, unless the court for 

good cause allows the parties to disclose the plea agreement in camera.” Fed. R. Crim. P. 11(c)(2). Furthermore, 

in the case of Rule 11(c)(1)(A) or (C) plea agreements, “the 

court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” 

Fed. R. Crim. P. 11(c)(3)(A). Rule 11’s requirements for

public disclosure and judicial oversight prior to finalizing a 

plea agreement further support the conclusion that a criminal prosecution involving a plea agreement does not provide a basis for treating silence following a later offer as 

acceptance.

Accordingly, the government’s silence following its receipt of the “novation agreement” did not constitute an acceptance of its terms, and no valid contract was formed that 

would alter the terms of Bey’s original plea agreement. As 

such, the Claims Court correctly determined that it lacked 

jurisdiction in this case based on a purported breach of the 

so-called “novation agreement.” That determination forecloses many of Bey’s other arguments regarding whether

or not an AUSA possesses authority to bind the government to a “novation agreement.” Furthermore, we need not 

assess the preclusive effect of a similar Fifth Circuit decision in another case brought by Bey, although we note that 

that court arrived at the same conclusion as we do here. 

See Moose v. FNU LNU, No. 22-50002, 2022 WL 4493720 

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BEY v. US 7

(5th Cir. Sept. 27, 2022) (“Here, Moose attempts to unilaterally change the terms of his plea agreement and sentence 

to obtain immediate release and asserts that the Government has agreed to this novation by its silence. This contention is without merit.”). Bey has therefore failed to 

establish the Claims Court’s jurisdiction over his complaint 

by a preponderance of the evidence.

CONCLUSION

We have considered Bey’s remaining arguments but 

find them unpersuasive. For the foregoing reasons, the decision of the Claims Court is affirmed. 

AFFIRMED

Case: 23-1924 Document: 17 Page: 7 Filed: 02/09/2024