NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MIGUEL ILAW,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2015-5096

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:15-cv-00173-MBH, Judge Marian Blank 

Horn.

______________________ 

Decided: November 9, 2015

______________________ 

MIGUEL ILAW, San Jose, CA, pro se.

MARIANA TERESA ACEVEDO, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER. 

______________________ 

Before LOURIE, HUGHES, and STOLL, Circuit Judges.
2 ILAW v. US

LOURIE, Circuit Judge. 

Miguel Ilaw (“Ilaw”) appeals from the U.S. Court of 

Federal Claims (“the Claims Court”) decision granting his

request for voluntary dismissal, dismissing his complaint

with prejudice, and declining to transfer his case to the 

U.S. District Court for the District of Columbia. Ilaw v. 

United States, 121 Fed. Cl. 408 (2015). For the reasons 

set forth below, we vacate and remand. 

BACKGROUND

This appeal relates to an elaborate web of cases before 

every echelon of state and federal court, which the Claims 

Court thoroughly described in its opinion below. We now

provide only a brief overview of that history. 

In April 2003, Ilaw started working for the Daughters

of Charity Health System (“DCHS”) as an insurance 

verifier and patient account representative. It is unclear 

what his employment status was from July 2003 to February 2007, but Ilaw alleges that in February 2007, he 

was offered a full-time insurance verifier position in the

DCHS Caritas Department. According to Ilaw, he was 

the “‘fifth youngest member and the only male member’” 

on his team. Id. at 411. 

In May 2010, after an “‘urgent reorganization,’” Ilaw’s 

team relocated to DCHS’s O’Connor Hospital. Id. While 

at O’Connor Hospital, Ilaw was assigned to a new female 

manager and female supervisor. According to Ilaw, from 

May to September 2010, he suffered gender-based discrimination and harassment under the new management. 

After alleged attempts to work with DCHS to “remedy 

and resol[ve]” the alleged harassment, Ilaw was eventually terminated on September 14, 2010. Id. The next day, 

Ilaw filed a disability claim at the Workers’ Compensation 

Appeals Board in San Jose, California. It is unclear from 

the record what eventually became of that claim. But on 

September 16, 2010, Ilaw filed a complaint at the Equal 
ILAW v. US 3

Employment Opportunity Commission, alleging discrimination under Title VII, and requesting a Notice of Right to 

Sue. 

Ilaw subsequently retained counsel, and on November 

5, 2010, sued DCHS in the Superior Court of Santa Clara 

County of California, claiming, inter alia, gender discrimination and wrongful termination. In March 2011, Ilaw 

agreed to alternative dispute resolution, signing a settlement agreement releasing DCHS from any and all claims. 

Over the next few days, however, Ilaw uncovered what he 

considered to be an objectionable provision, immediately 

withdrew from the agreement, and removed his attorney 

for “betrayal and misrepresentation.” Id. at 413. Thus 

began a barrage of pro se filings before state and federal 

courts. 

In the Superior Court, Ilaw moved to dismiss his November 5, 2010 action without prejudice. Yet despite that 

voluntary dismissal, Ilaw continued to file similar claims 

in the Superior Court. In September 2011, for example, 

Ilaw filed a claim against DCHS and its Caritas Department for wrongful termination. In April 2012, he filed 

two “fraud” claims: one against the State of California and 

the Superior Court; the other against Littler Mendelson

PC, who represented DCHS. And by July 2012, Ilaw had 

earned “Vexatious Litigant Status” in the Superior Court. 

See id. at 414 n.5. Indeed, as the Claims Court notes: “On 

multiple occasions during [Ilaw’s] State court proceedings, 

the court was notified of [his] vexatious litigant status 

and other litigations. On at least one occasion, [Ilaw] was 

denied permission to file in the State court based on his 

status as a vexatious litigant.” Id. at 416 (footnote omitted). 

While Ilaw’s various state actions, some of which he 

voluntarily dismissed, id. at 416 n.7, meandered through 

the hierarchy, he filed additional related actions in federal court. In June 2011, for example, Ilaw filed an action 
4 ILAW v. US

in the United States District Court for the Northern 

District of California against DCHS claiming, inter alia, 

gender discrimination and wrongful termination. After 

failed appeals to the Ninth Circuit and the United States 

Supreme Court, Ilaw again filed a complaint in the district court naming Littler Mendelson, DCHS, the Judicial 

Counsel of California, and Judge Lucy Koh, among others,

as defendants. He alleged violations of his constitutional 

rights and causes of action under 42 U.S.C. §§ 1983, 1985, 

and 1986. Ilaw’s allegations were repeatedly dismissed 

because, as the Ninth Circuit noted, “‘the questions raised 

in this appeal are so insubstantial as not to require further argument.” Id. at 419. 

On February 24, 2015, Ilaw filed the instant complaint in the Claims Court, naming the United States, 

Judge Lucy Koh, and Littler Mendelson as defendants.1 

Ilaw alleged violations of his constitutional rights under 

the Fifth and Fourteenth Amendments; civil rights violations under 42 U.S.C. §§ 1983 and 1985; and the “tort of 

outrage/physical illness.” Id. at 419–20. Ilaw also filed a 

“motion/notice for disqualification of Ninth Circuit 

courts.” Id. at 420 (emphasis removed). Shortly thereafter, and before the defendants could file their responses, 

Ilaw filed “an application for voluntary dismissal and 

removal to [the District Court for the District of Columbia].” Appellee’s App. 56. The defendants filed a response 

in support of dismissal, but opposing any transfer and 

alternatively recommending summary dismissal. See id.

at 59–67. Ilaw responded, opposing summary dismissal 

and arguing “[t]he Court should not dismiss the claim as 

1 While this case remained pending before the 

Claims Court, Ilaw filed a similar case in the District 

Court for the District of Columbia. Ilaw v. Dep’t of Justice, No. 15-cv-00609 (D.D.C. Apr. 21, 2015); Appellee’s 

App. 182–232. 

 
ILAW v. US 5

frivolous as the Court is simply without jurisdiction over 

the subject matter and private parties.” Id. at 152. 

The Claims Court granted Ilaw’s motion for voluntary 

dismissal, but declined to transfer the case. With respect 

to the dismissal, the court reasoned that: (1) it only has

jurisdiction over claims against the United States; thus, 

the claims against Littler Mendelson and Judge Koh were 

improperly before it, Ilaw, 121 Fed. Cl. at 424; (2) neither 

the due process nor equal protection clauses of the Fifth 

and Fourteenth Amendments are money-mandating, and 

thus neither can provide the court with jurisdiction under 

the Tucker Act, id. at 425–26; and (3) it has never had 

jurisdiction over claims under the Civil Rights Act, or 

those that sound in tort, id. at 426–27. 

The court then declined to transfer Ilaw’s case, finding that he failed to satisfy the statutory requirements for 

such a transfer. Id. at 428. Specifically, the court held 

that transferring Ilaw’s case would not be in the “‘interest 

of justice,’ given the exhaustive history of [Ilaw’s] prior, 

unsuccessful litigation in State and Federal Courts, and 

the prior finding by numerous courts of the frivolous and 

vexatious nature of [Ilaw’s] allegations.” Id. Moreover, 

the court noted that “Ilaw filed a complaint in the United 

States District Court for the District of Columbia, shortly 

after he filed the above captioned case in this court,” and 

that “absolutely no purpose would be served to transfer

the above captioned case to the same court.” Id. 

The complaint was then dismissed with prejudice. 

Ilaw timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

In reviewing decisions of the Claims Court, we apply a 

de novo standard to legal conclusions, and a clear-error 

standard to factual findings. See Kansas Gas & Elec. Co. 

v. United States, 685 F.3d 1361, 1366 (Fed. Cir. 2012). 
6 ILAW v. US

Procedural questions, such as the application of the rules 

governing voluntary dismissals, are legal in nature and 

therefore reviewed de novo. See, e.g., Youssef v. Tishman 

Const. Corp., 744 F.3d 821, 824 (2d Cir. 2014) (quoting 

ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 

109 (2d Cir. 2012)). 

This appeal turns on proper application of the Rules 

of the U.S. Court of Federal Claims (“RCFC”)2 governing 

voluntary dismissals. Under Rule 41(a)(1)(A)(i), a plaintiff may voluntarily dismiss his action by filing a “notice 

of dismissal” before the opposing party serves an answer 

or a motion for summary judgment. RCFC 41(a)(1)(A)(i). 

Unless the notice states otherwise, the plain text of the 

rule provides that such a dismissal is “without prejudice.” 

Id. 41(a)(1)(B).3 The court has no discretion in that

respect. See, e.g., Youseff, 744 F.3d at 824 (citing Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 

1077 (9th Cir. 1999) (“[A] court has no discretion to exercise once a Rule 41(a)(1) dismissal is filed.”)). If, however, 

dismissal is not available under Rule 41(a)(1)(A)(i), viz., 

the plaintiff desires dismissal at a later time point in the 

2 Rules 41(a)(1) and 41(a)(2) of the Rules of the U.S. 

Court of Federal Claims are identical, in relevant part, to 

Rules 41(a)(1) and 41(a)(2) of the Federal Rules of Civil 

Procedure. 

3 Rule 41(a)(1)(B) also notes: “if the plaintiff previously dismissed any federal- or state-court action based 

on or including the same claim, a notice of dismissal 

operates as an adjudication on the merits,” i.e., a dismissal with prejudice. That provision does not apply here, 

however, because, as the government admits, “Mr. Ilaw 

voluntarily dismissed actions in state and Federal Court 

stemming from his employment dispute with Daughters 

of Charity Health System, although not containing the 

same claims at issue herein.” Appellee’s Br. 9. 

 
ILAW v. US 7

proceedings, then “an action may be dismissed at the 

plaintiff’s request only by court order, on terms that the 

court considers proper.” RCFC 41(a)(2). The court necessarily enjoys some discretion in issuing that order, including the authority to dismiss with prejudice. Cf. Walter 

Kidde Portable Equip., Inc. v. Universal Sec. Instruments, 

479 F.3d 1330, 1336 (Fed. Cir. 2007) (“Rule 41(a)(2) gives 

courts discretion in deciding whether to grant a plaintiff’s 

motion to voluntarily dismiss and whether to impose 

terms and conditions in granting such a motion.”). 

In this case, Ilaw filed, what he terms, an “application 

for voluntary dismissal and removal to district court.” 

Appellee’s App. 56–58. This “application” was filed before 

the defendants served either an answer or a motion for 

summary judgment. See Ilaw, 121 Fed. Cl. at 410. And, 

in this “application,” Ilaw states: “Respectfully, indigent 

and pro se Plaintiff Miguel Ilaw is voluntarily dismissing 

his claim without prejudice under this Court for ‘lack of 

jurisdiction’ and transferring to United States District 

Court, The District of Columbia, above-entitled Case No. 

15-0173-MBH.” Appellee’s App. 56. 

Ilaw argues that his application for dismissal invoked 

Rule 41(a)(1)(A)(i), see Appellant’s Br. 9, and thus, in light 

of the plain text of that rule, the Claims Court erred in 

dismissing with prejudice. The government responds by 

suggesting that Ilaw’s application, which arguably includes language requesting a transfer, instead falls under 

Rule 41(a)(2), see Appellee’s Br. 9–10, and thus the court

had the discretion to dismiss the case with prejudice. The 

government also contends that the Claims Court properly

rejected Ilaw’s transfer request, irrespective of its dismissal with prejudice. 

Despite the Claims Court’s thorough opinion delineating the boundaries of its jurisdiction and fully supporting

its denial of transfer, we nonetheless agree with Ilaw that 

the court erred in dismissing his complaint with preju-
8 ILAW v. US

dice. We accordingly vacate and remand with direction to 

dismiss Ilaw’s complaint without prejudice. In light of 

that holding, any discussion of transfer is moot. 

 Certainly, the form of Ilaw’s “application” leaves much

to be desired: it does not invoke the exact language of the 

rule, lacking the proper “notice of dismissal” title, and it 

oddly incorporates a possible request for transfer. But we 

decline to penalize Ilaw, a pro se plaintiff, for less than 

ideal form. As some of our sister circuits have held in 

similar contexts, form should not usurp substance. In 

Smith v. Potter, for example, the Seventh Circuit found

that a document captioned “motion to voluntarily dismiss” 

constituted a “notice of dismissal” for purposes of Rule 

41(a)(1)(A)(i), warranting a dismissal without prejudice. 

513 F.3d 781, 782–83 (7th Cir. 2008); accord Williams v. 

Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976) (“Although Rule 

41(a)(1) was not cited in the Motion for Dismissal, there is 

no question that the plaintiffs were acting pursuant to it. 

That it was styled a ‘Motion for Dismissal’ rather than a 

‘Notice of Dismissal’ is, in our opinion, a distinction without a difference.”); cf. Garber v. Chi. Mercantile Exch., 570 

F.3d 1361 (Fed. Cir. 2009) (relying on Smith in holding

that the parties’ agreement satisfied the requirements of 

Rule 41(a)(1)(A)(ii) despite deviations from the standard 

form, i.e., the inclusion of an additional proposed order). 

We conclude similarly here. Ilaw’s “application” is 

nothing more than a “notice of dismissal,” properly filed 

before the defendants served an answer or a motion for 

summary judgment. Ilaw, 121 Fed. Cl. at 410. Indeed, 

Ilaw recognizes the import of Rule 41(a)(1)(A)(i)’s timing 

prescription, and appears to invoke its language by stating: “As of the present date . . . the Defendant has not 

submitted any response to motion for disqualification . . . 

nor answer to the federal complaint.” Appellee’s App. 56. 

As such, the simple filing of the “application” effected the 

termination of the lawsuit, divesting the Claims Court of 

jurisdiction and warranting consequent dismissal without 
ILAW v. US 9

prejudice. See, e.g., Youssef, 744 F.3d at 824 (“A dismissal 

with prejudice, in this circumstance, constitutes grounds 

for vacatur and remand with instructions to correct the 

error.” (citing Pedrina v. Han Kuk Chun, 987 F.2d 608, 

610 (9th Cir. 1993); Manze v. State Farm Ins. Co., 817 

F.2d 1062, 1069 (3d Cir. 1987))). 

The government’s attempts to redefine Ilaw’s “application” are unpersuasive. As an initial matter, the application itself highlights Ilaw’s action: Ilaw “is voluntarily 

dismissing,” an absolute right early in the proceedings, 

and “is . . . transferring to” another court. Appellee’s App. 

56. The “application” thus lacks a formal transfer request, and importing one is certainly a stretch. Indeed, 

Ilaw’s own actions underscore his understanding that he 

was responsible for moving his case to the district court. 

On April 21, 2015, one month after Ilaw filed his “application for voluntary dismissal,” Ilaw filed a complaint in the 

District Court for the District of Columbia, alleging a 

myriad of similar claims. Appellee’s App. 56. 

Even if Ilaw’s statement can be construed as a transfer request, it does not change the form of the underlying 

“notice of dismissal” and invoke Rule 41(a)(2). Rule 

41(a)(2) only applies “[e]xcept as provided in Rule 

41(a)(1),” and Rule 41(a)(1)(i) is otherwise a lenient rule 

married to temporal requirements; if those requirements 

are satisfied, then Rule 41(a)(1)(i) applies. 

Moreover, a transfer request is entirely irrelevant in 

view of the overwhelming power of a notice of dismissal 

during the proceeding, viz., the filing of the notice itself 

terminates the suit and divests the court of jurisdiction

over all subsequent motions. In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 165 (3d Cir. 2008) 

(“Up to the ‘point of no return,’ dismissal is automatic and 

immediate—the right of a plaintiff is ‘unfettered.’ A 

timely notice of voluntary dismissal invites no response 

from the [tribunal] and permits no interference by it.”)
10 ILAW v. US

(citations omitted); see 9 Charles Alan Wright & Arthur R. 

Miller, Federal Practice & Procedure: Civ. 3d § 2367, at 

559–61 (3d ed. 2008) (“After the dismissal, the action is no 

longer pending in the district court and no further proceedings in the action are proper.”). Ilaw’s “application” 

effected an immediate termination, and the Claims Court 

accordingly lacked the authority to dismiss with prejudice 

or address transfer. Any discussion whether the court 

abused its discretion in declining to transfer is thus moot. 

If the Claims Court had wished to dismiss with prejudice as a sanction for Ilaw’s almost certain litigation 

abuse thus far, then it would have so stated, offering an 

appropriate explanation in its thorough opinion that its 

action was in fact a sanction. Absent such an explanation, however, we simply cannot affirm the court’s dismissal with prejudice. 

CONCLUSION

The Claims Court erred in dismissing Ilaw’s complaint with prejudice. We therefore vacate and remand 

with direction to dismiss the complaint without prejudice. 

In light of that holding, the appeal from the decision not 

to transfer is moot. 

VACATED AND REMANDED

COSTS

No costs.