# INA lf 

# ntbe Wniteb**~tates** 

# Qeourt ofjf 

# eberal Qelaitns

No. 16-28C (Filed: October 19, 2016) 

# FILED OCT 1 92016 U

.S

. COURT OF FEDERAL CLAIMS 

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## ** * * ROBERT L. TAYLOR, 

### Plaintiff,

V. THE UNITED ST ATES, 

### Defendant. 

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## * Robert L. 

### Taylor, Honolulu, HI,

### prose. Jurisdiction; Transfer pursuantto Section 1631; Section 1500



### Aaron E. 

### Woodward, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant, with whom were

### Benjamin 

### C. Mizer, Principal DeputyAssistantAttorney General, 

### Robert E. 

### Kirschman, Jr., Director, 

### Scott D. Austin, Assistant Director. 

### Michael P. Deeds, United States Anny Legal Services Agency, ofcounsel.

OPINION
BRUGGINK, 

### Judge

. Plaintiff, Robert L. Taylor, who appears

### prose, is an employee ofthe DepartmentoftheArmy atTriplerArmyMedical Centerin Honolulu,Hawaii. He alleges in his complaint here (plaintiffinitially filed in district court) that theArmy 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, plaintiffalleges thathewas underpaid and improperly required to perform ce11ain duties while serving inthe position. Accordingtoplaintiff, he was hiredpursuantto 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 ofjurisdictional 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, plaintiffsought back pay and damages totaling $650,000 based on his allegation that his DecedentAffairspositionwas improperly advertised and thathe was assigned work outside ofhisjob description. On December 3, 2014, the district court granted defendant's motion to dismiss the amended complaint, finding that it did not havejurisdiction 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 ofcontract 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 plaintiffhas not appealed the dismissal or soughtpost-judgment reliefin 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

2further alleges that, shortly afterbeginningtheposition, hewas given an active pager which in effectplaced him on call 24/7. As a result, he contends that he developed severe sleep apnea and depression. In addition, plaintiffallegesthat he was required to teach and train civilian personnel, staff, and uniformed soldiers even though those duties were notpart ofhisjob 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. Relieffrom "[i]njuries associated with the illegal hospital pager. PostTraumatic Stress Sleep Depression, Sleep APNEA." He claims that two individual employees ofthe Department ofthe Army told him to carry the pager and are therefore responsible for the resulting injuries and damages. He further claims thatthese individuals are liable to the plaintifffor his earnings for hindering the union investigation ofhis claim. 3. Damagesfor emotional distress, mental anguish, andpunitive damages. 4. Back pay from June 1, 2008 to the present as a result of his being required to perform teaching and training outside ofhisjob duties. Pl. 's Comp!. 

## iii! 8-10. Plaintiffreferences numerous federal statutes in support ofthese claims for relief, including Title VII ofthe Civil Rights Act of 1964; the FairLabor Standards Act ("FLSA"), 29 U.S.C. §207 (2012); the BackPay 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

1In plaintiff's response to defendant's motion, plaintiff states that the references to Title VII, Title 18, and the Wagner Act are ')ustreferences that the court should consider" and "amere guide." Pl.'s Resp. 6. Thus, we do not consider these references to constitute claims. Plaintiffdoes 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. 3DISCUSSION We begin with defendant's substantive challenges to the court's subject-matter jurisdiction. It asserts that plaintiff fails to make a nonfrivolous allegation of any claim cognizable here. We agree. Defendant correctly points out thatplaintiffs claims for injuries as a result ofhis having to carry apager as well as his claims for emotional distress and mental anguish sound in tort and are thus beyond this court'sjurisdiction. 

### See 28 U.S.C. § 1491 (a)(l) (2012) (excepting from this court'sjurisdiction 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 exercisejurisdiction 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 ofPersonnel Management StandardNotification ofPersonnelActionForm (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 leftwith his BackPayActclaim. TheBackPayAct 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 ofthe 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 ofpay or benefits." 

### Collier v. United States, 379 F.3d 1330, 1333 (Fed. Cir. 2004). Plaintiffclaims that he was paid at a GS-5 level while he 4was really performing the duties ofa 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," UnitedStates v. Fausto, 484 U.S. 439, 454 (1988) (explainingthatjurisdictionunder the act is premised on an earlier determination ofan unwarranted personnel action). None ofthose entities has made the necessary initial determination that plaintiffsuffered an unwarranted personnel action, and this court is not independently authorized to do so. Because there has been no prior determination thatplaintiffsuffered an unwarranted reduction in pay, he is leftwith a bare claim for backpay, over which we do not havejurisdiction. We note finally thatplaintiffreferredto the FLSA in his complaintbut disavowed it as a basis for his claims. Consideringthat plaintiffis proceeding pro se and because the court would havejurisdiction 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-matterjurisdiction, and otherwise timely, we would be forced to dismiss it because, at the time this action was commenced, plaintiffhad pending in the district court an action arising out ofthe same facts. It offers the following analysis. Undersection 1631, thetransfer statute, whentheArizona district court determined that it lackedjurisdiction 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 ifit had been filed in

...the [Court ofFederal 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 ofthis remedial statute, to have been filed on May 31, 2013. The purpose ofthis statutorily required fiction is, ofcourse, remedial: to prevent litigants from suffering the consequences ofguessing wrong as to the proper forum for their claim and thenpossiblyrefiling in the correct court after the running ofthe 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 oftwo or more federal courts
... have subject matterjurisdiction 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 ofthe complexity ofthe federal court system and of specialjurisdictionalprovisions, a civil casemay on occasionbe mistakenly filed in a court
... that does not havejurisdiction. By the time the error is discovered, the statute oflimitations or a filing period may have expired. Moreover, additional expense is occasionedby havingto file the case anew in the proper court. 

### Id. at 30. Section 1631 thus seems intentioned to escortplaintiffs

### prosebarque to a safe harbor, without residual effects ofconfusion about misfiling. Atthis point, however, the governmentconjures 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 ofany claim for or in respect to which the plaintiff orhis assigneehas pendingin any other court any suit orprocess 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.

6the cause ofaction alleged in such suit orprocess arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority ofthe United States. 28 U.S.C. § 1500. The Federal Circuit in 

### United States v. County of Cook, 170 F.3d I084, 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, ofthe counts in the complaint filed there to the Court ofFederal Claims. While section 1631 had notyet been consistently interpreted to allow partial transfers, the circuit, emphasizing the remedial nature ofthe 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 ofthe 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 ofsection 1631 was that the complaints were filed simultaneously. Although itfound no precedentsquarely on point, it concluded that the policies behind section 1500 are promoted by precludingjurisdiction in the Court ofFederal 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 lacksjurisdiction.

. . . Section 1631 was clearly intended by Congress to remedy this problem through the simple mechanism ofatransfer to the court ofproperjurisdiction." 170 F.3d at 1089.

4 

### Cookwas decided beforethe SupremeCourt'sdecision in 

### Tohono 0 

### 'Odham, which removed the relief-sought prong ofthe test for overlap under section 1500. 

### Tohono O'Odham Nation v. United States, 563 U.S. 307, 315-16 (2011). 'Id. at I091. Withrespectto thepolicypurposes ofsection 1500, the court cited the CourtofClaims decision in 

### National CoredForgings v. UnitedStates, 132 (continued

...) 7Simultaneity can arise one oftwoways, however. A litigantcan choose to file in two courts at the same time (although that might be difficult today, given the precise electronic recordation offilings), or by operation ofsection 1631. The holding of Cook is that this distinction does not matter. The interest ofCongress in forcing an election by the plaintiffis satisfied. It is noteworthy that the Federal Circuit in Cook clarified that section 1500 is not implicatedwhen 

### all ofthe 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 ifthey 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 precludejurisdiction over the transferred claims

...
170 F.3d at 1091 n.8. The government also cites Griffin v. UnitedStates, 590 F.3d 1291 (Fed. Cir. 2009), a case in which the Federal Circuit affirmed dismissal ofa transfer complaint based on the operation ofsection 1500. As best we can determine from the factual recitationthere, the district courthad grantedjudgmentfor the United States on three of the original four counts and contemporaneously transferred the one remaining count to the COFC. Itappears that the transfer occurred after the entry of summary judgment, but it is not clear whether plaintiff appealed or otherwise challenged the grant of summaryjudgment. 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 suitin this court againstthe United States and one brought" in the district courts.), and UNR. Industries, Inc. v. UnitedStates, 962. F.2d 1013, 1018 (Fed. Cir. 1992)(purpose ofthe 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 ifthetime for filing a post-judgment motion or an appeal has not run. 

### Id. The government also cites an opinion ofthis 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 ofall claims was being considered by the Ninth Circuit. Judge Allegragranted amotionto dismiss, concludingthatthe non-transferred claims against the federal government were pending on the date ofthe deemed filing ofthe 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 Tohono 0 'Odham. 

### The logic behind Cook 

### and presumably Griffin 

### is that the plaintiffin a partial transfer situation is fundamentally in the same posture as a litigantwho commences one suitin districtcourt andthen commences asecondactionhere, 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 ofMr. Taylor's claims for lack of jurisdiction. Theremaining contractclaim,the districtcourtconcluded, also was not within itsjurisdiction, butthat claimwas 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" ofthis string ofcases is that section 1500 is abar here, despite the fact that the dismissal ofthe 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 ofinquiry is, by operation ofsection 1631, the date ofthe initial

6 Brandt 

### involved a direct filing in the Court ofFederal 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 nontransfened claimsfiled 

### in the district court, and ifso, were they based on the same operative facts. The answer to the first halfofthat 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, ofcourse, is that it is onlybecause ofthe operation ofsection 1631, a remedial statute designed to rescue litigants from understandable confusion aboutjurisdiction,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 relatingto procedure are given aliberal 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 ofa 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 ofany 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. 10For 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