INA 

lf n tbe Wniteb ~tates Qeourt of jf eberal Qelaitns 

No. 16-28C 

(Filed: October 19, 2016) FILED 

OCT 1 9 2016 

U.S. COURT OF 

FEDERAL CLAIMS 

* * * * * * * * * * * * * * * * * * * * * * * * * * 

ROBERT L. TAYLOR, 

Plaintiff, 

V. 

THE UNITED ST ATES, 

Defendant. 

* * * * * * * * * * * * * * * * * * * * * * * * * * 

Robert L. Taylor, Honolulu, HI, prose. 

Jurisdiction; Transfer 

pursuant to 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 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. PostTraumatic 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 nonfrivolous 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 

of jurisdiction. 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 nontransfened 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