NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-5052

MARSHALL KENNETH FLOWERS, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

Marshall K. Flowers , of Jacksonville, Florida, pro se. Meredyth D. Cohen Havasy , Trial Attorney, Commercia l Litigation Branch, Civil Division, United States D epartment of Justice, of Washington, DC, for defendantappellee. With her on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Brian M. Simkin , Assistant Director. Appealed from: United States Court of Federal Claims Judge Margaret M. Sweeney.NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-5052 MARSHALL KENNETH FLOWERS, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Appeal from the United States Court of Federal Claims in 05-CV-1163, Judge Margaret M. Sweeney

.

__________________________ DECIDED: November 5, 2008

__________________________ Before RADER, LINN, and MOORE, Circuit Judges

. PER CURIAM. Marshall K. Flowers (“Flowers”) appeals fr om final orders of the United States Court of Federal Claims denying his motion for discovery and granting the government’s motions pursuant to Rules 56 (su mmary judgment), 52. 1 (judgment on the administrative record), 12(b)(1) (lack of subj ect matter jurisdiction) , and 12(b)(6) (failure to state a claim) of the Rules of the United States Court of Federal Claims (“RCFC”). Flowers v. United States , 75 Fed. Cl. 615 (2007); Fl owers v. United States , 80 Fed. Cl. 201 (2008). Flowers also appea ls from the denial of his RCFC 40.1 motion to reassign the case to a different judge. Flowers v. United States , No. 05-1163C (Fed. Cl. Jan. 29, 2008) (“Recusal Opinion ”). For the following reasons, we affirm

.BACKGROUND On October 31, 2005, Flowers filed this acti on in the Court of Federal Claims. In an amended complaint dated June 27, 2006, Flowers sought relief on the following counts: (1) coercion into accepting nonjudicial punishment (“NJP”); (2) intimidation and violation of Army regulations; (3) violatio n of Fifth Amendment due process and liberty interests; (4) violation of Fifth Amendment ri ghts arising from the Army’s alleged seizure of savings bonds; (5) violation of a cont ractual agreement bythe United States Department of Treasury (“Treasury Department”) regarding the savings bonds; and (6) breach of contract for damage to household goods. In an order dated March 1, 2007, the Court of Federal Claims granted the gov ernment’s motion for summary judgment on Counts 5 and 6 of the amended complaint and deni ed Flowers’s motion for discovery. Flowers , 75 Fed. Cl. at 636. The remaining counts were dismissed on January 18, 2008. Flowers , 80 Fed. Cl. at 227. In particular , the Court of Feder al Claims found Counts 1-3 to contain interwoven tort, cons titutional, and statutory military pay claims, and disposed those claims as follows: judgm ent pursuant to RCFC 52.1 on all military pay claims; dismissal pursuant to RCFC 12(b)(1 ) of claims sounding in tort, alleging Fourth Amendment and Fifth Amendment due pr ocess and double jeopardy clause violations, or seeking removal of the Army ’s bar to reenlistment; and dismissal pursuant to RCFC 12(b)(6) of claims alleging ine ffective assistance of counsel, requesting correction of military records, or asserting a Fifth Amendm ent liberty interest. Id. Count 4 was dismissed pursuant to RCFC 12(b)(1). Id. On January 29, 2008, the Court of Federal Claims denied Fl owers’s RCFC 40.1 motion to reassign the case to a different judge. Recusal Opinion , slip op. at 7.

2008-5052 2Flowers appealed to this court. We hav e jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION A. Summary Judgment We review a grant of summary judgment by the Court of Federal Claims de novo. Suess v. United States , 535 F.3d 1348, 1359 (Fed. Cir. 2008). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a ma tter of law. RCFC 56(c). 1. Savings Bond Claim The Court of Federal Claims granted the government’s motion for summary judgment on Flowers’s saving s bond claim (Count 5), holdi ng that Flowers lacked standing because he is not the registered owner of the savi ngs bonds and that a prior federal suit filed by Flowers precludes him fr om relitigating this same issue. Flowers , 75 Fed. Cl. at 632. In the prior federal suit, the U.S. District C ourt for the District of Hawaii found that savings bonds val ued less than $10,000 were registered not to Flowers but to his adult daughters, and that this registration confers ownership to them, not him. Flowers v. Sec’y of the U.S. Dep’t of Treasury , No. CV-03-16 (D. Haw. Jun. 13, 2003), aff’d , 132 Fed. Appx. 728 (9th Cir. 2005). When Fl owers later brought the instant suit to recover savings bonds valued over $10,000, t he Court of Federal Cla ims similarly found that these bonds were regist ered in the names of his daughters and that the Treasury Department had already issued checks to t he daughters for their respective bonds. Flowers , 75 Fed. Cl. at 630. Be cause 31 C.F.R. § 353. 5(a) is a federal regulation that explicitly provides that “registration is conclusive of owner ship,” the Court of Federal

2008-5052 3Claims held that Flowers cannot rely on state law to establish ownership. Consequently, the Court of Federal Claims rejected Flower s’s argument that a prior state court’s default judgment against his daughters confers ownership to him. Indeed, at the time Flowers sued his daughters in state court to establish ownership, his complaint failed to disclose that the Treas ury Department had already made payment to the daughters on their respective bonds. Under principles of federal supremacy, the Court of Federal Claims held t hat 31 C.F.R. § 353.5( a), and not the state court’s default judgment, determines the bonds ’ ownership. Flowers , 75 Fed. Cl. at 631. On appeal, Flowers attempts to avoid the effect of federal preemption. He primarily relies on Bodek v. Department of Treasury , 532 F.2d 277 (2d Cir. 1976), for the proposition that ownership disputes between private parties are to be governed by state law rather than federal la w. In that case, decided pr ior to the promulgation of 31 C.F.R. § 353 (effective Januar y 1, 1980), the Second Circu it held that an ownership dispute between a son and his parents over U.S. savings bonds did not fall within the category of “loss, theft, destruction, mutilati on, or defacement” of t he applicable statute under which the Treasury Department wa s authorized to grant relief. Bodek , 532 F.2d at 280 (quoting 31 U.S.C. § 738(a )). Rather, the Second Circuit found that the parties’ quarrel, at that time, was a matter to be settl ed among themselves, eit her privately or in a state court. The implement ation of 31 C.F.R. § 353.5(a) in 1980 changed that. The federal regulation now provides, with limited exception, that “registration is conclusive of ownership.” Id. The only listed exception is for co rrection of registration errors, which are not at issue here. Id. § 353.49. Because there is no dispute that the savings bonds are registered to Flowers’s adult daughters, and bec ause 31 C.F.R. § 353.5(a) controls

2008-5052 4the question of ownership, the Court of Feder al Claims correctly found that the state default judgment was inapplicable. See also Flowers v. Sec’y of the U.S. Dep’t of the Treasury , 132 Fed. Appx. 728, 729 (9 th Cir. 2005) (“Flowers is not the registered owner and cannot, under principles of federal supremacy, rely on a contrary state court judgment to establish ownersh ip.”); Hardymon v. Miller , 718 F. Supp. 723, 725 (S.D. Ind. 1989) (holding that a c ontrary state court judgment cannot turn solely-owned savings bonds into probate assets in violation of 31 C.F.R. § 353.5(a)). 2. Shipment of Household Goods The Court of Federal Claims granted the government’s motion for summary judgment on Count 6, in which Flowers seeks to reco ver the value of his household goods that were lost or dam aged when the Army delivered those goods from Hawaii to Australia. The trial court f ound that Flowers had already re ceived $4,425 from the Army to replace the lost or damaged goods, and that a finality provision of the Military Personnel and Civilian Employees’ Claims Act (“MPCECA”) preclu des judicial review of the Army’s disallowance of any additional settlement. Flowers , 75 Fed. Cl. at 635 (noting that the MPCECA provides that settlement of a claim by the military is “final and conclusive”) (quoting 31 U.S.C. § 3721(k)). In addition, the trial court noted that the MPCECA is not a money-mandating statute; thus, the MPCECA does not create a substantive right that would al low the Court of Federal Claims to exercise jurisdiction under the Tucker Act. Flowers , 75 Fed. Cl. at 635 (stating t hat the Secretary’s authority under the MPCECA is discretionary becau se he “may,” but need not, settle claims) (quoting 31 U.S.C. § 3721(b)(1)).

2008-5052 5On appeal, Flowers does not address these major defects in his claim. Nor does he dispute the fact that he re ceived a $4,425 settlement for his household goods. That settlement is “final and conclusive” under 31 U.S.C. § 3721(k) and is not subject to judicial review. S hull v. United States , 228 Ct. Cl. 750 (1981) (holding that the term “final and conclusive” precludes judicial review of Army claims decisions). We therefore affirm the grant of summary judgment. B. Discovery Discovery orders in the Court of Feder al Claims are reviewed for abuse of discretion. Brubaker Amusement Co., Inc. v. United States , 304 F.3d 1349, 1356 (Fed. Cir. 2002). The trial court limit ed the scope of discovery to rebutting the government’s then-pending motion for summary judgment on Counts 5 and 6. Flowers sought to depose various military officials, Treasury D epartment officials, an d his two daughters. To support his discovery request, Flowers stat ed that he “intends to show that U.S. Saving [sic] Bonds were purchased by him [and] maintained in his possession until removed by a government person.” Flowers , 75 Fed. Cl. at 629 ( quoting Pl.’s Mot. 14). The trial court denied Flowers’s motion for di scovery, finding that no part of the motion was directed to the dispositive issue of ow nership and standing. Like his discovery motion, Flowers’s appellate brief is dire cted primarily to the government’s alleged seizure of his savings bonds, not the registered ownership of those bonds. Because ownership depends on the bonds’ registration, not their purchase or possession, 31 C.F.R. § 353.5(a), t he trial court did not abuse its di scretion in denying Flowers’s request to discover information wholly unr elated to the question of registration. C. Judgment on the Administrative Record

2008-5052 6We review the Court of Federal Claims’s factual determinations in a judgment on the administrative record for clear erro r and the court’s legal conclusions without deference. RCFC 52(a); Lewis v. United States , 458 F.3d 1372, 1376 (Fed. Cir. 2006). The trial court granted the government’s RC FC 52.1 motion on Fl owers’s Military Pay Act claim, under which Flowers alleges that he was coerced into accepting NJP and seeks pay that he would have received had he not involuntarily retired. The trial court found no merit in this claim, and neither do we. Flowers applied for and was granted voluntary retirement e ffective January 1, 2000, although that date was ultimately extended to January 31, 20 00. He was compensated through January 31, 2000, his last day of active duty. Flowers now seeks pa y exclusively for a period of time beyond that date. Bec ause Flowers was no longer a se rvice member after January 31, 2000, he is not entitled to relief under t he Military Pay Act, 37 U. S.C. § 204. See James v. Caldera , 159 F.3d 573, 581 (Fed. Cir. 1998) (“Once James’ term of enlistment ended, he no longer was entitled to pay under 37 U.S. C. § 204, because he was no longer a service member.”). The trial court also conclude d that Flowers failed to prov e that his retirement was involuntary. We agree. A decision to reti re is presumed voluntary. Carmichael v. United States , 298 F.3d 1367, 1372 (Fed. Cir. 2002). The presumption can be rebutted if Flowers demonstrates that: (1) he involunt arily accepted the terms of the government; (2) circumstances permitted no other alternat ive; and (3) those circumstances were the result of the government’s coercive acts. Id. Contrary to Flowers’s unsubstantiated allegations of coercion, the tr ial court made detailed findings of the circumstances of his decision to accept NJP, all tending to showthat the decision was voluntary. Flowers , 80

2008-5052 7Fed. Cl. at 219 (noting that Flowers was furnished with alternatives, consulted with counsel, and participated in setting favorable terms of his retirement). Flowers faced the prospect of a court -martial on numerous counts of larceny and a dishonorable discharge; he instead chose to accept NJP, an honorable di scharge, and retirement at full rank. Id. at 221. The most that can be said is that Flowers faced a choice between two unpleasant alternatives. But, as we have said, “a choice is not involuntary simply because an employee is faced with an inherent ly unpleasant situation or his choice is limited to two unpleasant alternativ es.” Terban v. Dep’t of Energy , 216 F.3d 1021, 1026 (Fed. Cir. 2000). D. Dismissal “We review the Court of Federal Claims ’s decision to dismiss for lack of jurisdiction and for failure to state a clai m without deference.” Ga llo v. United States , 529 F.3d 1345, 1348 (Fed. Cir. 2008). 1. Correction of Military Record The trial court dismissed pursuant to RCF C 12(b)(6) Flowers’s request to correct his military records, holding that it coul d not grant equitable relief under 28 U.S.C. § 1491(a)(2) because no money damages were owed for back pay. Flowers , 80 Fed. Cl. at 222 (“The court . . . may correct applic able records only ‘as an incident of and collateral to’ a judgment against the United States for money damages.”) (quoting 28 U.S.C. § 1491(a)(2)). Becaus e we have affirmed, supra , the trial court’s judgment on the administrative record of Flowers’s militar y pay claim, to which equitable relief might conceivably have been tied, we likewise affirm its holding that the absence of money damages in this case divests the court of its ability to grant equitable relief. See James

2008-5052 8v. Caldera , 159 F.3d 573, 580 (Fed. Cir. 1998) (“Sta ted another way, the Court of Federal Claims has no power ‘to grant affirmative non-monetar y relief unless it is tied and subordinate to a money judgment.’ ”) (quoting Austin v. United States , 206 Ct. Cl. 719, 723 (1975)). 2. Tort Claims The trial court dismissed pursuant to RCF C 12(b)(1) all claims sounding in tort. Those claims included alle gations that the Army engaged in various criminal and tortious acts, as well as racial discrimination. The court f ound that it lacked jurisdiction to hear such claims. Accepting as true all of Flowers’s allegations of fact, we agree with the Court of Federal Claims that those cl aims fall outside of the court’s limited jurisdiction. See Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“The plain la nguage of the Tucker Act excl udes from the Court of Federal Claims jurisdiction claims soundi ng in tort.”); Joshua v. United States , 17 F.3d 378, 379 (Fed. Cir. 1994) (stating that the Court of Federal Claims “has no jurisdiction to adjudicate any claims whatsoever under the feder al criminal code”). To whatever extent Flowers may be asserting his di scrimination claims under Title VII of the Civil Rights Act, the Court of Federal Claim s similarly lacks jurisdiction over them. 28 U.S.C. § 1343(a) (vesting original jurisdiction ex clusively in “district courts”). 3. Fourth and Fifth Amendment Claims Flowers has alleged Fourth Amendment violations, as well as Fifth Amendment Takings, Due Process, and Double Jeopardy Clause violations. Those claims were dismissed pursuant to RCFC 12(b )(1). Flowers also asserted a Fifth Amendment liberty

2008-5052 9interest in his military employment. That claim was dismissed pursuant to RCFC 12(b)(6). We see no error in the trial court’s dismis sal of these claims. Jurisdiction in the Court of Federal Claims is limited under t he Tucker Act to those claims based on “a separate money-mandating constitu tional provision, statute, orregulation, the violation of which supports a claim for damages against the United States.” James , 159 F.3d at 580. The Fourth Amendment does not mandate the payment of money ; therefore, the Court of Federal Claims lacks jurisdiction over any alleged search and seizure violation. Brown v. United States , 105 F.3d 621, 623 (Fed. Cir. 1997) (“Because monetary damages are not available for a Fourth Amendment violati on, the Court of Federal Claims does not have jurisd iction over . . . such a violation. ”). The same is true of Fifth Amendment Due Process and Double Jeopardy Clause violations. James , 159 F.3d at 581 (“[T]he Court of Federal Cl aims lacks jurisdiction over [due process and double jeopardy] claims because neitherof the two clauses is a money-mandating provision.”). Flowers’s appellate brief addresses only the takings claim. He contends that he should have been given leave to allege additional facts to establish the necessary cause of action. This takings claim (Count 4), however, is merely a Fifth Amendment variant of his breach of contract claim (Count 5), on which he lost for failure to establish ownership of the savings bonds. This lack of ownership is similarly fatal to Flowers’s takings claim. See Cienega Gardens v. United States , 331 F.3d 1319, 1328 (Fed. Cir. 2003) (“For any Fifth Amendment takings claim, the complaining par ty must show it owned a distinct property intere st at the time it was all egedly taken, even for regulatory takings.”); Wyatt v. United States , 271 F.3d 1090, 1096 (Fed. Cir. 2001) (“It is axiomatic

2008-5052 10that only persons with a valid property interest at the time of the taking are entitled to compensation.”). As previous ly mentioned, it is undisputed that the savings bonds were registered in the names of Fl owers’s adult daughters at the time of the alleged taking. Because “registration is conclusive of owner ship” under 31 C.F.R. § 353.5(a), we agree that Flowers’s takings claim should be dismissed. Nor did the Court of Federal Claims err in declining to transfer the takings claim to a district court pursuant to 28 U.S.C. § 1631, which authorizes transfer “in the interest of justice” only to a court “in which the acti on . . . could have been br ought at the time it was filed.” The issue of ownership has been repeatedly litigated. The U.S. District Court for the District of Hawaii found that Fl owers has no ownership interest in the savings bonds valued less than $10,000. Flow ers v. Sec’y of the U.S. Dep’t of the Treasury , No. CV-03-16 (D. Haw. Jun. 13, 2003), aff’d , 132 Fed. Appx. 728 (9th Cir. 2005). The Court of Federal Claims reached t he same conclusion for bonds exceeding $10,000 in value. We therefor e reject the argument that th is claim should now be heard again in a district court. E. Recusal The trial judge denied Flower s’s RCFC 40.1 motion to reassign the case to a different judge and also declined recusal pursuant to 28 U.S.C. § 455. Recusal Opinion , slip op. at 1. Flowers’s unsubstantia ted allegations of bias and prejudice amount to nothing more than mere displeasur e with the court’s rulings dismissing his meritless claims. As the Supreme Court has stated, however, “judicial rulings alone almost never constitute a vali d basis for a bias or partialit y motion.” Liteky v. United States , 510 U.S. 540, 555 (1994). Because Flower s points to no “extrajudicial source”

2008-5052 112008-5052 12 of the alleged bias or prejudi ce, he must prove that the j udicial opinions or remarks “display a deep-seated favoritism or ant agonism that would make fair judgment impossible.” Id. No such inference can be drawn here. Nothing in the record suggests that Judge Sweeney’s conduct of the proceedings was anyth ing other than evenhanded and professional. Mindful of the court’s duty to hold pro se plaintiffs to “less stringent standards than litigan ts represented by counsel,” Flowers , 80 Fed. Cl. at 209 (citing Haines v. Kerner , 404 U.S. 519, 520 (1972)), Judge Sw eeney excused Flowers’s failure to address his takings claim in opposition to the government’s motion to dismiss, Flowers , 80 Fed. Cl. at 225 n.14 , and entertained a Fourth Amendment argument raised for the first time in his reply brief, id. at 214 n.11. These charit able acts certainly do not evidence a deep-seated favoritism for the gove rnment or antagonism against Flowers. Indeed, on several occasions, Judge Sweeney w ent out of her way to direct both the government and the Clerk of th e Court to provide Flowers with courtesy copies of all court filings, even as Flowers submitted overten notices changing his address during the course of the litigat ion. Recusal Opinion , slip op. at 3 n.5. Though Flowers argues prejudice due to some “missing administr ative records,” Judge Sweeney granted Flowers leave to supplement the record wi th precisely those documents he now says are missing. Id. at 2 n.4. Rather than evidencing bias or prejudice, the record shows that the trial court gave Flowers a fairopportunity to present his case. CONCLUSION The judgment of the Court of Federal Claims is affirmed in all respects.