# 0 G NAL 3Jn tbe Wniteb**~tates** 

# q[:ourt ofjf 

# eberal q[:Jaitns No. 16-1655C (Filed: April 28, 2017) (NOT TO BEPUBLISHED) 

# FILED APR 2 82017 U.S

. COURT OF FEDERAL CLAIMS 

### **************************** ****** ) PATRICIA GARTH, ) ) 

### Plaintiff, ) ) v. ) ) UNITED STA TES, ) ) 

### Defendant. ) ) 

### **********************************
Patricia Ga1th,pro 

### se, Washington, D.C. Delisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C. , for defendant. With her onthe briefs were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr. , Director, and ElizabethM

. Hosford, Assistant Director, Commercial Litigation Branch, Civil Division, United States Depaitment ofJustice, Washington, D.C

. Ofcounsel was ShannaL. Cronin, Major, Judge Advocate General's Corps, Litigation Division

- Military Personnel Law, Department ofthe Army.
OPINION AND ORDER LETTOW, Judge

. Plaintiff, Patricia Garth, seeks monetary and injunctive reliefagainst the United States ("the government"), acting through the United States Army ("Army"), for a variety ofalleged actions adverse to her. Ms. Garth served inthe Army from March 4, 1990 until her retirement on June 30, 2010. Def .'s Rule 12(b)(l) Mot. to Dismiss ("Def.'s Mot."), Attach., ECF No

. 5. Upon retirement she was honorably discharged from service. 

### Id.
In her complaint, Ms. Ga1th alleges 15 counts against the government for "alienation of affection," "attempted murder," "assault," "neglectand torture," "vaccine," "illegal experimentation," "ra pe," "murder and attempted murder," "carpal tunnel," "migraines," "denial ofofficer candidate school," "foot injury," "denial ofapproved assignments," "withholding of pay benefits," "denial ofdeserving promotion," "incorrect DD214," "withholding ofmedical



### 7014 1200 DODO 9093 7634treatment," "discrimination," and "misc/other." 

### See Comp!. at 3-13. Pending before the court are the government's motion to dismiss Ms. GaTth's complaint for lack ofsubject matter jurisdiction pursuant to Rule 12(b)(l) ofthe Rules ofthe Court ofFederal Claims ("RCFC"), and Ms. Garth's motion to transfer the case to the United States Bankruptcy Court for the District of Columbia, ECF No. 6. Both motions are ready for disposition.
ST ANDARDS FOR DECISION As plaintiff, Ms. Garth has the burden ofestablishingjurisdiction. 

### See Reynolds v. Army & 

### Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). 1 The Tucker Act provides this court withjurisdiction over "any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). Nonetheless, the Tucker Act does not provide a plaintiffwith any substantive rights. 

### UnitedStates v. Testan, 424 U.S. 392, 398 (1976). To perfectjurisdiction under the Tucker Act, "aplaintiffmust identify a separate source ofsubstantive law that creates the right to money damages." 

### Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing 

### United States v. Mitchell, 463 U.S. 206, 216 (1983); 

### Testan, 424 U.S. at 398). Ordinarily, "[i]fa comt lacksjurisdiction to decide the merits ofa case, dismissal is required as a matter oflaw." 

### Gray v. UnitedStates, 69 Fed. Cl. 95, 98 (2005) (citing 

### Exparte McCardle, 74 U.S. 506, 514 (1868); 

### Thoen v. UnitedStates, 765 F.2d 1110, 1116 (Fed. Cir. 1985)). In some circumstances, however, where another federal court would havejurisdiction, transfer may be an option. 

### Gray, 69 Fed. Cl. at 98. Pursuant to 28 U.S.C. § 1631, ifa "court finds that there is a want of jurisdiction, the comt shall, ifit is in the interest of justice, transfer [the] action

... to any other such court in which the action

... could have been brought at the time it was filed." In effect, three prerequisites exist for transferring a case: "(l) the transferor court lacksjurisdiction; (2) the action could have been brought in the transferee court at the time itwas filed; and (3) transfer is in the interest of justice." 

### Zoltek Corp. v. UnitedStates, 672 F.3d 1309, 1314 (Fed. Cir. 2012) (en bane) (citing 28 U.S.C. § 1631).
ANALYSIS 

### A. Motion to Dismiss
Ms. Garth states multiple claims oftortious and criminal conduct. 

### See Comp!. at 3-13. The Tucker Act explicitly states that this court does not havejurisdiction over allegations that sound in tort. 28 U.S.C. § 1491(a)(l); 

### Rick's Mushroom Serv., Inc. v. UnitedStates, 521 F.3d

1 Ms. Gatth has appeared

### pro se, and the submissions ofsuch litigants are traditionally held to "less stringent standards than formal pleadings drafted by lawyers." 

### Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

### Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). "This latitude, however, does not relieve a

### pro se plaintifffrom meetingjurisdictional requirements." 

### Bernard v. United States, 59 Fed. Cl. 497, 499, 

### ajj"d, 98 Fed. Appx. 860 (Fed. Cir. 2004) (per curiam); 

### see also Henke v. UnitedStates, 60 F.3d 795, 799 (Fed. Cir. 1995).

21338, 1343 (Fed. Cir. 2008). Similarly, the court'sjurisdiction does not extend to Ms. Garth's criminal claims. 

### Joshua v. UnitedStates, 17 F.3d 378, 379 (Fed. Cir. 1994) ("The court has no jurisdiction to adjudicate any claims whatsoever under the federal criminal code.").
Ms. Garth also makes claims that could be construed as arising out ofher service in the Army. 

### See, e.g., Comp!. at 8-10 (stating claims relating to "denial ofofficer candidate school," "denial ofapproved assignments," "withholding ofpay benefits," and "denial ofdeserving promotion"). In her complaint respecting these claims, she has not identified any substantive money-mandating source oflaw that would entitle her to reliefunder the Tucker Act. Claimants may not solely rely on the Tucker Act to bring claims in this court; rather, they must identify an independent source oflaw that "can fairly be interpreted as mandating compensation by the [fjederal [g]overnment for the damage sustained." 

### Testan, 424 U.S. at 400 (internal quotation marks and citations omitted). Ms. Garth has not made this showing, and thus has failed to establish the court'sjurisdiction over the claims relating to her Army service.
Even ifMs. Garth had identified a money-mandating source oflaw for her claims stemming from her military service, these claims are barred by the statute oflimitations. "Every claim ofwhich the United States Court ofFederal Claims hasjurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. This statute oflimitations isjurisdictional and carmot be tolled for equitable reasons. 

### John R. Sand & 

### Gravel Co. v. 

### United States, 552 U.S. 130, 133-34 (2008). Claims for back pay and related reliefthat arise outofmilitary service are deemed to accrue upon the plaintiffs discharge or separation from the military. 

### See Martinez 

### v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003); 

### Schnell 

### v. United States, 115 Fed. Cl. 102, 105 (2014). Ms. Garth was discharged from the military upon her retirement on June 30, 2010, 

### see Def.'s Mot., Attach., giving her six years from that date within which to file claims related to her military service, 

### i.e., until June 30, 2016. As Ms. Garth filed her complaint on December 30, 2016, more than six years after her separation from the Army, any claims related to her service are barred by the statute oflimitations. Ultimately, none ofMs. Garth's allegations and claims are within thejurisdiction ofthis court. For this reason, the government's motion to dismiss Ms. Garth's complaint is granted. B. 

### Motion to Transfer to Bankruptcy Court
Ms. Garth has also filed a motion to transfer her suit to the United States Bankruptcy Courtfor the Dis!l'ict ofColumbia ("the Bankruptcy Court"), which the government opposes. 

### See Pl.'s Mot. to Transfer; Def.'s Opp'nto Pl.'s Mot. to Transfer, ECF No. 8. In ruling on a motion to transfer, the court must weigh whether the case satisfies the three prerequisites of28 U.S.C. § 1631. The first factor- "the transferor court lacksjurisdiction" -is readily satisfied in this instance, for the reasons discussed 

### supra. See Zoltek, 672 F.3d at 1314.
Ms. Garth's motion falters on the second requirement that "the action could have been brought in the transferee court at the time it was filed." 

### Zoltek, 672 F.3d at 1314. Bankruptcy courts havejurisdiction over voluntary suits brought by individuals or entities who qualify as debtors under 11 U.S.C. § 109. 

### See 11 U.S.C. § 30l(a). Based on the allegations in her complaint, Ms. Garth does not qualify as a debtor seeking to discharge personal liability for



### 3certain debts. Rather, as explained 

### supra, her claims allege t01tious conduct, criminal acts, and the denial ofmilitaty benefits. These claims are not within thejurisdiction ofthe Bankruptcy Court, and thus could not have beenbrought there at the time plaintifffiled suit in this court. Ms. Garth's claims also fail to satisfy the third criterion, 

### i.e., that the "transfer [be] in the interest of justice." 

### Zoltek, 672 F.3d at 1314. A transfer is not "inthe interest of justice" where the allegations contained in the complaint fail to state a claim on the merits. 

### See Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) ("The phrase 'ifit is in the interest of justice' relates to claims which are nonfrivolous and as such should be decided on the merits.") (citing 

### Zinger Constr. Co. v. UnitedStates, 753 F.2d 1053, 1055 (Fed. Cir. 1985)); 

### Faulkner v. UnitedStates, 43 Fed. Cl. 54, 56 (1999) ("Ifsuch transfer 'would nevertheless be futile given the weakness ofplaintiffs case on the merits,' the deciding court may decline to transfer the case and dismiss it.") (quoting 

### Siegal v. UnitedStates, 38 Fed. Cl. 386, 390-91 (1997)). Ms. Gatth's claims are devoid ofany factual support; she has merely made general asse1tions ofwrongdoing by the government, which do not constitute a basis for relief. As a result, no district court, let alone the Bankruptcy Court to which plaintiffrequests her case be transferred, could exercisejurisdiction over her claims. 

### See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that a complaint "does not require 'detailed factual allegations,"' but must put forward more than "'naked assertion[s]' devoid of 'further factual enhancement,"' or "thedefendant-unlawfully-harmed-me-accusation[s].")(quoting

### BellAt!. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). CONCLUSION
Forthe reasons stated, the government's motion to dismiss Ms. Gatth's complaint is GRANTED, and Ms. Garth's motion to transfer the case to the United States Bankruptcy Court for the District ofColumbia is DENIED.2 The clerk shall enterjudgment in accord with this disposition.
No costs. It is so ORDERED.

# ~ Charles F. Lettow Judge

2Ms. Garth's motion to receive future comt correspondence by e-mail, ECF No. 9, is DENIED as moot. 

### 4