      3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaitn5FI LED
                                        No. 16-1579C
                                 (Filed December 29, 2017)                      DEC 2 9 2017
                                 NOT FOR PUBLICATION                           U.S. COURT OF
                                                                              FEDERAL CLAIMS

* * * * * * * * * * * * * * * * * *
                                          *
FERRELL ODEN,                             *
                                          *
                    Plaintiff,            *
                                          *
      v.                                  *
                                          *
THE UNITED STATES,                        *
                                          *
                    Defendant.            *
                                          *
* * * * * * * * * * * * * * * * * *


                    MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Pending before the court is defendant's motion to dismiss the first amended
complaint for lack of subject-matter jurisdiction and failure to state a claim upon
which relief may be granted, under Rules 12(b)(l) and 12(b)(6) of the Rules of the
United States Court of Federal Claims (RCFC), as well as plaintiff's motion to
strike defendant's motion under RCFC 12(f). For the reasons set forth below, the
Court finds that it lacks jurisdiction over plaintiff's claims. Defendant's motion to
dismiss the complaint is GRANTED, and plaintiff's motion to strike the
government's motion is DENIED.


                                   I. BACKGROUND

       In the spring of 2008, Ferrell Oden sought financing to purchase property to
operate a catfish and livestock farm. Am. Compl. irif 13- 15. 1 His loan application
to the Peoples Bank of Greensboro was rejected, so he applied to the U. S.

1 The number 13 is repeated in the paragraph numbering; this citation refers to the
second paragraph numbered 13.




                                                             7017 1450 DODO 1346 0416
Department of Agriculture's (USDA) Farm Service Agency (FSA) for funding. Id.
ilif 16-17. He was denied the funding on the grounds that he did not have enough
managerial experience. Am. Compl. if 19. Plaintiff appealed the denial to the
USDA Appeals Division, alleging that the denial was racially-motivated. Id. ilil 16,
19. The Appeals Division concluded that the denial was "erroneous" because
plaintiff had demonstrated the requisite managerial experience. Id. if 21. But the
loan service officers intentionally delayed notifying plaintiff that his loan
application had been approved, allowing another buyer to purchase the property.
Id. ilil 22, 25-28.

       Plaintiff sued the Secretary of Agriculture, the Peoples Bank of Greensboro,
and others involved in the denial of the loan application in the District Court for the
Southern District of Alabama on April 30, 2010. Def.'s App. at 26; see Oden v.
Vilsach, No. 10-00212-KD-M, 2013 WL 4046456 (S.D. Ala. Aug. 9, 2013). He alleged
that they discriminated against him based on his race in denying him the loan and
that this violated the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. Am.
Compl. if 16. 2 The Southern District of Alabama entered judgment for plaintiff.
Def.'s App. at 37. Plaintiff appealed the damages determination to the Eleventh
Circuit, and while the appeal was pending, on May 7, 2015 the parties reached a
settlement agreement, pursuant to which the federal government was to pay
plaintiff $475,033.46. Am. Compl., Ex. 3-1 ir 2.

       Plaintiff then brought suit with four other individuals, proceeding pro se, in
the District Court for the Middle District of Alabama on August 11, 2016, claiming
that then-Secretary of Agriculture Thomas J. Vilsack violated the Administrative
Procedure Act, 5 U.S.C. § 702, by failing to provide them with hearings on the
merits of their respective cases. Binion v. USDA, Compl., No. 2:16-cv-00657-WKW-
SRW (M.D. Ala. Aug. 11, 2016). Those five plaintiffs filed an amended complaint on
November 17, 2016. Def.'s App. at 43-62. Mister Oden then filed his prose
complaint in this court, on November 28, 2016. See Compl. On September 28, 2017,
the district court case was dismissed without prejudice. See Binion v. USDA, No.
2:16-cv-00657-WKW-SRW (M.D. Ala. Sept. 28, 2017).

      On January 18, 2017, plaintiff filed a motion to amend his complaint to
include certain pages he had initially omitted. Pl's Mot. for Leave to File First Am.
Compl. That motion was granted five days later. Order (Jan. 23, 2017). The
government's response to the initial complaint had been due on January 27, 2017,
and under our rules the response to the amended complaint was due February 6,
2017, see RCFC 6(a)(l)(C), 6(d), 15(a)(3). But on the new response date, Mr. Oden


2 On May, 9, 2011, the District Court granted Mr. Oden's request to dismiss his
claims against all the non-federal defendants. Oden v. Vilsach, No. 10-00212-KD-M,
(S.D. Ala. May. 9, 2011).

                                         -2-
served and filed a motion to amend his first amended complaint, to include certain
exhibits which he had inadvertently omitted. See Mot. Suppl. First Am. Pet., ECF
No. 6 (Mot. Suppl.). On March 10, 2017, the Court granted that motion. Order
(Mar. 10, 2017). Two weeks thereafter, the government filed its motion to dismiss
the complaint. Def.'s Mot. to Dismiss (Def.'s Mot.). On April 7, 2017, plaintiff filed
his opposition to the government's motion and moved to strike that motion. Mot. to
Strike, ECF No. 9 (Pl.'s Mot.) In his motion to strike, Mr. Oden contended that the
government's response to his complaint was not timely under the court's rules. Id.
at 1. On April 24, 2017, the government filed a paper combining its response to the
motion to strike with the reply in support of its motion to dismiss the complaint.
Def.'s Combined Reply, ECF No. 10 (Def.'s Reply). In that response, the
government conceded that its response to the amended complaint was untimely, but
argued that the interests of justice would not be served by striking its motion. Id.
at 6-7. On October 10, 2017, plaintiff filed a reply in support of his motion to strike
the defendant's motion to dismiss the complaint. (Pl.'s Reply). The Court has
concluded that oral argument is unnecessary in this matter, and this opinion issues.

                                  II. DISCUSSION

A. Standard of Review

       Under RCFC 12(b)(l), claims brought before this court must be dismissed
when it is shown that the court lacks jurisdiction over their subject matter. When
considering a motion to dismiss a case for lack of subject-matter jurisdiction, courts
will normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics, Inc., 291F.3d1324, 1326
(Fed. Cir. 2002); CBY Design Builders v. United States, 105 Fed. Cl. 303, 325 (2012).

      While a prose plaintiff's filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside the court's jurisdiction from being dismissed, see Henke v. United States, 60
F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction bears the
burden of establishing it, and must ultimately do so by a preponderance of the
evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); Rocovich v. United States, 933
F.2d 991, 993 (Fed. Cir. 1991).

       But even claims that would normally be within our subject-matter
jurisdiction may nevertheless be outside of it when brought to our court, as
Congress has mandated that our court "shall not have jurisdiction of any claim for
or in respect to which the plaintiff ... has pending in any other court any suit or
process against the United States .... " 28 U.S.C. § 1500. Two lawsuits are "for or
in respect to the same claim ... if they are based on substantially the same


                                         -3-
operative facts, regardless of the relief sought in each suit." United States v. Tohono
O'Odham Nation, 563 U.S. 307, 317 (2011).

       When deciding a 12(b)(6) motion, a court similarly assumes all factual
allegations to be true and reasonably infers facts in favor of the non-moving party.
Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001). The
complaint must allege facts that, taken as true, "state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         A claim is barred from being re-adjudicated under the doctrine of res judicata
if: (1) "there is identity of parties (or their privies)"; (2) "there has been an earlier
final judgment on the merits of a claim"; and (3) "the second claim is based on the
same set of transactional facts as the first." Int'l Air Response v. United States, 302
F.3d 1363, 1367 (Fed. Cir. 2002) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322,
326 n.5 (1979)).

B. Analysis

       The government has moved to dismiss plaintiff's complaint on both
jurisdictional and non-jurisdictional grounds. The jurisdictional ground is that
plaintiff had nearly identical claims pending before the Middle District of Alabama
at the time the complaint was filed in our court, barring this case under 28 U.S.C.
§ 1500. Def.'s Mot. at 1. The other grounds are failure to allege the elements of a
contract, and res judicata. Id. at 10-13. Because the Court concludes that the
government's jurisdictional argument is correct, the government's non-jurisdictional
grounds will not be addressed. Plaintiff has also moved to strike the motion to
dismiss his case, contending that the government failed to file it in a timely
manner. Pl.'s Mot. at 1. The Court will address Mr. Oden's motion first, and then
the government's.

      1. Defendant's Response to the Complaint was Timely

       Under our court's rules, a response to a complaint against the United States
is due within 60 days of service. RCFC 12(a)(l)(A). Plaintiff filed his complaint on
November 28, 2016 and on January 18, 2017---before the government was required
to respond to that complaint---plaintiff filed a motion to amend his complaint. A
motion was unnecessary, as our rules allowed amendment "once as a matter of
course" at that stage of proceedings. RCFC 15(a)(l)(B). But because the submission
was styled as a motion, the Court clarified matters by granting the motion on
January 23, 2017. Under our rules, the government had 14 days to respond to that
amended complaint, RCFC 15(a)(3), plus an additional 3 days because service was
by mail, RCFC 6(d), and two more days because the due date fell on a Saturday,
RCFC 6(a)(l)(C).

                                          -4-
       But on February 6, 2017, the date that the government's response to the
amended complaint was due, plaintiff served and filed a motion to further amend
the complaint with exhibits that had been accidentally omitted. See Mot. Suppl. at
1. Since Mr. Oden had already used his obligatory amendment, a motion was
required to correct this mistaken omission. After it became clear that the
government was not opposing the motion to further amend the complaint, the Court
granted it on March 10, 2017. The government filed its motion to dismiss the
amended complaint 14 days later. Def.'s Mot. at 1. Plaintiff maintains that this
response should be stricken as untimely, insisting that the applicable deadline
remained February 6, 2017. Pl.'s Mot. at 1. But before that deadline had passed,
plaintiff moved to further amend the complaint, which necessarily had the result of
resetting the deadline. The question before the Court is what this new deadline
was.

        Since Mr. Oden's second amendment was sought after the deadline for
responding to the original complaint, under our rules the response to the resulting,
amended complaint was due "within 14 days after service of the amended pleading.''
RCFC 15(a)(3). As the Court suggested earlier, see Order (Aug. 25, 2017) at 1-2,
under these circumstances "service of the amended pleading" cannot be equated
with service of the motion for leave to file the pleading. At the time when the
motion for leave is filed, the amendment is merely proposed, and it is more
appropriate to consider service to occur once the Court provides leave for the
amendment to be filed. Upon granting leave, the Court could have required
plaintiff to re-submit the exhibits for filing, but this was dispensed with for the
convenience of the plaintiff. Accordingly, the Court holds that when leave is
required for the filing of an amended pleading, the effective service date of the
amended pleading is the date leave to file is granted. Under this rule, the
government's motion to dismiss the case was timely filed and thus plaintiff's motion
to strike it is DENIED. Moreover, even were defendant's motion to be stricken, the
Court would still be obligated to resolve the question of subject-matter jurisdiction
that the motion had raised. See RCFC 12(h)(3) ("If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.''). 3

      2. Plaintiff's Claims Were Not within Our Siibject-Matter Jurisdiction

       The text on pages eight through twelve of Mr. Oden's amended complaint is
word-for-word identical to the allegations concerning Mr. Oden contained on pages
ten through fifteen of the complaint that was pending before the Middle District of


3 The Court further notes that although the government concludes that the
response deadline was missed under its own interpretation of our rules, see Def.'s
Reply at 6-7, such a question of law may not be dictated by the concession of a
party, see LaForte v. Horner, 833 F.2d 977, 982 (Fed. Cir. 1987).
                                        -5-
Alabama at the time his complaint was filed here. Compare Am. Compl. 8-12 with
Def.'s App. at 52-57. In both complaints, Mr. Oden contends that the breach of
contract claims he included in the lawsuit he filed in the Southern District of
Alabama in 2010 sought more than $10,000 and thus could not have been part of
the settlement agreement. See Am. Compl. at 8; Def.'s App. at 52-53. And
although the relief sought no longer matters for section 1500 analysis, see Tohono
O'Odham, 563 U.S. at 317, in both complaints Mr. Oden requests that an
Administrative Law Judge at USDA be ordered to adjudicate those contract claims,
see Am. Compl. at 12; Def.'s App. at 56.4

       Plaintiff argues that the Federal Circuit has left open the possibility that a
claim that had been determined by a district court to be beyond the latter's
jurisdiction may be ignored for purposes of applying section 1500. Pl.'s Reply at 2-3
(citing Brandt v. United States, 710 F.3d 1369, 1380 n.9 (Fed. Cir. 2013)). But that
question concerned claims which were dismissed for lack of jurisdiction before the
corresponding complaint was filed in our court, which was not the situation here. It
cannot be disputed that the operative facts in this case and in Mr. Oden's portion of
the case in the Middle District of Alabama are identical, and the district court
action was pending at the time Mr. Oden filed his complaint in our court. Section
1500 requires that this case be dismissed for lack of subject-matter jurisdiction. 28
U.S.C. § 1500; see Tohono O'Odham, 563 U.S. at 317. Because plaintiff's complaint
is beyond our jurisdiction, defendant's arguments under RCFC 12(b)(6) concerning
res judicata and the lack of substantive allegations regarding contract elements
need not be reached.

                                III. CONCLUSION

    For the foregoing reasons, defendant's motion to dismiss this case is hereby
GRANTED. The Clerk is directed to close the case. 5




4 As the government correctly points out, see Def.'s Mot. at 9, our court does not
have the power to grant equitable relief such as specific performance. See Quinault
Allottee Ass'n v. United States, 197 Ct. Cl. 134, 138 n.1 (1972).

5 With the district court action having been since dismissed, the jurisdictional
defect with plaintiff's complaint has been cured, and he would not be barred from
re-filing his complaint. But see supra. n.4.
                                        -6-
J




    IT IS SO ORDERED.




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