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                                                                                                              No. l7-1618C

                                                                                           (Filed: February            15, 2018)
                                                                                                                                             FILED
                                                                                     (NOT TO BE PUBLISHED)
                                                                                                                                            FEB   |   5   2018
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                                                                                                                                           U.S, COURT OF
                                                                                                                                          FEDEML CLAIMS
FRANKM. BAFFORD,

                                                                  Plaintiff,



UNITED STATES,

                                                                  Defendant.

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                      Frank M. Bafford, pro se, Thonotosassa, FL.

         Erin K. Murdock-Park, Trial Attorney, commercial Litigation Branch, civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the motion
were Chad A. Readler, Acting Assistant Attomey General, Civil Division, Robert E. Kirschman,
Jr., Director, and Deborah A. Bynum, Assistant Director, commercial Litigation Branch, civil
Division, United States Department of Justice, Washington, D.C.

                                                                                           OPINION AND ORDER

LETTOW, Judge.

       plaintiff, Frank Bafford, brings suit against the United States alleging a breach of contract
by the Department of Housing and Urban Development ("HUD").r The crux of his claim is that
hL was wrongfully prevented from making payments on a mortgage of his home and forestalled
from defending against the resulting foreclosure, that HUD has assumed the defaulted mortgage
from the lender, and that the United States is liable to Mr' Bafford for damages'

         The govcrnment has moved to dismiss Mr. Bafford's complaint. Def.'s Mot. to Dismiss
(.,Def.'s Mot."), ECF No. 7. Mr. Bafford filed a Motion to Declare Transfer Void, ECF No. 9, to
which thc government responded with a motion to stay its response pending the court's
resolution of the motion to dismiss, ECF No. l0'

                       rThe court granted Mr. Bafford's motion to proceed informa pauperis on January 4,
2018.




                                                                            ?nl,b 3010 0000 q30B                             '+0q1
                                         BACKGROUND

         Mr. Bafford has previously filed a number of cases in this court and in state and other
federal courts relating to the same operative facts stated in his present complaint. See' e.g,
Baffurclv. UnitedStates,No. 1l-546C,2012WL1197139 (Fed. Cl. Apr.5'2012); Compl. Exs.
at 3 (order striking Mr. Bafford's pleadings in the mortgage foreclosure action, Midfirst Bankv.
True Shepherd Bible Church, 1nc., No. 29-2009-CA-023286 (Fla. l3th Jud. Cir. Ct. July 1 1 ,
201 1));2 Compl. Exs. at 4-7 (documents relating to a subsequent suit Mr. Bafford brought against
Midfirst Bank, the lender on the foreclosed mortgage, Bafford v Midfirst Bank'No. 1 I -CA-
016597 (Fla. 13th Jud. Cir. Ct. Aug. 14,2014), aff'd,No.2D12-4621 (Fla. 2d Dist. Ct. App.
Aug. 14, 2015)). Mr. Bafford also attached copies of orders relating to a suit he filed against
Township Apartments Assocs., Ltd., but does not indicate why he believes those documents
relate to his breach of contract claims arising out of the mortgage dispute with Midfirst Bank.l

         In his case before this court in 2012, Mr. Bafford argued that the United States was
answerable in damages for alleged wrongdoing associated with foreclosure ofhis house.
Bafford,2012wL 1197139, at *1. He also attacked a judgment in the Township Apartments
      ,,on the grounds that the district court lacked jurisdiction to enterjudgment and award
"ui.
costs." 1d. at * | (citing Bafford v. Township Apartments Assocs., Ztd, No. 8:06-cv-657-T-
27TGW. 2007 WL 4247'763 (M.D. Fla. Nov. 30, 2007), aff'd' No. 08-13072-F (1lth Cir. Aug.
27,2008), cert. denied,555 U.S. 877 (2008). The court dismissed Mr. Bafford's foreclosure
claims on jurisdictional grounds, noting that "[t]he pleadings . . . show that the Ioan agreement
was between private parties, and this court does not have subject matter jurisdiction to entertain
                                                   *3 (intemal citations and modifications omitted).
controversies between private parties." Id. at
The court also concluded that Mr. Bafford's allegations that Midfirst Bank was "acting under
direct control and observance ofHUD" did not sufficiently allege a contract with the United
States because the regulation he cited "does not make Mid[flirst Bank-or any other private
lending institution-an agent of HUD." 1d The court finally concluded that "Mr. Bafford's
purported contract with HUD is patently insubstantial and does not suff,ice as a ground for this
court to exercise subject matter j urisdiction over his case." 1d (internal quotation marks and
citations omitted). The court dismissed Mr. Bafford's complaint "without prejudice for lack of
subiect matter iurisdiction." Id. at*4.


       2Mr. Bafford has designated documents appended to his complaint as exhibits, but
because the attachments are irregularly identified, citations to the documents appended to his
complaint will be made to the page number of the document appended to the complaint.

        3As a court order appended to Mr. Bafford's complaint notes, Mr. Bafford filed at least
five lawsuits in the United States District Court for the Middle District of Florida, pertaining to
an attempt to purchase the Township Apartments. See Bafford v. Township Apts. Assoc., Ltd.,
No. 8:08-OV-72 4-T-27TGW (M.D. Fla. Apr.22,2008). The fifth suit resulted in an anti-filing
inj unction being issued against   him. /d. He also previously filed a complaint in this court
against the Uniied States District Court for the Middle District of Florida and the United States
Court ofAppeals for the Eleventh Circuit, again asserting claims arising out ofhis failed attempt
to purchase ihe Township Apartments, among others. See Bafford v. United States,No. 09-030,
2009 WL 2391785 (Fed. Cl. Aug. 3, 2009).
       In the present case, Mr. Bafford again alleges that a contract existed between himself and
HUD and thaiHUD breached that contract. compl. at 1. He claims that "a computer problem of
Midfirst Bank prevented [him] from making a payment on his homestead," that the bank then
prevented him from raising his defenses to foreclosure in the subsequent foreclosure
proceedings, and that the bank "transferred all liability to HUD, making HUD liable under the
                      ,).
contract." Compl. at

        As a remedy, Mr. Bafford requests $250,000, an amount he claims represents "lost value,
for contents illegaliy taken out of premises, for emotional distress, and for the loss ofuse ofthe
premises." He also appears to seek specific performance by requesting "the [c]ourt to order that
[the United States] honor the [c]ontract'" Compl. at 2.

                                  STANDARDS FOR DECISION

         As plaintiff, Mr. Bafford bears the burden of establishing jurisdiction. See Reynolds v.
Army & Air Force Exch. serv.,846 F.2d 746,748 (Fed. Cir. 1988). The leniency afforded pro se
litigants as to legai formalities does not extend to a lessening of the jurisdictional bur.d.en. Kelley
v. iecretary, Ilited Srates Dep't of Labor,812 F.2d 1378, 1380 (Fed. Cir. 1987). This court
                                                                                                    has
jurisdiction over,,any express or implied contract with the United States," 28 U.S.C. $
i+St(uxt), and the bar for establishing subject matter jurisdiction over such claims is not high.
 Su ingogt Learning, Inc. v. Salazar,660 F.3d 1346,1353 (Fed. Cir. 2011) ("[J]urisdiction
 under fihJ tucker Ait] requires no more than a non-frivolo:us allegation oia contract with
                                                                                                 the
                                                                                             604 (Fed.
 goverriment.,') (emphasis in original) (citing lewrs v. United States,70 F .3d 59'/ ,602,
 bi.. tggs); Gould, Inc. v. UniledStates,6'7 F.3d925,929-30 (Fed' Cir' 1995))'
        ,,The general rule is that so long as the plaintiffs have made a non-frivolous claim that
they are entitied to money from the United States . . . because they have a contract
                                                                                      right,lhis
                                                                                          127 Fed'
court has jurisdiction to settle the dispute." ln chor Tank Lines, LLC v. United States,
C1.484,ig3 (2016)(citingAdarbev. Uniteclstales,58 Fed. C1.707,714 (2003)) (additional
                                                                                                 with
citations and intemal quotations omitted). "The general requirements for a binding. contract
the United States are identical for both express and implied contracts. The party alleging
                                                                                              a
contract must show a mutual intent to contract including an offer' an acceptance.    and
consideration." Trauma serv. Group v. United stales,104 F.3d 1321' 1325 (Fed. Cir.
                                                                                          1997)
(citations omitted).

          ,,If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a
 matter of law." Gray v. Unired States, 69 Fed. Cl. 95, 98 (2005) (citing E,rr parte McCardle,T4
 U.S.(7Wall.) 506,i14(1868):Thoenv. IJnitedStates,T65F.2d 1110, 1116(Fed.Cir. 1985));
 see a/.ro Rule 12(h)(3) of the Rules of the Court of Federal Claims ("If the court determines
                                                                                                     d,
 any time that it lacks subjeclmatter jurisdiction, the court nasl dismiss the action ")
                                                                                             (emphasis
 added).
                                            ANALYSIS

                                         A. RESJUDICATA
          In its motion to dismiss, the government first argues that Mr. Bafford's claims are barred
by res  judicata   under either issue preclusion or claim preclusion. The govemment asserts that
issue preclusion applies to bar Mr. Bafford's claim because "Mr' Bafford asks this [c]ourt to
adjudicate virtually indistinguishable issues to the ones he previously raised. . . . [W]hether
HUD breached a contract with Mr. Bafford was litigated in the first action[,] . . . this [c]ourt's
decision that Mr. Bafford failed to establish a contract with HUD was essential to its decision
that it lacked jurisdiction[, and] . . . Mr. Bafford had a full and fair opportunity to litigate the
issue." Def.'s Mot. at 6. As to claim preclusion, the govemment submits that it too applies
because "the parties are identical: both cases were brought by plaintiff. . . against the United
states[;] . . . the first suit proceeded to final judgment on the merits; this [c]ourt dismissed Mr.
Bafford's amended complaint for lack ofjurisdictionl; and] . . in both cases, Mr. Bafford's
claims are based upon the same set of transactional facts." Id. at 6-7 .

        These arguments thal res judicala applies to bar Mr. Bafford's complaint are unavailing.
They presuppose that this court's decision dismissing his complaint constituted a "final judgment
on the merits." Def.'s Mot. at 6-7. That assumption is not valid. Instead, this court's decision in
2012 dismissing Mr. Bafford's complaint was on its face nol a decision on the merits: the court
determined it lacked jurisdiction, and thus held that'1he court cannot hear [Mr. Bafford's] claim
for breach of contract." Baflord,2Ol2WL 1197139, at *3 (emphasis added). Because the court
determined it lacked jurisdiction to hear Mr. Bafford's claims, it had no power to proceed to their
merits.

                       B. LACK      OF SUBJECT MATTER JURISDICTION

          Nevertheless, the court concludes that Mr. Bafford's claims do not fall within the
jurisdiction afforded to the court under the Tucker Act. Mr. Bafford's complaint asserts a breach
of contract by the United States by citing four primary facts: ( I ) Midfirst Bank held a mortgage
 on his house; (2) a computer problem at Midfirst Bank prevented Mr. Bafford from making
 moftgage payments; (3) Midfirst Bank prevented Mr. Bafford from asserting defenses in the
 foreclosure proceeding; and (4) the United States is Iiable because Midfirst Bank's interest was
 assumed by HUD. See Compl. at      l.    As this court noted in the prior decision, these same facts
 formed the operative core of Mr. Bafford's earlier complainl. See Bafford20l2 WL 1197139,at
 * I . In this most recent iteration of his claims, Mr. Bafford has proffered no new facts that would
 show that his claims are within this court's jurisdiction, including, importantly, no evidence to
 support his assertion that "Midfirst Bank has transferred all liability to HUD, making HUD liable
under the contract." ComPl. at 1.

        Additionally, the foreclosure that forms the basis of Mr. Bafford's complaint appears to
have been finally adjudicated in July 201 I and culminated in ajudicial sale in August 201 I
according to the case summary of the Florida state case. See Midfirst Bank v. True Shepherd
Bible Church, Inc., Case No. 09-ca-023286, Case Summary available at
httos://hover.hillsclerk.com./home.html (last visited Feb. 14, 2018). The pertinent slatute of
 limitations provides that "[e]very claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is frled within six years after such claim
 first accrues." 28 U.S.C. $ 2501. The statute of limitations accordingly expired before Mr.
 Bafford filed his present complaint.

        Finally, to the extent Mr. Bafford's complaint seeks damages for alleged causes of action
sounding in tort or arising under the criminal code, or requests equitable relief, see Compl. at 2,
these claims fall outside this court's jurisdiction, see 28 u.S.C. $ 1a91(a)(1) ("[t]he United States
court of Federal claims shall have jurisdiction to render judgment upon any claim against the
United States . . . for liquidated or unliquidated damages in cases not sounding in torl")
(emphasis added); Joshua v. United States,17 F.3d 378,379 (Fed. Cir. 1994) ("The [C]ourt [of
Fediral claims] has no jurisdiction to adjudicate any claims whatsoever under the federal
criminal code:'); Doe v. United States,372F.3d 1308, 1313 ("[T]he Court of Federal Claims . . .
does not have general equitable powers.") (citing United States v. Sherwood,312 U.S. 584, 589-
91 (1941).

         The court concludes that Mr. Bafford has not canied his burden to establish this court's
jurisdiction over his breach of contract claim because he has failed to make a non-frivolous
 allegation ofa contract. As the court noted in 2012,"Mr. Bafford's purported contraot with
 HUD is 'patently insubstantial. "'Balford,2012 WL 1191139, at 3.

                                          CONCLUSION

        For the reasons stated, the court has no judsdiction to consider Mr. Bafford's claims, and
thus the court GRANTS the defendant's motion to dismiss.a The clerk shall enter judgment in
accord with this disposition.

        No costs.

        It is so ORDERED.


                                                       Charles F. Lettow
                                                       Judge




       4Mr. Bafford's Motion to Declare Transfer Void is DENIED' and the govemment's
 Motion to Stay is DENIED as moot.
