     lfn tbe Wniteb ~tates
                                       INA
                                       Qeourt of     jfeberal      Qelaitns
                                  No. 16-28C
                           (Filed: October 19, 2016)
                                                                             FILED
                                                                           OCT 19 2016
* ***** ** ** * *** * * * * *** * * ** *                                  U.S. COURT OF
                                                                        FEDERAL CLAIMS
ROBERT L. TAYLOR,

                      Plaintiff,                    Jurisdiction; Transfer
                                                    pursuant to Section 1631;
V.                                                  Section 1500

THE UNITED STATES,

                      Defendant.

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

       Robert L. Taylor, Honolulu, HI, prose.

       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. Post-
       Traumatic 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 non-
frivolous 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
ofjurisdiction. 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 non-
transfened 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




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