                                     ORIGENAL
            llntE      @niteD        btatts     @ourt of      fe[rrul        [.Lailrrs
                                             Pro Se
                                          No. l4-1079C
                                     Filed: September 28, 2015




 THOMAS H. PATTON,
                                                              28 U.S.C. $ l500; Substantially
                        Plaintiff,                            the same operative facts;
                                                                         I
                                                              28 U.S.C. 1631.




 THE UNITED STATES OF AMERICA,
                                                                                       FILED
                        Defendant.
                                                                                     sEP   21    2015

                                                                                    U.S. COURT OF
                                                                                   FEDERALCLAIMS

Thomas H. Patton, Levittown, NY, plaintiff, pro se.

Agatha Koprowski, Trial Attorney, with whom were Benjamin Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Director, Reginald T. Blades, Jr., Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, and Ilene S. Kreitzer, Counsel to the U.S. Merchant Marine Academy, Kings Point, NY, for
Defendant.



                                     OPINION AND ORDER


Kaplan, Judge.

       This case is currently before the Court on the govemment's motion to dismiss for lack     of
subject matterjurisdiction pursuant to Rules ofthe Court ofFederal Claims (RCFC)      l2(b)(l)   and

l2(bx6).   The p1q se plaintiff, Thomas H. Patton, contends that the United States Department    of
Transportation, which operates the United States Merchant Marine Academy (the "Academy''),

breached an agreement it allegedly entered with him that set forth certain terms for his continued
enrollment at the Academy, Mr. Patton alleges that as a result of this breach he was improperly

expelled and/or disenrolled from the Academy. Among other forms ofrelief, he seeks

compensatory damages and reinstatement as a midshipman.

        Mr. Patton's breach ofcontract claim was originally brought as part ofa multi-count

complaint he filed against the Department of Transportation, one of its contractors (the Patten

Clinic), and several DOT employees. Compl., Patton v. U.S. Dep't of Transn.. No.2:13-CV-

05646 (E.D.N.Y. Oct. 15,2013), ECF No.       l.   On August 20,2014, however, the district court in

that action ruled that it lacked jurisdiction over Mr. Patton's contract claim because the damages

requested exceeded the $10,000 threshold for the district court's exercise ofconcurrent

jurisdiction under the Tucker Act. Decision Tr. at l0-11, Patton. No. 2:13-CV-05646, ECFNo.

30; Order, Patton, No.2:13-CV-05646, ECF          No.27. At plaintiff   s request,   the district court

transferred the contract claim to this Court pursuant to 28 U.S.C. $ 1631. Order, Patton, No.

2:13-CY-05646, ECF No. 29.

       The United States subsequently filed a motion to dismiss the complaint under Rules

l2(b)(l) and/or l2(b)(6) ofthe Rules ofthe Court ofFederal Claims. Among               other things, the

United States argued that this Court lacked Tucker Actjurisdiction over Mr. Patton's contract

claim because, as a member ofthe United States Naval Reserve, any rights bestowed upon him

with respect to his enrollment in the Merchant Marine Academy were based upon statute and

regulation, and not upon contract. Def.'s Mot. to Dismiss 6-7, ECF No.         4. It also   argued that

Tucker Actjurisdiction would not lie even if Mr. Patton could demonstrate that he entered a

binding contract with the United States because the contract could not be fairly interpreted as

providing a right to damages for its breach. Id. at 7.
          On May 20, 2015, after the parties completed briefing on the govemment's motion to

dismiss, the Court requested supplemental briefing on the issue of whether the jurisdictional bar

set   forth in 28 U.S.C. $ 1500 was applicable. Order for Suppl. Briefing, ECF No. 10. Pursuant

to that provision, the United States Court ofFederal Claims "shall not have jurisdiction ofany

claim for or in respect to which the plaintiffor his assignee has pending in any other court any

suit or process against the United States or any person who, at the time when the cause ofaction

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 parties have now filed their supplemental briefs concerning the applicability   of28

U.S.C. $ 1500. For the reasons set forth below, the Court concludes that the jurisdictional bar set

forth in that statute applies here. Accordingly, this case mustbe dismissed for lack ofsubject

matter iurisdiction.


                                          BACKGROUND

I.       The Present Complaint

         Mr. Patton alleges that on June 8, 201 I, while   a midshipman at the Academy, he entered


what he characterizes as an "agreement" setting forth the conditions under which he would be

permitted to complete his studies and graduate. Compl.       fl l0; Compl. Ex. B. The agreement,   he

contends, is set forth in a letter to him ofthat date from the Superintendent ofthe Academy. The

letter (entitled "TERMS OF PROBATION') conveyed the Superintendent's decision after

"careful review of [Mr. Patton's] academic record" that he would be subject to certain

"additional academic terms in regard to [his] Deferred Graduate status." Compl. Ex. B. Among

other things, the letter required that by November 1,2011, Mr. Patton complete 56 sea days,

perfiorm 240 hours of extra duty, and take a Humanities class.     !!
        Mr. Patton alleges that when he retumed to the Academy in early June of 201 I, he "made

extensive efforts to arrange for sea duty, including making numerous phone calls to two different

Academy Training Representatives          ('ATR') to arrange for   sea   duty." Compl. fl 12. He further

claims that the ATRs informed him that he could not participate in sea duty until he was cleared

for such by the Patten Clinic. ld.    I   Mr. Patton alleges that he was examined at the Patten Clinic

on June 14, 201   I by Dr. Ronald Feinstein, who      checked boxes on the medical examination form

indicating that Mr. Patton was "recommended competent" and was "qualified for service." Id.

!l 14; Compl. Ex. D. Mr. Patton alleges that Dr. Feinstein nonetheless advised him that he was

not fit for sea duty because he had high blood pressure. Compl. !l 15.2

        On June 28, 201I, Mr. Patton was verbally directed to complete the 240 hours ofextra

duty required by the June 8, 201I letter. Id. !l 20. He met the requirement by assisting in the

new student indoctrination program on campus through late August. Id. fl 21.

        Thereafter, Mr. Patton alleges he again made efforts to contact an ATR to arrange his sea

duty, but was told by the Academy's dean that he had not been cleared by the Patten Clinic, and

that he was still required to secure such clearance in order to perform sea duty. Id.11122-23. ln

an effort to secure clearance from the Patten Clinic, Mr. Patton underwent blood pressure testing

on September 23, 201   l,   the results   ofwhich, he contends, showed that he was fit for    sea   duty.




 ' According to Mr. Patton, the Patten Clinic is a health clinic that is "owned, operated and/or
maintained by the United States Department of Transportation" and is "responsible for the
overall management ofthe medical care, dental care and emergency services for the officers of
the United States Merchant Marine." Compl. fl 9.

2
 Mr. Patton's medical records were reviewed the same day by the Bureau of Medicine and
Surgery of the Department of the Navy ("BUMED"), which found that he did not meet
established physical standards due to a history of lumbar degenerative disc disease. Compl. ,lf 16;
Compl. Ex. E. It recommended that Mr. Patton receive a waiver of physical standards, which
Mr. Patton alleges meant that BUMED had found him physically fit. Compl. fl 17.
ld. atl26; Compl. Ex. H. Mr. Patton also alleges that an October 4, 2011 medical consultation

report (which was not made available to him) stated that he was "ok to go to see               [sic]." Compl.

1l\22-28; Compl. Ex. I.

         According to Mr. Patton, at some point thereafter, Dr. Feinstein refened him for testins

for sleep apne4 notwithstanding that he was not suffering from any symptoms ofsleep apnea.

Compl. !129; Compl. Ex. J. He ultimately underwent such testing on November 21, 2011, and

was reported to have shown "no significant sleep disordered breathing." Compl. Ex. J.

         In the meantime, by letter of November 9, 201 1, the Academy's Interim Superintendent

and Academic Dean (Dr. Shashi Kumar) advised Mr. Patton that the Academy had decided to

disenroll him upon "careful review of [his] academic record" because he had failed to meet the

requirements for graduation by November             l,   2011, as specified in the June 8, 2011 Terms       of

Probation letter. Compl. fl   3   l; Compl.   Ex.   K. Mr. Patton       requested that Dr. Kumar reconsider

his decision but Dr. Kumar allegedly refused to do so. Compl. fl 34.

         Mr. Patton contends that "[a] key basis for Kumar's decision to disenroll [him] was his

beliefthat Plaintiffwaited until September 9, 2011, to first contact an ATR to arrange for               sea


duty." Id. fl 32. He alleges that this belief       was incorrect because he had made "extensive efforts

to arange for sea dutf' but had been informed by the ATRs that he needed clearance from the

Patten   Clinic. Id. Mr. Patton claims that "[e]ven though Kumar could have easily verified the

inaccuracy ofhis belief, he never did so and stood by his sole decision to disenroll Patton, even

though it was based on erroneous information." Id.             Jl   33. He further alleges that 'lhe only

reason that [he] did not complete his sea project was because              ofthe interference and delays

caused by Defendants, including the Patten Clinic, the Academy, and the members                  ofthe

Academy's staff." Id. fl 36. In particular, he alleges that the Patten Clinic deliberately
misdiagnosed him as suffering from high blood pressure and sleep apnea in order to preclude

him from completing his sea duty and meeting the conditions set for his graduation. Id. flfl 37-

42.

        According to Mr. Patton, the actions described above prevented him from abiding by

certain terms of the alleged agreement, and the Academy's decision to expel/disenroll Mr. Patton

constituted a breach ofthat agreement. Id. flfl 53-55. He seeks damages for injuries he sustained

as a result   ofthe alleged breach,   as   well as reinstatement to the Academy. Id. at 10.


IL      The District Court Action

        As described above, Mr. Patton initiated an action in the United States District Court for

the Eastem District of New York on October 15,2013. Compl., Patton, No. 2:13-CY-O5646,

ECF No. 1. The defendants named in the district court complaint were the Department             of
Transportation, the Academy, the Patten Clinic, Dr. Feinstein, Dr. Kumar, and John Does 1-10,

identified as "agents, employees and/or officers ofthe United States Department of

Transportation and/or the Academy." The factual allegations in the complaint are largely the

same as those made in the complaint before this Court, described above. Id. !f!J l-40.

        The complaint included six counts, including:        (l)   violation ofprocedural due process

under the Fifth Amendment; (2) viotation of substantive due process under the Fifth

Amendment; (3) breach of contract; (4) interference with contract; (5) fraud; and (6) breach         of
fiduciary duty. Id. fl 55-84. The govemment moved to dismiss Mr. Patton's complaint in its

entirety. As discussed above, the district court concluded that Mr. Patton's claim for breach        of

contract was within the exclusive jurisdiction ofthe Court ofFederal Claims, and granted in part

and denied in part the govemment's motion as to Mr. Patton's other claims. See Order, Patton.

No. 2:13-CV-05646, ECF No. 27. After the district court transferred Mr. Patton's breach           of
contract claim to this Court, Mr. Patton filed an amended complaint in the district court. Am.

Compl., Patton, No. 2:13-CV-05646, ECF No. 3l; Compl. fl 3. As ofthe date of this opinion, the

district court case is still pending.

                                                    DISCUSSION

I.         Standards for Motion to Dismiss Pursuant to RCFC 12(bX1)

           In deciding a motion to dismiss for lack ofsubject matterjurisdiction, the court accepts as

true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe

plaintiff. Trusted Intesration. Inc. v. United          States, 659 F.3d 1159, I163 (Fed. Cir. 201   l).   The

court may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.

United States, 933 F.2d 991,993 (Fed. Cir. 1991). It is well established that complaints that are

filed by pro   se   plaintiffs,   as   this one is, are held to "less stringent standards than formal pleadings

drafted by lawyers." Haines v. Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even plq                  !9
plaintiffs must persuade the Court that jurisdictional requirements have been met. Bemard v.

United States. 59 Fed. Cl. 497, 499 (2004), affd. 98 Fed. App'x 860 (Fed. Cir. 2004).


     II.      Tucker Act Jurisdiction

           The Court ofFederal Claims has jurisdiction under the Tucker Act "to renderjudgment

upon any claim against the United States founded either upon the Constitution, or any Act                  of

Congress 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. $ 1a9l(a)(1) (2012). The Tucker Act also grants this court jurisdiction to grant

equitable and declaratory relief, but only when such reliefis "an incident ofand collateral to" a

moneyjudgment. Id. $ 1491(a)(2); Bobula v. U.S. Dep't of Justice. 970F.2d 854, 859 (Fed. Cir.

1992).
          The Tucker Act waives the sovereign immunity of the United States to allow a suit fot

money damages, United States v. Mitchell.463 U.S. 206,212 (1983), but it does not confer any

substantive rights on a plaintifi United States v. Testan, 424 U.5.392,398 (1976). Therefore, a

plaintiffseeking to invoke the court's Tucker Actjurisdiction must identiff an independent

source   ofa substantive right to money   damages from the United States arising out       ofa contract,

statute, regulation, or constitutional provision. Jan's Helicooter Serv.. Inc. v. Fed. Aviation

Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).


rrr.      28   u.s.c. s 1s00

          As noted above, 28 U.S.C. $ 1500 provides that the United States Court of Federal

Claims "shall not have jurisdiction ofany claim for or in respect to which the plaintiffor his

assignee has pending in any other court any suit or process against the United States or any

person who, at the time when the cause ofaction alleged in such suit or process arose, was, in

respect thereto, acting or professing to act, directly or indirectly under the authority    ofthe United

States." Two inquiries are thus required to determine whether $ 1500 applies: "( I ) whether

there is an earlier-filed suit or process pending in another court, and,   if   so, (2) whether the claims

asserted in the earlier-filed case are for or in respect to the same claim(s) asserted in the later-

filed Court ofFederal Claims action." Brandt v. United States. 710 F.3d 1369, 1374 (Fed. Cir.

2013) (quotations omitted). With respect to the second inquiry, the Supreme Court has held that

"[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Court of

Federal Claimsl, ifthey are based on substantially the same operative facts, regardless ofthe

reliefsought in each suit." United States v. Tohono O'Odham Nation. 131 S.Ct. 1723,              l73l
(201   1). "[I]t is irrelevant whether the relief sought in the two co-pending suits is the same or

different (e.g., injunction versus money damages). All that matters is that the two suits be based
on 'substantially the same operative facts."' Ministerio Roca Solida v. United States, 778 F.3d

1351, 1354 (Fed. Cir.2015) (citation omitted) (quoting Tohono,              l3l   S.Ct. at 1731).


 IV.      Application of Standards

          A.   Pending Darlier-Filed Suit

          As noted, in order to determine whether section 1500 bars this suit, the Court must first

determine whether there was an earlier-filed suit or process pending in another court at the time

this case was filed. In this case, that requirement has been met.

          Pursuant to 28 U.S.C. $ 1631, a claim that is transferred "shall proceed as          if it had been

filed in or noticed for the court to which it is transfened on the date upon which it was actually

filed in or noticed for the court from which it was transferred." The court of appeals has held

that this provision means that "the court receiving a transferred claim must treat the claim as           if it

were filed at the same moment the claim was filed originally in the first court." Griflin v. United

States, 590 F.3d 1291, 1293 (Fed. Cir. 2009) (citing United States v. County             ofCook. 170 F.3d

1084, 1090 (Fed. Cir.    l999)). It   has further held that   if claims   are filed simultaneously in both

the district court and the Court ofFederal Claims, then the claim filed in the district court         will   be

treated as "pending" for purposes ofsection 1500.        Id. "Therefore, ifa plaintifffiles multiple

related claims in district court, and the court transfers one ofthose claims to the Court ofFederal

Claims, the original claims are 'pending' at the time the transferred claim is considered filed, and

$ 1500 may deprive the Court ofFederal Claims ofjurisdiction over the transfened claim." Ic,

         B. Nature   of the Claims

         The second inquiry for the Court-whether the claims asserted in the earlier-filed case

are   "for or in respect to the same claim(s) asserted" in this action-must also be answered in the

affirmative. The complaint in the district court and complaint filed here clearly involve



                                                     9
"substantially the same operative facts." See Tohono O'Odham Nation. 131 S. Ct. at 173            l.   In

both cases, Mr. Patton alleges that he was prevented from meeting the conditions for graduation

set forth in the June 8, 201   I   letter because ofthe actions ofthe United states or "persons acting

or professing to act, directly or indirectly under the authority of the United States"-i.e', the

Patten Clinic. Dr. Feinstein, Dr. Kumar, and the other unnamed Academy employees who are

named as defendants in the district court. He claims in both complaints, and in virtually the

same language, that these wrongful actions led to the same        injury-his disenrollment/expulsion

from the Academy. Indeed, in the district court action he has characterized the very same

conduct that is here claimed to constitute a breach of contract as either tortious, a breach     of

fiduciary duty, or unconstitutional under the Fifth Amendment. See Am. Compl., Patton. No.

2:13 -CY -05646, ECF No.       3   l.

        In short, in this case, Mr. Patton has "filed two nearly identical complaints that, at best,

repackage[] the same conduct into two different theories." Cent. Pines Land Co. v. United

States,697 F.3d 1360,1364-65 (Fed. Cir.2012). Thus, because section 1500's applicability

depends upon whether the operative facts overlap, and not on whether the two suits involve the

same causes ofaction or requests for relief,      Mr. Patton's claims in the district court are "for or in

respect to the same claim(s) asserted" in this     Court. Therefore, 28 U.S.C. $ 1500 applies     and this


Court lacks jurisdiction over Mr. Patton's breach ofcontract claim.


V,      Request for Transfer

        Mr. Patton has requested that this Court transfer the case back to the district court if it

concludes that section 1500 is applicable. Pursuant to 28 U.S.C. $ 1631, where it is in the

interest ofjustice, a court may transfer a case over which it lacks jurisdiction "to any other such

court in which the action . . . could have been brought at the time it was filed." ln this case,



                                                      l0
however, the district court has already concluded (correctly) that it lacked jurisdiction over Mr.

Patton's contract claim. Because the district court is not a court in which this suit "could have

been brought at the time it was filed," and because any transfer back to that court would be futile,

Mr. Patton's reouest for   a transfer must be denied.




                                           CONCLUSION

          The govemment's Motion to Dismiss pursuant to RCFC 12(b)(l) is GRANTED and this

case is   DISMISSED without prejudice. Each side shall bear its own costs' The Clerk of the

Court is directed to enterjudgement accordingly.


          IT IS SO ORDERED.




                                                        ELAINE D. KAPLAN
                                                        Judge




                                                  ll
