In the Anited States Court of Federal Claims

No. 18-980C
(Filed June 14, 2019)

 

NOT FOR PUBLICATION
)
HIRIAM ORTIZ, )
)
Plaintiff, ) Military Pay Claim; Tort Claim; Equal
) Protection Claim; Untimely Pay
Vv. ) Claim, 28 U.S.C. § 2501 (2012);
) Transfer of Other Claims, 28 U.S.C.
THE UNITED STATES, ) § 1631 (2012); Pro Se.
)
Defendant. )
)

 

Hiriam Ortiz, Bayamon, PR, pro se.

Eric E. Laufgraben, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney
General, Robert E. Kirschman, Jr., Director, Kenneth M. Dintzer, Deputy Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, DC, for defendant.

 

OPINION

CAMPBELL-SMITH, Judge.

The court has before it defendant’s motion to dismiss, filed August 27, 2018,
which is brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United
States Court of Federal Claims (RCFC).! See ECF No. 7. The court’s translated version
of plaintiffs response, along with the original submission in Spanish, was filed on
December 10, 2018. See ECF No. 10. The government filed its reply brief on December
21, 2018. See ECF No. 11. For the reasons stated below, defendant’s motion is
GRANTED in part, as to plaintiff's military pay claim, and DENIED in part, as to

 

| Because the court disposes of defendant’s motion on jurisdictional grounds, the
court does not reach defendant’s RCFC 12(b)(6) arguments.
plaintiff's defamation claim and equal protection claim, for these two claims must be
transferred to a district court.

I. Claims Alleged in the Complaint

Plaintiff Hiriam Ortiz was a member of the Puerto Rico National Guard. ECF No.
1 at 4-5 (complaint). On March 8, 2007, two of his colleagues reported to his superiors
that Mr. Ortiz made inappropriate comments to female teachers that he had encountered
as part of his classroom recruitment efforts. Id. Plaintiff reports that he later suffered
embarrassment and negative employment consequences after these reports were received
by his chain of command. Id. at 1. In his suit, plaintiff seeks “retroactive pay plus the
penalty, special compensation for damages and losses including moral and emotional
damages.” Id.

The court acknowledges that pro se plaintiffs “are not expected to frame issues
with the precision of a common law pleading.” Roche v. USPS, 828 F.2d 1555, 1558
(Fed. Cir. 1987). Therefore, plaintiff's complaint has been reviewed carefully to
ascertain whether, given the most favorable reading, it supports jurisdiction in this court.
Although the complaint is not perfectly clear as to the claims contained therein, in the
court’s view Mr. Ortiz has alleged three types of legal claims.

The court discerns a military pay claim in the complaint, arising either from a
missed promotion opportunity, or, perhaps, a discharge from the National Guard,
although no dismissal from the National Guard is specifically mentioned in the
complaint. ECF No. | at 1. The complaint also appears to allege defamation by Mr.
Ortiz’s colleagues and a teacher. See id. (stating that Mr. Ortiz’s superior officers had
“denigrated” him, and that two of his colleagues at the National Guard and the teacher
should be “in front of a judge [to] explain those massive and strong allegations”).
Finally, Mr. Ortiz alleges that he experienced a “lack of equal opportunity,” which
appears to be an equal protection claim. Id.; see also ECF No. 10 at 2 (stating that
plaintiff was “discriminated against .. . because of [his] physical appearance”) (emphasis
removed). The court will consider each of these claims in the analysis section of this
opinion.

II. Standard of Review for Motions Brought under RCFC 12(b)(1)

When reviewing a complaint to determine its jurisdiction over a plaintiffs claims,
this court must presume all undisputed factual allegations to be true and construe all
reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations
omitted). Plaintiff bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

 
UI. Analysis

The court begins its analysis with a review of this court’s subject matter
jurisdiction. The court then tests each claim in the complaint to determine whether that
claim is within this court’s jurisdiction. The court then applies the statute of limitations
to Mr. Ortiz’s military pay claim. Finally, the court considers whether the other claims in
the complaint should be transferred to a district court.

A. Tucker Act Jurisdiction

The Tucker Act delineates this court’s jurisdiction. 28 U.S.C. § 1491 (2012).
That statute “confers jurisdiction upon the Court of Federal Claims over the specified
categories of actions brought against the United States.” Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (citations omitted). These include money
damages claims against the federal government founded upon the Constitution, an act of
Congress, a regulation promulgated by an executive department, any express or implied
contract with the United States, or any claim for liquidated or unliquidated damages in
cases not sounding in tort. Id. (citing 28 U.S.C. § 1491(a)(1)).

B. Defamation Claim

Tort claims are specifically excluded from the jurisdiction of this court by the
Tucker Act. See 28 U.S.C. § 1491(a)(1) (limiting this court’s jurisdiction to “cases not
sounding in tort”). Thus, this court cannot consider tort claims. E.g., Brown v. United
States, 105 F.3d 621, 623 (Fed. Cir. 1997). Defamation is a tort, and like other tort
claims, a defamation claim cannot be considered by this court. E.g., Golden v. United
States, 118 Fed. Cl. 764, 769 (2014) (citations omitted).

Variants of defamation claims include claims for slander and libel; these tort
claims, too, are outside of the jurisdiction of the court. Id. at 770; Brooks v. United
States, 70 Fed. Cl. 479, 486-87 (2006) (citations omitted). To the extent that plaintiff
brings claims of libel and slander in his suit, as well as his defamation claim, these tort
claims are also outside of the jurisdiction of the court. ECF No. 10 at 1. Accordingly,
this court cannot consider any of the tort claims in the complaint, including the
defamation claim.

C, Equal Protection Claim

It is well settled that claims alleging violations of the constitutional rights to due
process and equal protection do not fall within this court’s jurisdiction. Mullenberg v.
United States, 857 F.2d 770, 773 (Fed. Cir. 1988). Claims founded on these rights are
not within this court’s jurisdiction because these constitutional guarantees do not provide
a money-mandating source of law for the claimant in this court. E.g., LeBlanc v. United
States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citations omitted). Equal protection claims
founded on civil rights statutes are also not within this court’s jurisdiction. E.g., Willis v.
United States, 96 Fed. Cl. 467, 470 (2011). Thus, the court cannot consider Mr. Ortiz’s
equal protection claim because it lacks subject matter jurisdiction over such claims.

Dd, Military Pay Claim is Untimely

As a general matter, military pay claims are within the jurisdiction of this court.
See Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc). Mr.
Ortiz’s military pay claim, however, cannot be considered by this court because it is
untimely. A suit must be filed in this court within six years of the date on which the
claim stated in the complaint first accrued. 28 U.S.C. § 2501 (2012). As noted by the
United States Court of Appeals for the Federal Circuit, untimely military pay claims must
be dismissed pursuant to section 2501. Martinez, 333 F.3d at 1300, 1310, 1320.

 

Plaintiff filed the instant suit on July 6, 2018. In order to be considered timely
under section 2501, plaintiff's military pay claim must have accrued no earlier than July
6, 2012. If plaintiffs claim accrued before that date, then this court cannot consider the
claim because it is time-barred. Further, the six-year statute of limitations in section 2501
cannot be equitably tolled by this court. FloorPro, Inc. v. United States, 680 F.3d 1377,
1380-81 (Fed. Cir. 2012) (citations omitted). In other words, extenuating circumstances
cannot excuse the filing of a claim that arose more than six years before a suit was filed
in this court.

 

As defendant notes, the facts alleged in the complaint are asserted to have
occurred in 2007 and 2009. ECF No. 7 at 4-5. The statute of limitations bar in section
2501 was the first of the challenges to the complaint mentioned in the government’s
motion to dismiss. Id. Nowhere in plaintiffs response to the motion to dismiss does Mr.
Ortiz allege that any of the actions underlying his suit occurred after 2009. ECF No. 10;
see also ECF No. 11 (‘Plaintiff's response does not identify any relevant conduct that
took place within the six-year limitations period.”).

The court cannot create a timely claim for plaintiff where there is none stated in
the complaint. See, e.g., Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (stating
that there is no duty for the trial court “to create a claim which [the plaintiff] has not
spelled out in his pleading’) (internal quotations and citation omitted). All of the facts
asserted in the complaint that might support a military pay claim took place in 2007 or
2009. Because the military pay claim alleged in the complaint is time-barred under
section 2501, the court must dismiss plaintiffs military pay claim pursuant to RCFC

12(b)(1).

B Transfer
Transfer of cases from this court to a district court is governed by 28 U.S.C.
§ 1631 (2012), which states in relevant part:

Whenever a civil action is filed in [this] court ... and [this] court finds
that there is a want of jurisdiction, the court shall, if it is in the interest of
justice, transfer such action or appeal to any other such court . . . in which
the action or appeal could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if it had been filed in or
noticed for the court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is transferred.

Id. Because the court lacks jurisdiction over tort and equal protection claims, the court
considers whether Mr. Ortiz’s defamation claim and his equal protection claim should be
transferred to a district court.2, When “the record does not show that transfer would
unduly burden the judicial system,” transfer may be appropriate. Texas Peanut Farmers
v. United States, 409 F.3d 1370, 1375 (Fed. Cir. 2005).

Here, there may be claims stated in the complaint that would be cognizable in a
district court. For example, equal protection claims may be brought in a district court.
E.g., Marlin v. United States, 63 Fed. Cl. 475, 476 (2005) (citations omitted). Transfer of
equal protection claims from this court to a district court “ensure[s] that Plaintiffs are not
deprived of their rights.” Willis, 96 Fed. Cl. at 472. To ensure that Mr. Ortiz is not
deprived of his rights, the court finds that transfer is in the interest of justice here.?

 

IV. Conclusion

For the reasons stated in this opinion, plaintiff's claims cannot be litigated in this
court. Accordingly,

 

Because plaintiffs military pay claim is within this court’s subject matter
jurisdiction, transfer of that claim is not permitted under the statute. E.g., Rogers v.
United States, 26 Cl. Ct. 1023, 1030 (1992).

S Whether any of the tort and equal protection claims in the complaint would be
considered by the district court to be timely and otherwise cognizable is a question for the
district court. See Butts v. United States, No. 14-128C, 2014 WL 4071649, at *2 n.3
(Fed. Cl. Aug. 15, 2014) (stating that “this court’s role .. . is to merely discern whether a
district court might have jurisdiction over plaintiffs claims”); Avery v. United States,
No. 04-1525C, 2005 WL 6112629, at *7 (Fed. Cl. May 6, 2005) (finding transfer in the
interest of justice because the court was “unable to rule out the possibility of relief in
district court”).
(1)

(2)

(3)

(4)

Defendant’s motion to dismiss, ECF No. 7, is GRANTED in part, as to
plaintiff's military pay claim, and DENIED in part, as to plaintiff's
defamation and equal protection claims;

The clerk’s office is directed to ENTER final judgment for defendant
DISMISSING plaintiffs military pay claim, without prejudice; and

The clerk’s office is directed to TRANSFER plaintiff's defamation claim
and equal protection claim to the United States District Court for the
District of Puerto Rico; and

No costs.

IT IS SO ORDERED.

eG ‘
Kin tO proud
PATRICIA E. CAMPBELL-SM{TH

Judge

 
