Flowers v. United States , 321 F. App'x 928 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5052
MARSHALL KENNETH FLOWERS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Marshall K. Flowers, of Jacksonville, Florida, pro se.
Meredyth D. Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for defendant-
appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General,
Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.
Appealed from: United States Court of Federal Claims
Judge Margaret M. Sweeney.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5052
MARSHALL KENNETH FLOWERS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 05-CV-1163, Judge Margaret
M. Sweeney.
__________________________
DECIDED: November 5, 2008
__________________________
Before RADER, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Marshall K. Flowers (“Flowers”) appeals from final orders of the United States
Court of Federal Claims denying his motion for discovery and granting the government’s
motions pursuant to Rules 56 (summary judgment), 52.1 (judgment on the
administrative record), 12(b)(1) (lack of subject matter jurisdiction), and 12(b)(6) (failure
to state a claim) of the Rules of the United States Court of Federal Claims (“RCFC”).
Flowers v. United States, 75 Fed. Cl. 615 (2007); Flowers v. United States, 80 Fed. Cl.
201 (2008). Flowers also appeals from the denial of his RCFC 40.1 motion to reassign
the case to a different judge. Flowers v. United States, No. 05-1163C (Fed. Cl. Jan. 29,
2008) (“Recusal Opinion”). For the following reasons, we affirm.
BACKGROUND
On October 31, 2005, Flowers filed this action in the Court of Federal Claims. In
an amended complaint dated June 27, 2006, Flowers sought relief on the following
counts: (1) coercion into accepting nonjudicial punishment (“NJP”); (2) intimidation and
violation of Army regulations; (3) violation of Fifth Amendment due process and liberty
interests; (4) violation of Fifth Amendment rights arising from the Army’s alleged seizure
of savings bonds; (5) violation of a contractual agreement by the United States
Department of Treasury (“Treasury Department”) regarding the savings bonds; and (6)
breach of contract for damage to household goods. In an order dated March 1, 2007,
the Court of Federal Claims granted the government’s motion for summary judgment on
Counts 5 and 6 of the amended complaint and denied Flowers’s motion for discovery.
Flowers, 75 Fed. Cl. at 636. The remaining counts were dismissed on January 18,
2008. Flowers, 80 Fed. Cl. at 227. In particular, the Court of Federal Claims found
Counts 1-3 to contain interwoven tort, constitutional, and statutory military pay claims,
and disposed those claims as follows: judgment pursuant to RCFC 52.1 on all military
pay claims; dismissal pursuant to RCFC 12(b)(1) of claims sounding in tort, alleging
Fourth Amendment and Fifth Amendment due process and double jeopardy clause
violations, or seeking removal of the Army’s bar to reenlistment; and dismissal pursuant
to RCFC 12(b)(6) of claims alleging ineffective assistance of counsel, requesting
correction of military records, or asserting a Fifth Amendment liberty interest. Id.
Count 4 was dismissed pursuant to RCFC 12(b)(1). Id. On January 29, 2008, the Court
of Federal Claims denied Flowers’s RCFC 40.1 motion to reassign the case to a
different judge. Recusal Opinion, slip op. at 7.
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Flowers appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
A. Summary Judgment
We review a grant of summary judgment by the Court of Federal Claims de novo.
Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir. 2008). Summary judgment is
appropriate where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. RCFC 56(c).
1. Savings Bond Claim
The Court of Federal Claims granted the government’s motion for summary
judgment on Flowers’s savings bond claim (Count 5), holding that Flowers lacked
standing because he is not the registered owner of the savings bonds and that a prior
federal suit filed by Flowers precludes him from relitigating this same issue. Flowers, 75
Fed. Cl. at 632. In the prior federal suit, the U.S. District Court for the District of Hawaii
found that savings bonds valued less than $10,000 were registered not to Flowers but
to his adult daughters, and that this registration confers ownership to them, not him.
Flowers v. Sec’y of the U.S. Dep’t of Treasury, No. CV-03-16 (D. Haw. Jun. 13, 2003),
aff’d, 132 Fed. Appx. 728 (9th Cir. 2005). When Flowers later brought the instant suit to
recover savings bonds valued over $10,000, the Court of Federal Claims similarly found
that these bonds were registered in the names of his daughters and that the Treasury
Department had already issued checks to the daughters for their respective bonds.
Flowers, 75 Fed. Cl. at 630. Because 31 C.F.R. § 353.5(a) is a federal regulation that
explicitly provides that “registration is conclusive of ownership,” the Court of Federal
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Claims held that Flowers cannot rely on state law to establish ownership.
Consequently, the Court of Federal Claims rejected Flowers’s argument that a prior
state court’s default judgment against his daughters confers ownership to him. Indeed,
at the time Flowers sued his daughters in state court to establish ownership, his
complaint failed to disclose that the Treasury Department had already made payment to
the daughters on their respective bonds. Under principles of federal supremacy, the
Court of Federal Claims held that 31 C.F.R. § 353.5(a), and not the state court’s default
judgment, determines the bonds’ ownership. Flowers, 75 Fed. Cl. at 631.
On appeal, Flowers attempts to avoid the effect of federal preemption. He
primarily relies on Bodek v. Department of Treasury, 532 F.2d 277 (2d Cir. 1976), for
the proposition that ownership disputes between private parties are to be governed by
state law rather than federal law. In that case, decided prior to the promulgation of 31
C.F.R. § 353 (effective January 1, 1980), the Second Circuit held that an ownership
dispute between a son and his parents over U.S. savings bonds did not fall within the
category of “loss, theft, destruction, mutilation, or defacement” of the applicable statute
under which the Treasury Department was authorized to grant relief. Bodek, 532 F.2d
at 280 (quoting 31 U.S.C. § 738(a)). Rather, the Second Circuit found that the parties’
quarrel, at that time, was a matter to be settled among themselves, either privately or in
a state court. The implementation of 31 C.F.R. § 353.5(a) in 1980 changed that. The
federal regulation now provides, with limited exception, that “registration is conclusive of
ownership.” Id. The only listed exception is for correction of registration errors, which
are not at issue here. Id. § 353.49. Because there is no dispute that the savings bonds
are registered to Flowers’s adult daughters, and because 31 C.F.R. § 353.5(a) controls
2008-5052 4
the question of ownership, the Court of Federal Claims correctly found that the state
default judgment was inapplicable. See also Flowers v. Sec’y of the U.S. Dep’t of the
Treasury, 132 Fed. Appx. 728, 729 (9th Cir. 2005) (“Flowers is not the registered owner
and cannot, under principles of federal supremacy, rely on a contrary state court
judgment to establish ownership.”); Hardymon v. Miller, 718 F. Supp. 723, 725 (S.D.
Ind. 1989) (holding that a contrary state court judgment cannot turn solely-owned
savings bonds into probate assets in violation of 31 C.F.R. § 353.5(a)).
2. Shipment of Household Goods
The Court of Federal Claims granted the government’s motion for summary
judgment on Count 6, in which Flowers seeks to recover the value of his household
goods that were lost or damaged when the Army delivered those goods from Hawaii to
Australia. The trial court found that Flowers had already received $4,425 from the Army
to replace the lost or damaged goods, and that a finality provision of the Military
Personnel and Civilian Employees’ Claims Act (“MPCECA”) precludes judicial review of
the Army’s disallowance of any additional settlement. Flowers, 75 Fed. Cl. at 635
(noting that the MPCECA provides that settlement of a claim by the military is “final and
conclusive”) (quoting 31 U.S.C. § 3721(k)). In addition, the trial court noted that the
MPCECA is not a money-mandating statute; thus, the MPCECA does not create a
substantive right that would allow the Court of Federal Claims to exercise jurisdiction
under the Tucker Act. Flowers, 75 Fed. Cl. at 635 (stating that the Secretary’s authority
under the MPCECA is discretionary because he “may,” but need not, settle claims)
(quoting 31 U.S.C. § 3721(b)(1)).
2008-5052 5
On appeal, Flowers does not address these major defects in his claim. Nor does
he dispute the fact that he received a $4,425 settlement for his household goods. That
settlement is “final and conclusive” under 31 U.S.C. § 3721(k) and is not subject to
judicial review. Shull v. United States, 228 Ct. Cl. 750 (1981) (holding that the term
“final and conclusive” precludes judicial review of Army claims decisions). We therefore
affirm the grant of summary judgment.
B. Discovery
Discovery orders in the Court of Federal Claims are reviewed for abuse of
discretion. Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1356 (Fed.
Cir. 2002). The trial court limited the scope of discovery to rebutting the government’s
then-pending motion for summary judgment on Counts 5 and 6. Flowers sought to
depose various military officials, Treasury Department officials, and his two daughters.
To support his discovery request, Flowers stated that he “intends to show that U.S.
Saving [sic] Bonds were purchased by him [and] maintained in his possession until
removed by a government person.” Flowers, 75 Fed. Cl. at 629 (quoting Pl.’s Mot. 14).
The trial court denied Flowers’s motion for discovery, finding that no part of the motion
was directed to the dispositive issue of ownership and standing. Like his discovery
motion, Flowers’s appellate brief is directed primarily to the government’s alleged
seizure of his savings bonds, not the registered ownership of those bonds. Because
ownership depends on the bonds’ registration, not their purchase or possession, 31
C.F.R. § 353.5(a), the trial court did not abuse its discretion in denying Flowers’s
request to discover information wholly unrelated to the question of registration.
C. Judgment on the Administrative Record
2008-5052 6
We review the Court of Federal Claims’s factual determinations in a judgment on
the administrative record for clear error and the court’s legal conclusions without
deference. RCFC 52(a); Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir. 2006).
The trial court granted the government’s RCFC 52.1 motion on Flowers’s Military Pay
Act claim, under which Flowers alleges that he was coerced into accepting NJP and
seeks pay that he would have received had he not involuntarily retired.
The trial court found no merit in this claim, and neither do we. Flowers applied
for and was granted voluntary retirement effective January 1, 2000, although that date
was ultimately extended to January 31, 2000. He was compensated through January
31, 2000, his last day of active duty. Flowers now seeks pay exclusively for a period of
time beyond that date. Because Flowers was no longer a service member after January
31, 2000, he is not entitled to relief under the Military Pay Act, 37 U.S.C. § 204. See
James v. Caldera, 159 F.3d 573, 581 (Fed. Cir. 1998) (“Once James’ term of enlistment
ended, he no longer was entitled to pay under 37 U.S.C. § 204, because he was no
longer a service member.”).
The trial court also concluded that Flowers failed to prove that his retirement was
involuntary. We agree. A decision to retire is presumed voluntary. Carmichael v.
United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002). The presumption can be rebutted
if Flowers demonstrates that: (1) he involuntarily accepted the terms of the government;
(2) circumstances permitted no other alternative; and (3) those circumstances were the
result of the government’s coercive acts. Id. Contrary to Flowers’s unsubstantiated
allegations of coercion, the trial court made detailed findings of the circumstances of his
decision to accept NJP, all tending to show that the decision was voluntary. Flowers, 80
2008-5052 7
Fed. Cl. at 219 (noting that Flowers was furnished with alternatives, consulted with
counsel, and participated in setting favorable terms of his retirement). Flowers faced
the prospect of a court-martial on numerous counts of larceny and a dishonorable
discharge; he instead chose to accept NJP, an honorable discharge, and retirement at
full rank. Id. at 221. The most that can be said is that Flowers faced a choice between
two unpleasant alternatives. But, as we have said, “a choice is not involuntary simply
because an employee is faced with an inherently unpleasant situation or his choice is
limited to two unpleasant alternatives.” Terban v. Dep’t of Energy, 216 F.3d 1021, 1026
(Fed. Cir. 2000).
D. Dismissal
“We review the Court of Federal Claims’s decision to dismiss for lack of
jurisdiction and for failure to state a claim without deference.” Gallo v. United States,
529 F.3d 1345, 1348 (Fed. Cir. 2008).
1. Correction of Military Record
The trial court dismissed pursuant to RCFC 12(b)(6) Flowers’s request to correct
his military records, holding that it could not grant equitable relief under 28 U.S.C.
§ 1491(a)(2) because no money damages were owed for back pay. Flowers, 80 Fed.
Cl. at 222 (“The court . . . may correct applicable records only ‘as an incident of and
collateral to’ a judgment against the United States for money damages.”) (quoting 28
U.S.C. § 1491(a)(2)). Because we have affirmed, supra, the trial court’s judgment on
the administrative record of Flowers’s military pay claim, to which equitable relief might
conceivably have been tied, we likewise affirm its holding that the absence of money
damages in this case divests the court of its ability to grant equitable relief. See James
2008-5052 8
v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (“Stated another way, the Court of
Federal Claims has no power ‘to grant affirmative non-monetary relief unless it is tied
and subordinate to a money judgment.’”) (quoting Austin v. United States, 206 Ct. Cl.
719, 723 (1975)).
2. Tort Claims
The trial court dismissed pursuant to RCFC 12(b)(1) all claims sounding in tort.
Those claims included allegations that the Army engaged in various criminal and
tortious acts, as well as racial discrimination. The court found that it lacked jurisdiction
to hear such claims. Accepting as true all of Flowers’s allegations of fact, we agree with
the Court of Federal Claims that those claims fall outside of the court’s limited
jurisdiction. See Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the Court of
Federal Claims jurisdiction claims sounding in tort.”); Joshua v. United States, 17 F.3d
378, 379 (Fed. Cir. 1994) (stating that the Court of Federal Claims “has no jurisdiction to
adjudicate any claims whatsoever under the federal criminal code”). To whatever extent
Flowers may be asserting his discrimination claims under Title VII of the Civil Rights
Act, the Court of Federal Claims similarly lacks jurisdiction over them. 28 U.S.C.
§ 1343(a) (vesting original jurisdiction exclusively in “district courts”).
3. Fourth and Fifth Amendment Claims
Flowers has alleged Fourth Amendment violations, as well as Fifth Amendment
Takings, Due Process, and Double Jeopardy Clause violations. Those claims were
dismissed pursuant to RCFC 12(b)(1). Flowers also asserted a Fifth Amendment liberty
2008-5052 9
interest in his military employment. That claim was dismissed pursuant to
RCFC 12(b)(6).
We see no error in the trial court’s dismissal of these claims. Jurisdiction in the
Court of Federal Claims is limited under the Tucker Act to those claims based on “a
separate money-mandating constitutional provision, statute, or regulation, the violation
of which supports a claim for damages against the United States.” James, 159 F.3d at
580. The Fourth Amendment does not mandate the payment of money; therefore, the
Court of Federal Claims lacks jurisdiction over any alleged search and seizure violation.
Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (“Because monetary
damages are not available for a Fourth Amendment violation, the Court of Federal
Claims does not have jurisdiction over . . . such a violation.”). The same is true of Fifth
Amendment Due Process and Double Jeopardy Clause violations. James, 159 F.3d at
581 (“[T]he Court of Federal Claims lacks jurisdiction over [due process and double
jeopardy] claims because neither of the two clauses is a money-mandating provision.”).
Flowers’s appellate brief addresses only the takings claim. He contends that he
should have been given leave to allege additional facts to establish the necessary
cause of action. This takings claim (Count 4), however, is merely a Fifth Amendment
variant of his breach of contract claim (Count 5), on which he lost for failure to establish
ownership of the savings bonds. This lack of ownership is similarly fatal to Flowers’s
takings claim. See Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed. Cir.
2003) (“For any Fifth Amendment takings claim, the complaining party must show it
owned a distinct property interest at the time it was allegedly taken, even for regulatory
takings.”); Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001) (“It is axiomatic
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that only persons with a valid property interest at the time of the taking are entitled to
compensation.”). As previously mentioned, it is undisputed that the savings bonds were
registered in the names of Flowers’s adult daughters at the time of the alleged taking.
Because “registration is conclusive of ownership” under 31 C.F.R. § 353.5(a), we agree
that Flowers’s takings claim should be dismissed.
Nor did the Court of Federal Claims err in declining to transfer the takings claim
to a district court pursuant to 28 U.S.C. § 1631, which authorizes transfer “in the interest
of justice” only to a court “in which the action . . . could have been brought at the time it
was filed.” The issue of ownership has been repeatedly litigated. The U.S. District
Court for the District of Hawaii found that Flowers has no ownership interest in the
savings bonds valued less than $10,000. Flowers v. Sec’y of the U.S. Dep’t of the
Treasury, No. CV-03-16 (D. Haw. Jun. 13, 2003), aff’d, 132 Fed. Appx. 728 (9th Cir.
2005). The Court of Federal Claims reached the same conclusion for bonds exceeding
$10,000 in value. We therefore reject the argument that this claim should now be heard
again in a district court.
E. Recusal
The trial judge denied Flowers’s RCFC 40.1 motion to reassign the case to a
different judge and also declined recusal pursuant to 28 U.S.C. § 455. Recusal
Opinion, slip op. at 1. Flowers’s unsubstantiated allegations of bias and prejudice
amount to nothing more than mere displeasure with the court’s rulings dismissing his
meritless claims. As the Supreme Court has stated, however, “judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United
States, 510 U.S. 540, 555 (1994). Because Flowers points to no “extrajudicial source”
2008-5052 11
of the alleged bias or prejudice, he must prove that the judicial opinions or remarks
“display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. No such inference can be drawn here. Nothing in the record suggests
that Judge Sweeney’s conduct of the proceedings was anything other than evenhanded
and professional. Mindful of the court’s duty to hold pro se plaintiffs to “less stringent
standards than litigants represented by counsel,” Flowers, 80 Fed. Cl. at 209 (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)), Judge Sweeney excused Flowers’s failure
to address his takings claim in opposition to the government’s motion to dismiss,
Flowers, 80 Fed. Cl. at 225 n.14, and entertained a Fourth Amendment argument raised
for the first time in his reply brief, id. at 214 n.11. These charitable acts certainly do not
evidence a deep-seated favoritism for the government or antagonism against Flowers.
Indeed, on several occasions, Judge Sweeney went out of her way to direct both the
government and the Clerk of the Court to provide Flowers with courtesy copies of all
court filings, even as Flowers submitted over ten notices changing his address during
the course of the litigation. Recusal Opinion, slip op. at 3 n.5. Though Flowers argues
prejudice due to some “missing administrative records,” Judge Sweeney granted
Flowers leave to supplement the record with precisely those documents he now says
are missing. Id. at 2 n.4. Rather than evidencing bias or prejudice, the record shows
that the trial court gave Flowers a fair opportunity to present his case.
CONCLUSION
The judgment of the Court of Federal Claims is affirmed in all respects.
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