Jordan v. United States ( 2022 )

In the United States Court of Federal Claims
No. 20-1690C
(Filed: March 15, 2022)
)
TONY JORDAN, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Tony Jordan, pro se, Valrico, FL.
Michael D. Austin, United States Department of Justice, Civil Division, Washington,
D.C., for Defendant. With him on the briefs were Brian M. Boynton, Acting Assistant
Attorney General, Civil Division, Martin F. Hockey, Jr., Acting Director, and Allison Kidd-
Miller, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C. Of counsel was Juliana B. Pierce, Defense
Finance and Accounting Service, General Counsel Office.
OPINION AND ORDER
SOLOMSON, Judge.
On November 20, 2020, Plaintiff, Tony Jordan, a retired Army reserve officer,
proceeding pro se, filed his original complaint against Defendant, the United States.
ECF No. 1 (“Compl.”). The government moved to dismiss Mr. Jordan’s complaint
pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims
(“RCFC”). ECF No. 11 (“Def. Mot.”). The Court permitted Mr. Jordan to file an
amended complaint, ECF Nos. 13, 14 (“Am. Compl.”), which the government also
moved to dismiss pursuant to RCFC 12(b)(1), ECF No. 17 (“Def. Mot. Dismiss Am.
Compl.”). The parties filed timely response briefs. ECF Nos. 18 (“Pl. Resp.”), 19 (“Def.
Reply”). On September 20, 2021, Mr. Jordan filed a motion for leave to respond to the
government’s reply, ECF No. 20, which this Court granted, ECF Nos. 21, 22 (“Pl.
Reply”).
The singular focus of Mr. Jordan’s several “causes of action” is a debt of
$88,578.33 which Mr. Jordan claims the Defense Finance and Accounting Authority
(“DFAS”) unlawfully withheld from his military pay over a period of five years.
Compl. at 2; Am. Compl. ¶¶ 54–58.1 The government contends that this Court lacks
jurisdiction to decide Mr. Jordan’s claim because he failed to file his complaint within
the six-year statute of limitations. See 28 U.S.C. § 2501; Def. Mot. at 1; Def. Mot. Dismiss
Am. Compl. at 2.
For the reasons explained below, the Court agrees with the government and
holds that Mr. Jordan’s claim is untimely pursuant to the applicable statute of
limitations, see 28 U.S.C. § 2501. Accordingly, the Court GRANTS the government’s
motion to dismiss Mr. Jordan’s amended complaint for lack of jurisdiction.
I. JURISDICTION AND STANDARD OF REVIEW
Courts hold the pleadings of pro se plaintiffs to a less rigorous standard than
those of represented parties. See Roche v. U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir.
1987) (“Pro se petitioners are not expected to frame issues with the precision of a
common law pleading.”); Perry v. United States, 149 Fed. Cl. 1, 9–10 (2020) (“Courts treat
a pro se plaintiff’s pleadings with less scrutiny and give them a more liberal construction
than pleadings prepared by counsel.” (citing Castro v. United States, 540 U.S. 375, 381
(2003))), aff’d, 2021 WL 2935075 (Fed. Cir. July 13, 2021). Accordingly, the Court
construes all of Mr. Jordan’s legal arguments in the most generous, plausible manner.
Moss v. United States, 101 Fed. Cl. 611, 615 (2011).
Pro se plaintiffs cannot, however, evade this Court’s jurisdictional requirements.
See Ex parte McCardle, 74 U.S. 506, 514 (1868) (“Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”); Kelley v. Sec’y, U.S. Dep’t of Labor, 812
F.2d 1378, 1380 (Fed. Cir. 1987) (noting that “leniency with respect to mere formalities
should be extended to a pro se party,” but “a court may not similarly take a liberal view
of [a] jurisdictional requirement and set a different rule for pro se litigants only”); Hale v.
United States, 143 Fed. Cl. 180, 184 (2019) (“[E]ven pro se plaintiffs must persuade the
court that jurisdictional requirements have been met.”); RCFC 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”).
Generally, “[t]he jurisdiction of the Court of Federal Claims is defined by the
Tucker Act, which gives the court authority to render judgment on certain monetary
claims against the United States.” RadioShack Corp. v. United States, 566 F.3d 1358, 1360
(Fed. Cir. 2009). The Tucker Act, 28 U.S.C. § 1491(a)(1), provides this Court with
1Mr. Jordan’s amended complaint numbers each paragraph, but his original complaint
numbers only pages; this opinion address arguments presented in both complaints.
2
jurisdiction “to render judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or any regulation of an 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.
§ 1491(a)(1); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004) (noting that
the Tucker Act permits “actions pursuant to contracts with the United States, actions to
recover illegal exactions of money by the United States, and actions brought pursuant to
money-mandating statutes, regulations, executive orders, or constitutional provisions”
to be brought in the Court of Federal Claims). The Tucker Act, however, “does not
create a substantive cause of action.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en banc in relevant part). Moreover, “[n]ot every claim invoking the
Constitution, a federal statute, or a regulation is cognizable under the Tucker Act.”
United States v. Mitchell, 463 U.S. 206, 216 (1983). With respect to “money-mandating”
claims, the plaintiff must identify a law that “can fairly be interpreted as mandating
compensation by the Federal Government for the damage sustained.” Id. at 217(quoting United States v. Testan, 424 U.S. 392, 400 (1976)). Illegal exaction claims allege
that money was “improperly paid, exacted, or taken from the claimant,” Eastport S.S.
Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967), and do not need to identify a
money-mandating statute. Boeing Co. v. United States, 968 F.3d 1371, 1384 (Fed. Cir.
2020); Perry, 149 Fed. Cl. at 32.
The Court of Federal Claims may exercise jurisdiction over a claim against the
United States only if the plaintiff files suit within six years of when the claim accrues.
28 U.S.C. § 2501 (“Every claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after such
claim first accrues.”). The Supreme Court has “long interpreted” this Court’s
limitations statute as “absolute” and “jurisdictional.” John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 134 (2008). Consequently, the statute of limitations is not subject to
equitable tolling. Id. at 133–39 (discussing the history of the Court of Federal Claims’
statute of limitations and concluding that it does not permit equitable tolling); see also
Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (“[E]quitable tolling . . . is
foreclosed by John R. Sand & Gravel, wherein the Court held that the Tucker Act’s statute
of limitations is in the ‘more absolute’ category that cannot be waived or extended by
equitable considerations.” (quoting John R. Sand & Gravel Co., 552 U.S. at 133–34)).
Plaintiffs “bear[] the burden of establishing the court’s jurisdiction over [their]
claims by a preponderance of the evidence.” Trusted Integration, Inc. v. United States, 659
F.3d 1159, 1163 (Fed. Cir. 2011). This includes establishing that the complaint was
timely filed pursuant to the statute of limitations. Alder Terrace, Inc. v. United States, 161
F.3d 1372, 1376–77 (Fed. Cir. 1998). To determine jurisdiction, this Court generally
“must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw
all reasonable inferences in favor of the plaintiff.” Trusted Integration, 659 F.3d at 1163.
The Court is not limited to the pleadings, however, when a motion to dismiss disputes
3
jurisdictional facts. Freeman v. United States, 875 F.3d 623, 627 (Fed. Cir. 2017)
(“When . . . a motion to dismiss ‘challenges the truth of jurisdictional facts,’ the Court of
Federal Claims ‘may consider relevant evidence in order to resolve the factual
dispute.’” (quoting Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014))). This
Court “will rely on these matters [only] to the extent that they allow the court to
determine whether it has jurisdiction over this case.” Lechliter v. United States, 70 Fed.
Cl. 536, 543 (2006).
II. FACTUAL AND PROCEDURAL BACKGROUND
The Court begins with the facts as alleged in Mr. Jordan’s amended complaint
and related filings.2 Mr. Jordan served in the United States Army Reserves “in various
capacities” from early 1981 to late 2014. Am. Compl. ¶ 1. During that period, from
October 2, 2009, through October 27, 2014, he held the rank of lieutenant colonel.
Compl. at 1.
Between 2003 and 2008, Mr. Jordan served approximately four years and six
months of active duty at MacDill Air Force Base in Florida. Am. Compl. ¶ 15. During
this active-duty tour, Mr. Jordan was the subject of an investigation regarding a
“possible lodging fraud concerning plaintiff’s travel vouchers submitted incidental to
his continuous orders for the period May 1, 2004 through April 29, 2008.” Am. Compl.
¶ 16. Notwithstanding this allegation, Mr. Jordan avers that the investigation
concluded he was underpaid regarding his housing for this time period. Am. Compl.
¶¶ 22, 31. In February 2009, DFAS established a debt of $106,051.21 against Mr. Jordan
“for the period May 1, 2004 through April 29, 2008.” Am. Compl. ¶¶ 26–27. On July 10,
2009, “DFAS issued two debt notices” to Mr. Jordan “in the amount of $106,051.21.”
Am. Compl. ¶ 27. On October 7, 2009, Mr. Jordan “received a Leave and Earnings
Statement . . . revealing that a collection action was initiated in his pay records in the
amount of $750.00 per pay period for a travel debt of $106,051.21.” Am. Compl. ¶ 36. 3
2For the purpose of resolving the pending motion to dismiss, the facts alleged in a plaintiff’s
operative complaint are assumed to be true, and do not constitute factual findings by the Court.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Am. Bankers Ass’n v. United States, 932 F.3d
1375, 1380 (Fed. Cir. 2019).
3 The government, via an attachment to its response brief, explains that DFAS determined
Mr. Jordan’s debt followed an Army Criminal Investigation Command investigation, which
concluded that Mr. Jordan submitted dozens of monthly travel vouchers while on active duty to
claim “reimbursement for renting an apartment . . . supported by false receipts . . . while he
actually lived in a residence that he owned[.]” ECF No. 19-2, Defense Office of Hearings and
Appeals (“DOHA”) Appeal Decision of February 19, 2015 at 4. As a result of the vouchers Mr.
Jordan submitted, the government contends, the Army paid Mr. Jordan a total of $106,051.21 in
lodging expenses from May 2004 to April 2008, id. at 3; DFAS later audited Mr. Jordan’s travel
vouchers and established a debt against Mr. Jordan to remedy Mr. Jordan’s overpayment, id. at
4
To satisfy the debt, DFAS deducted money from each of Mr. Jordan’s military
paychecks from October 2009 through October 2014, withholding a total of $88,578.33,
at which point DFAS appears to have stopped deducting money. Am. Compl. ¶ 43
(“From October 9, 2009 thr[ough] October 27, 2014, DFAS . . . initiat[ed] collection
actions[.]”); Am. Compl. ¶ 57 (“From October 2, 20[0]9 thr[ough] October 27, 2014,
DFAS failed to deliver without deduction the basic pay to Plaintiff[,] which he was
entitled to for the performance of service during those periods.”); see also Compl. at 2
(“On October 2, 2009, DFAS created or established a debt . . . and over the course of the
next 5 plus years (through on or about November 27[,] 2014) unlawfully withheld
$88,578.33 from plaintiff’s current military pay[.]”).4
The gravamen of Mr. Jordan’s claim is found in his original complaint, in which
he alleges that DFAS established the debt “without specific legal authority” and
“unlawfully withheld $88,578.33 from plaintiff’s military pay in violation of 5 U.S.C.
§ 5514.” Compl. at 2. He also alleges that DFAS “is currently reporting this invalid debt
to the three major credit reporting agencies,” which “is an ongoing violation of 15
U.S.C. § 1692 subject to money mandated statutory penalties.” Compl. at 2.
Accordingly, Mr. Jordan requests that the Court: (1) “Order DFAS to release Plaintiff’s
military pay in the amount of $88,578.33”; (2) “Order DFAS to pay [a] statutory penalty
for each occurrence of reporting to the credit bureaus”; and (3) “Issue a writ of
Mandamus under 28 U.S.C. § 1651 to compel agency action in accordance with 5 U.S.C.
§ 5514, 37 U.S.C § 204 and provide Plaintiff judicial remedy concerning pay and
credit[.]” Compl. at 3.
In his amended complaint, Mr. Jordan asserts four causes of action in claiming he
is entitled to a return of the debt DFAS assessed against him. In particular, Mr. Jordan
alleges: (1) DFAS violated both the Military Pay Act, 37 U.S.C. § 204, and 37 U.S.C.
§ 1014 (“Payment date for pay and allowances”), by withholding money from Mr.
Jordan, Am. Compl. ¶¶ 54–58; (2) DFAS violated 37 U.S.C. § 1005 (“Army and Air
4. The Court includes this information merely to contextualize the origins of the debt at issue
and does not make any factual findings, or draw any legal conclusions, regarding the
circumstances surrounding Mr. Jordan’s debt. Cf. Pl. Reply at 7 (alleging that “[i]t is Plaintiff’s
sincere belief that the DOHA letter . . . has nothing to do with the issue at hand but was instead
provided to in some [w]ay taint the Plaintiff’s image and [/] or prejudice the Court against the
Plaintiff”).
4It is unclear why Mr. Jordan represented November 27, 2014 as the end date of the debt
collection in his complaint but listed October 27, 2014 as the end date in his amended complaint.
The Court suspects a typographical error in the original complaint — particularly given that Mr.
Jordan lists October 27, 2014 twice in his amended complaint — and proceeds with the
understanding that the date in the amended complaint is the correct one. This conclusion is
supported by the fact that the government, in a declaration submitted along with its motion to
dismiss, represents that DFAS collected the debt “from October 15, 2009 through October 29,
2014.” ECF No. 11-1, Declaration of Jeffrey Heiney, at 2–3.
5
Force: prompt payment required”) by collecting the debt, is currently in arrears to Mr.
Jordan, and owes Mr. Jordan interest, Am. Compl. ¶¶ 59–63; (3) DFAS used false
supporting documents to create Mr. Jordan’s debt, in violation of 10 U.S.C. § 1552(“Correction of military records: claims incident thereto”), Am. Compl. ¶¶ 64–67; and
(4) DFAS violated the federal claim collection standards outlined in 31 C.F.R. §§ 900–904
by reporting Mr. Jordan’s debt to credit bureaus and a federal agency, Am. Compl.
¶¶ 68–73. Mr. Jordan separately alleges that “DFAS violated 5 U.S.C. § 5514, by
initiating collection actions before complying with the due process requirements for the
statute” and “by deducting more than the maximum allowed [amount] of 15%.” Am.
Compl. ¶ 43.
In the alternative, Mr. Jordan requests that the Court transfer his case to the
United States District Court for the District of Columbia should the Court grant the
government’s motion to dismiss. Pl. Reply at 7.
III. THIS COURT LACKS JURISDICTION OVER MR. JORDAN’S CLAIM
PURSUANT TO 28 U.S.C. § 2501Mr. Jordan’s claim is time-barred because he filed his complaint long after this
Court’s statute of limitations had run. As noted above, this Court only has jurisdiction
over claims that are “filed within six years after such claim first accrues.” 28 U.S.C.
§ 2501.
A plaintiff’s claim is considered “filed” for the purposes of § 2501 when that
plaintiff files a complaint with this Court. RCFC 3 (“A civil action is commenced by
filing a complaint with the court.”). A claim accrues “against the government . . . ‘when
all the events have occurred which fix the liability of the Government and entitle the
claimant to institute an action.’” FloorPro, Inc. v. United States, 680 F.3d 1377, 1381 (Fed.
Cir. 2012) (quoting Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir. 2006)). The
question of “whether the pertinent events have occurred is determined under an
objective standard; a plaintiff does not have to possess actual knowledge of all the
relevant facts in order for the cause of action to accrue.” Id. at 1381 (quoting Fallini v.
United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995)). Accordingly, if a plaintiff files a claim
more than six years after the events fixing the government’s liability allegedly occurred,
this Court lacks jurisdiction over the claim and must dismiss it. To determine when Mr.
Jordan’s claim accrued for purposes of jurisdiction, this Court examines and accepts as
true the undisputed facts in Mr. Jordan’s complaint and amended complaint. See
Trusted Integration, 659 F.3d at 1163.
This Court determines that Mr. Jordan’s claim accrued — at the latest — on
October 9, 2009. Mr. Jordan’s suit, at its heart, and by its very terms, “seek[s] a reversal
of the DFAS[] decision regarding an alleged debt.” Am. Compl. at 1;5 see also Compl.
5 The introductory paragraph of Mr. Jordan’s amended complaint is unnumbered.
6
at 3 (requesting that this Court “order DFAS to release Plaintiff’s military pay in the
amount of $88,578.33”). Mr. Jordan represents that DFAS established that debt against
Mr. Jordan, and began collecting it, on or before October 9, 2009. See, e.g., Compl. at 2
(“On October 2, 2009, DFAS created or established a debt[.]”); Am. Compl. ¶ 43 (“From
October 9, 2009, thr[ough] October 27, 2014, DFAS . . . initiat[ed] collection
actions . . . .”); Am. Compl. ¶ 57 (“From October 2, 20[0]9 thr[ough] October 27, 2014,
DFAS failed to deliver without deduction the basic pay to Plaintiff . . . .”). Mr. Jordan
further concedes in his amended complaint that he was aware of the debt by October 9,
2009. Am. Compl. ¶ 36 (“On October 7, 2009, Plaintiff received a Leave and Earnings
Statement (“LES”) revealing that a collection action was initiated in his pay records in
the amount of $750.00 per pay period for a travel debt of $106,051.21[.]”); Am. Compl.
¶ 46 (referencing “substantial communication from the Plaintiff disputing the debt”
prior to October 2, 2009). In other words, by October 9, 2009, at the latest, “all the
events ha[d] occurred that fix[ed] the alleged liability of the government and entitle[d]
the claimant to institute an action.” Holmes v. United States, 657 F.3d 1303, 1317 (Fed.
Cir. 2011).6
Because the Court concludes that Mr. Jordan’s claim accrued on or before
October 9, 2009, Mr. Jordan was required to have filed suit on or before six years from
that date — i.e., on or before October 9, 2015 — for his suit to fall within this Court’s
statute of limitations. See 28 U.S.C. § 2501. Mr. Jordan filed his suit on November 20,
2020, Compl. at 1, more than eleven years after his claim accrued, and more than five
years after the statute of limitations had run.7 Accordingly, this Court lacks jurisdiction
over Mr. Jordan’s claim pursuant to 28 U.S.C. § 2501 and must dismiss this case,
including his amended complaint. The numerous contentions in Mr. Jordan’s amended
6 The conclusion that Mr. Jordan had all information necessary to file suit when DFAS
established the debt is strengthened by the fact that Mr. Jordan already has filed multiple
lawsuits on this issue. Am. Compl. ¶¶ 38–40; see also Am. Compl. ¶ 48 (“Plaintiff filed several
[inspector general] and congressional complaints”); Jordan v. Def. Fin. & Acct. Servs. (Jordan I),
2014 WL 4416010, at *7 (M.D. Fla. Sept. 5, 2014) (dismissing many of Mr. Jordan’s claims, filed
pursuant to the Administrative Procedure Act, after finding “that the relief [Mr.] Jordan
requests is. . . a refund of money he has paid towards his debt” and is thus “within the
jurisdiction of the Court of Federal Claims”); Jordan v. Def. Fin. & Acct. Servs. (Jordan II), 744 F.
App’x 692, 694 (11th Cir. 2018) (affirming a district court dismissal of the case Mr. Jordan filed
after Jordan I, again seeking a refund of the money Mr. Jordan paid DFAS, and noting that 28
U.S.C. § 1491 “requires that non-tort claims against the United States for amounts in excess of
$10,000 must be brought in the Court of Federal Claims”).
7Moreover, even if the Court were to conclude that the statute of limitations only began to run
as of the last alleged withdrawal from Mr. Jordan’s paycheck on October 27, 2014, see Am.
Compl. ¶¶ 43, 57, this Court would still lack jurisdiction over Mr. Jordan’s claim, as he still
would have had to file his current suit on or before October 27, 2020. 28 U.S.C. § 2501; see also
discussion, infra, Section III.F.1 (holding that the continuing claims doctrine does not save Mr.
Jordan’s claim).
7
complaint all stem from the debt that DFAS established against Mr. Jordan in 2009 and
thus his amended complaint — including all of his claims, no matter how framed —
cannot avoid the statute of limitations. Nevertheless, the Court specifically addresses
the four causes of actions as Mr. Jordan has alleged them in his amended complaint.
A. First Cause of Action — Alleged Violations of the Military Pay Act
In Mr. Jordan’s first cause of action, he alleges that the government violated the
Military Pay Act, 37 U.S.C. § 204.8 Am. Compl. ¶¶ 54–58. Specifically, Mr. Jordan
contends that: (1) 37 U.S.C. § 204 is a money-mandating statute, Am. Compl. ¶ 55;
(2) “[f]rom October 2, 20[0]9 thr[ough] October 27, 2014, DFAS failed to deliver without
deduction the basic pay to Plaintiff,” Am. Compl. ¶ 57; and (3) DFAS’s “failure to
deliver Plaintiff’s basic pay as scheduled is a legal wrong, which created an arrearage in
Plaintiff’s pay account and records, which continues to accrue,” Am. Compl. ¶ 58. As a
result, Mr. Jordan claims, he “is entitled to seek review of DFAS’[s] actions” and “order
DFAS to audit and reconcile Plaintiff’s pay records and account and release accrued
entitlements which have been withheld.” Id.As discussed above, the Tucker Act provides this Court with jurisdiction over
money-mandating claims. See, e.g., Roth, 378 F.3d at 1384. A money-mandating claim
seeks money from the government based on a statute that “can fairly be interpreted as
mandating compensation by the Federal Government for the damage sustained.”
Mitchell, 463 U.S. at 217 (quoting Testan, 424 U.S. at 400). Mr. Jordan is correct that
many provisions of the Military Pay Act are money-mandating, and this Court
generally possesses jurisdiction over Military Pay Act claims. See, e.g., James v. Caldera,
159 F.3d 573, 581 (Fed. Cir. 1998) (“As far as military personnel are concerned, 37 U.S.C.
§ 204 (1994) serves as a money-mandating statute.”); Antonellis v. United States, 723 F.3d
1328, 1331 (Fed. Cir. 2013) (“We have long recognized that the Military Pay Act
‘provides for suit in [the Court of Federal Claims] when the military, in violation of the
Constitution, a statute, or a regulation, has denied military pay.’” (quoting Dysart v.
United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004))).
Even if the Military Pay Act is money-mandating for the purposes of
Mr. Jordan’s claim, however, this Court still lacks jurisdiction over this cause of action
due to the applicable statute of limitations, 28 U.S.C. § 2501, and Mr. Jordan’s attempt to
reframe his claim in the terms of the Military Pay Act cannot change the fact that he
filed his claim outside of that statute of limitations. Mr. Jordan’s contention that DFAS
8 The Military Pay Act provides that active duty uniformed servicemembers “are entitled to the
basic pay of the pay grade to which assigned or distributed.” 37 U.S.C. § 204(a). Mr. Jordan
also argues that 37 U.S.C. § 1014 “establishes that amounts of basic pay . . . shall be paid on the
first day of the month beginning after the month during which the right to such compensation
accrues,” though he does not contend that 37 U.S.C. § 1014 is money-mandating. Am. Compl.
¶ 56.
8
must “release accrued entitlements,” Am. Compl. ¶ 58, for example, is simply another
way of challenging the debt DFAS assessed against Mr. Jordan in 2009. The Court thus
agrees with the government that Mr. Jordan’s first cause of action “ha[s] at [its] core the
allegation that the United States wrongfully took monies from Mr. Jordan’s military pay
during the period October 9, 2009 through October 27, 2014” and that “regardless of the
label, Mr. Jordan should have filed his complaint within six years” of the claim’s
accrual. Def. Reply at 2.
Accordingly, even if the Military Pay Act is money-mandating in the manner
Mr. Jordan asserts, this Court lacks jurisdiction over his first cause of action.
B. Second Cause of Action — Alleged Violation of 37 U.S.C. § 10059In Mr. Jordan’s second cause of action, he contends that 37 U.S.C. § 1005 “is a
money mandating statute which establishes that members of the Army and of the Air
Force shall be paid at such times that arrears will at no time be more than two
months[.]” Am. Compl. ¶ 60. Mr. Jordan also claims that “all DOD Components are
required to . . . pay interest payments when payments are made late,” that “DFAS is in
arrears to Plaintiff for the entitlements which accrued from October 1, 2009 through
October 27, 2014,” and that DFAS accordingly owes Mr. Jordan interest on the allegedly
invalid debt it withdrew from his paychecks. Am. Compl. ¶¶ 61–63.
The Court notes that 37 U.S.C. § 1005 may be money-mandating in some
circumstances, as Mr. Jordan contends, because the statute, on its face, requires the
government to pay money to servicemembers within a given timeframe. 37 U.S.C.
§ 1005 (“Members . . . shall be paid . . . .”) (emphasis added); see also Def. Reply at 2
(conceding that such “statute requires the military to pay service members” (emphasis
added)). Nevertheless, this is yet another attempt by Mr. Jordan to reframe his central
claim in terms of another statute; at bottom, it remains a challenge to the debt that
accrued in 2009 and thus falls outside of the applicable statute of limitations, see 28
U.S.C. § 2501, discussed supra.
The fact that Mr. Jordan frames this cause of action as an ongoing violation —
alleging that interest continues to accrue on a purported arrearage, Am. Compl. ¶ 62 —
does not provide this Court with jurisdiction. Interest can only accrue upon a principal
balance. Mr. Jordan argues that the principal balance in his case is the alleged
“arrearage” that arose when DFAS withdrew money from his paycheck. Am. Compl.
9Mr. Jordan titles this cause of action “Violation of Promp[t] Payment Act.” Am. Compl. at 18.
The Prompt Payment Act, however, is codified at 31 U.S.C. §§ 3901–3905 and provides timelines
for the government’s payment of money owed to federal contractors. While the Prompt
Payment Act does not cover military pay, Mr. Jordan does cite to 37 U.S.C. § 1005 (“Army, Air
Force, and Space Force: prompt payments required”), which provides military pay deadlines,
and the Court addresses his claim pursuant to that statute.
9
¶¶ 62–63; see also Pl. Reply at 5 (“The arrearage in this context would be akin to the
government having a valid debt against a debtor, the debt does not simply go away but
rather accrues interest and is thus subject to collection until either it is paid, or disposed
of[.]”). But the alleged arrearage would only arise if the debt DFAS established were
invalid — something the Court lacks jurisdiction to determine given the statute of
limitations. Because the Court lacks jurisdiction to consider Mr. Jordan’s claims
regarding the principal sum of the assessed debt, the Court also lacks jurisdiction to
consider Mr. Jordan’s claims for interest on that debt.
C. Third Cause of Action — Correction of Military Records
In Mr. Jordan’s third cause of action, he asks the Court to correct two forms that
he alleges DFAS wrongly relied upon in assessing the debt at issue. Am. Compl. ¶¶ 64–
67. Specifically, Mr. Jordan alleges that “there are two erroneous DD Form 139s in
Plaintiff[’]s military pay records, which were used to establish this invalid debt” and
that the placement of these “false supporting documents” in Mr. Jordan’s pay records
“is an error.”10 Am. Compl. ¶¶ 66–67. Mr. Jordan requests that the Court “direct that
these DD Form 139[]s be voided to correct Plaintiff’s pay account and record.” Am.
Compl. ¶ 67. As authority for this claim, Mr. Jordan cites 10 U.S.C. § 1552, which he
contends is money-mandating. Am. Compl. ¶ 65. The Court lacks jurisdiction over this
cause of action as well.
As is the case with Mr. Jordan’s first two causes of action, the statute of
limitations similarly bars the Court’s consideration of the validity of the DD Form 139s.
In that regard, the only purpose of Mr. Jordan’s challenge is to dispute the underlying
debt for which the government collected money from Mr. Jordan and that he contends
should be refunded to him. Am. Compl. ¶ 66 (citing “two erroneous DD Form
139s . . . which were used to establish this invalid debt”); Am. Compl. ¶ 67 (urging the
Court to “direct that these DD Form 139[]s be voided to correct Plaintiff’s pay
account”). As discussed above, however, this Court lacks jurisdiction over Mr. Jordan’s
central claim regarding the debt at issue. Because this cause of action is merely another
attempt to challenge that debt, the statute of limitations bars consideration of this cause
of action. 28 U.S.C. § 2501.
Moreover, the Court lacks the power to correct Mr. Jordan’s records independent
of a valid, timely Tucker Act claim. Indeed, this Court only has the power to correct
military records when doing so “as an incident of and collateral to” a monetary
10Neither Mr. Jordan nor the government specifies the purpose of DD Form 139, but the
Department of Defense’s Forms Management Program indicates that DD Form 139 is entitled
“Pay Adjustment Authorization.” DoD Forms Management Program, Wash. Headquarters Serv.,
https://www.esd.whs.mil/Directives/forms/dd0001_0499 (last updated Mar. 8, 2022). The
Court accordingly proceeds under the assumption that the DD Form 139s Mr. Jordan references
are involved in the determination and revision of military pay.
10
judgment. 28 U.S.C. § 1491(a)(2); see also Piotrowski v. United States, 722 F. App’x 982,
985 (Fed. Cir. 2018) (“[T]he Court of Federal Claims correctly held that it could not
provide equitable relief to correct [Plaintiff]’s military records because the requested
relief was not tied to a money judgment.”); Sergent’s Mech. Sys., Inc. v. United States, 157
Fed. Cl. 41, 46 (2021) (“The United States Court of Federal Claims does not have general
authority to issue injunctive relief.”). This Court, however, lacks jurisdiction over the
only money judgment that could possibly be related to modifying Mr. Jordan’s records
— i.e., a finding that the government improperly assessed a $88,578.33 debt against Mr.
Jordan. See Am. Compl. ¶ 66 (alleging that the “two erroneous DD Form 139s . . . were
used to establish this invalid debt”). Absent a money judgment, this Court lacks the
ability to correct Mr. Jordan’s military records.
Mr. Jordan’s attempt to invoke 10 U.S.C. § 1552, which he contends is
money-mandating, Am. Compl. ¶ 65, does not circumvent this jurisdictional barrier.
The statute is not independently money-mandating. Martinez v. United States, 333 F.3d
1295, 1315 (holding that “section 1552 is not the ‘money-mandating’ statute that gives
rise to the cause of action that provides the basis for a Tucker Act suit in the Court of
Federal Claims”);11 McCord v. United States, 943 F.3d 1354, 1359 (Fed. Cir. 2019) (noting
that 10 U.S.C. § 1552 “itself is not a ‘money-mandating’ statute” and is money-
mandating only “if a claimant was improperly denied benefits but became entitled to
them under other provisions of law”). Indeed, 10 U.S.C. § 1552 only permits this Court
to review decisions of various corrections boards; it does not provide an independent
jurisdictional basis upon which this Court can enter a monetary judgment. See Porter v.
United States, 163 F.3d 1304, 1311 (Fed. Cir. 1998) (“Section 1552 of title 10 gives the
military secretaries power to correct military records using civilian boards.” (emphasis
added)); Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003) (“If an officer elects
to pursue a remedy before the Corrections Board, after the Board renders a final
decision, the officer may effectively obtain review of that decision in the Court of
Federal Claims by filing suit under the Tucker Act.”); Dysart, 369 F.3d at 1315 (“The
Corrections Board statute, 10 U.S.C. § 1552, provides for correction of military
records . . . and for judicial review of the Board’s decision.”). Accordingly, 10 U.S.C.
§ 1552 does not independently provide this Court with jurisdiction to correct
Mr. Jordan’s records.
In his response brief, Mr. Jordan argues that jurisdiction exists because he
submitted an application for correction of his records to the Army Review Boards
Agency (“ARBA”) on June 6, 2021 — but that was more than six months after he
11Cf. Martinez, 333 F.3d at 1315 n.4 (listing the following two exceptions to the general rule that
10 U.S.C. § 1552 is not money-mandating, neither of which is at issue here: “if the plaintiff
should have been retired for disability but the Correction Board illegally failed to so find,” and
“when the correction board has granted relief and the service member seeks to enforce or
challenge the implementation or scope of the remedial order” (citations omitted)).
11
submitted his complaint. Pl. Resp. at 3. Mr. Jordan asserts that “it is within the
jurisdiction of this court to review the decision by the board,” and, “[g]iven that a
decision by the board has not occurred . . . this count cannot be time-barred because
[the] statute of limitations cannot begin to run until . . . the board renders their
decision.” Id. at 4. Mr. Jordan further asserts that “it is within the purview of this Court
to consider the matter” and that the Court can “rule in Plaintiff’s favor if the evidence
warrants such.” Id.While Mr. Jordan is correct that this Court has jurisdiction to review decisions of
corrections boards, see, e.g., Dysart, 369 F.3d at 1315, there is no such decision before the
Court for review. Mr. Jordan concedes as much. Pl. Resp. at 4. Mr. Jordan’s assertion
in his response brief that he submitted an application for records correction does not
provide the Court with jurisdiction over his third cause of action.
Perhaps anticipating this, Mr. Jordan asks the Court in his response brief to “stay
this count pending the outcome of the board’s decision.” Pl. Resp. at 4. The Court
declines to do so. “[T]he power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants. How this can best be done calls
for the exercise of judgment, which must weigh competing interests[.]” Landis v. N. Am.
Co., 299 U.S. 248, 254–55 (1936). When deciding a motion to stay, “[t]he Court must
consider judicial efficiency and economy, determining whether a stay will resolve
relevant issues and simplify the case.” Braswell v. United States, 155 Fed. Cl. 148, 150
(2021) (citing Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191,
1196 (11th Cir. 2009)). The Court has considered the competing interests in this case
and concludes that no stay is warranted. Mr. Jordan has been actively litigating these
issues in various fora for years, see Am. Compl. ¶¶ 38–39, and had ample time to file an
application for records correction. Moreover, the Court fails to see how granting this
stay would “resolve relevant issues” or “simplify the case” given that no board decision
can change this Court’s determination that the statute of limitations precludes
Mr. Jordan’s central claim for compensation. In short, granting the requested stay
would only delay the Court’s inevitable decision that any and all of Mr. Jordan’s claims
relating to the debt at issue are time-barred.
Because Mr. Jordan’s third cause of action is untimely, seeks a correction of
records that is not “incident of and collateral to” a money judgment, 28 U.S.C.
§ 1491(a)(2), and because Mr. Jordan does not cite any other money-mandating
statutory authority, the Court lacks jurisdiction over this cause of action.
D. Fourth Cause of Action — Alleged Violation of the Federal Claim
Collection Standards
In Mr. Jordan’s fourth cause of action, he alleges that the government violated
the federal claim collection standards delineated in 31 C.F.R. §§ 900–904. Am. Compl.
12
¶ 71 (“On April 6, 2015, DFAS violated 31 [C.F.R.] [§]§ 900–904 . . . by reporting an
invalid debt to the credit bureaus without providing Plaintiff with the required
statutory due process, required by federal statutes and regulations.”); Am. Compl. ¶ 72
(alleging that “[i]n January 2020, Plaintiff discovered that DFAS had reported to the
Department of Housing and Urban Development’s Credit Alert Interactive Voice
Response System (CAIVRS) that Plaintiff was delinquent on a federal debt” and that
“DFAS’[s] failure to provide the required due [process] prior to reporting this invalid
debt in this manner, is a violation of 31 [C.F.R.] [§]§ 900–904”). Mr. Jordan asserts that
the federal claims collection standards are money-mandating, Am. Compl. ¶ 69, and
that, as a result of these alleged violations, he “is entitled to seek review of DFAS[’s]
actions . . . and direct that DFAS promptly refund any money ultimately found not to
have been owed to the Government,” Am. Compl. ¶ 73.12
This Court lacks jurisdiction over Mr. Jordan’s fourth cause of action because the
federal claim collection standards are not money-mandating. As discussed above, the
Tucker Act does not provide plaintiffs a substantive cause of action. Fisher, 402 F.3d at
1172. In money-mandating claims, plaintiffs must identify a law that “can fairly be
interpreted as mandating compensation by the Federal Government for the damages
sustained.” Mitchell, 463 U.S. at 216. The Court has reviewed 31 C.F.R. §§ 900–904, and
nowhere do the regulations grant Mr. Jordan “expressly or by implication[] a right to be
paid a certain sum.” Eastport S.S. Corp., 372 F.2d at 1007. In fact, if anything, the
provisions expressly preclude a money-mandating characterization:
The standards in this chapter do not create any right or
benefit, substantive or procedural, enforceable at law or in
equity by a party against the United States, its agencies, its
officers, or any other person, nor shall the failure of an agency
to comply with any of the provisions of parts 900–904 of this
chapter be available to any debtor as a defense.
12See also Compl. at 2 (“Additionally[,] DFAS is currently reporting this invalid debt to the three
major credit reporting agencies in violation of 15 U.S.C. § 1692; The Fair Credit Reporting
Act. . . . [T]he fact that . . . the [debt] is being reported to the three credit bureaus [is evidence
that] this is an ongoing violation of 15 U.S.C. § 1692 subject to money mandated statutory
penalties.”). Mr. Jordan appears to have abandoned this alleged violation of the Fair Credit
Reporting Act (“FCRA”) in his amended complaint and subsequent filings, perhaps because the
government (correctly) notes in its motion to dismiss that the FCRA “provides for civil remedies
against debt collectors, [but] not the United States, in the district courts.” Def. Mot. at 6 (citing
Dainja El v. United States, 2017 WL 4639364, at *2 (Fed. Cl. Aug. 23, 2017)). To the extent that Mr.
Jordan has not abandoned this claim, the Court finds it lacks jurisdiction over it and grants the
government’s motion to dismiss this claim as well. Dainja El, 2017 WL 4639364, at *2 (finding
that 15 U.S.C. § 1692 “do[es] not provide a basis for jurisdiction in this Court”).
13
31 C.F.R. § 900.8; see also Confederated Tribes & Bands of The Yakama Nation v. United
States, 89 Fed. Cl. 589, 615 n.39 (2009) (concluding that “31 C.F.R. § 900.8 disallows
private causes of action enforceable against the United States for failure to comply with
31 C.F.R. pts. 900–04”); Zandford v. S.E.C., 2012 WL 628002, at *4 (D. Del. Feb. 27, 2012)
(“[T]he regulations prohibit the Debtor from using these agency operating procedures
as either a sword or a shield.” (quoting In re Zandford, 2006 WL 2036990 (Bankr. D. Del.
July 18, 2006))); United States v. Warfield, 2015 WL 1469545, at *4 (E.D. Mich. Mar. 30,
2015) (no cause of action for government’s alleged failure “to comply with the Federal
Claims Collection Standards, 31 C.F.R. § 900, et seq.”); Care Origin, Inc. v. United States
Dep’t of Health & Hum. Servs., 2015 WL 6163577, at *3 (E.D. Mich. Oct. 20, 2015) (“[A]s
Federal Defendants correctly point out, the Federal Claims Collection Act does not
provide for a private right of action against the United States.”).
Because 31 C.F.R. §§ 900–904 is not money-mandating, the Court lacks
jurisdiction over Mr. Jordan’s fourth cause of action. Cf. Perry, 149 Fed. Cl. at 17
(“[Plaintiff] cannot invoke this Court’s jurisdiction to adjudicate his grievances merely
by invoking Tucker Act language, such as ‘contract,’ ‘taking,’ ‘damages,’ or ‘illegal
exaction.’”).
E. Illegal Exaction Claims
Illegal exaction claims are those alleging that “the [g]overnment has the citizen’s
money in its pocket.” Eastport S.S. Corp., 372 F.2d at 1008 (quoting Clapp v. United States,
127 Ct. Cl. 505, 512 (1954)); see also Aerolineas Argentinas v. United States, 77 F.3d 1564,
1572 (Fed. Cir. 1996) (describing illegal exaction claims as claims “made for recovery of
monies that the government has required to be paid contrary to law”). In order “[t]o
allege an illegal exaction within this Court’s subject-matter jurisdiction, a complaint
must contain nonfrivolous factual allegations that the plaintiff is entitled to recover
money for the government’s purported illegal action.” Gulley v. United States, 150 Fed.
Cl. 405, 418 (2020). An illegal exaction claim need not identify a money-mandating
statute. Boeing Co., 968 F.3d at 1384 (reviewing the illegal exaction jurisprudence of the
United States Court of Appeals for the Federal Circuit, this Court’s immediate appellate
court, and concluding that the Court of Federal Claims can “assume[] jurisdiction over
statutory illegal exaction claims with no regard for whether the statutes [a]re ‘money-
mandating’”); see also Perry, 149 Fed. Cl. at 32 (holding that “there is no basis to engraft
money-mandating requirements onto illegal exaction claims”).
Mr. Jordan repeatedly describes his causes of action as money-mandating. Am.
Compl. ¶ 55 (first cause of action); Am. Compl. ¶ 60 (second cause of action); Am.
Compl. ¶ 65 (third cause of action); Am. Compl. ¶ 69 (fourth cause of action); Compl. at
2 (describing “an ongoing violation . . . subject to money mandated statutory
penalties”). But this Court’s “jurisdictional determination is not governed by the
plaintiff’s characterization of its claims.” Perry, 149 Fed. Cl. at 13. Accordingly, the
Court has reviewed the many allegations in Mr. Jordan’s complaint and amended
14
complaint through the lens of illegal exaction and concludes that some of his allegations
generously may be construed as illegal exaction claims.13 This characterization,
however, does not change the Court’s conclusion that it lacks jurisdiction over
Mr. Jordan’s amended complaint due to the statute of limitations, as explained above.
See 28 U.S.C. § 2501. The applicable statute of limitations makes no exceptions for
illegal exaction claims even where otherwise properly pled. Adera v. United States, 155
Fed. Cl. 553, 558 (2021) (dismissing illegal exaction claim for, inter alia, lack of
jurisdiction pursuant to 28 U.S.C. § 2501).
For example, taking as true Mr. Jordan’s assertions and assuming only for the
sake of deciding jurisdiction that DFAS indeed established the debt in violation of
37 U.S.C. § 1007, see Compl. at 2, Mr. Jordan still alleges that this violation occurred
when the debt was established in October 2009 — more than six years before he filed his
complaint. Compl. at 2; 28 U.S.C. § 2501. Similarly, even taking as true Mr. Jordan’s
claim that DFAS violated 5 U.S.C. § 5514 up to and including October 27, 2014, Am.
Compl. ¶ 43, this Court would lack jurisdiction because Mr. Joran filed his complaint
more than six years after October 27, 2014. Compl. at 1; 28 U.S.C. § 2501.
Accordingly, the Court finds that it lacks jurisdiction over Mr. Jordan’s central
claim and subsidiary causes of action no matter how characterized.
F. Various Exceptions to 28 U.S.C. § 2501The Federal Circuit recognizes several exceptions to the six-year statute of
limitations in 28 U.S.C. § 2501. Mr. Jordan asserts many of them in an attempt to save
his case. None of those exceptions, however, apply here to preclude the application of
the statute of limitations to Mr. Jordan’s claims.
13See, e.g., Compl. at 2 (“DFAS . . . alleg[ed] that the debt was created under the authority [of]
37 U.S.C. § 1007, but the debt and collection could not have been established under this
statute[.]”); id. (“On October 2, 2009, DFAS created or established a debt without specific legal
authority and over the course of the next 5 plus years (through on or about November 27[,]
2014) unlawfully withheld $88,578.33 from plaintiff’s current military pay in violation of 5
U.S.C. § 5514”); Am. Compl. ¶ 26 (“DFAS violated Volume 7 Chapter 50 of Department of
Defense Financial Management Regulation policy and improperly established an invalid
debt[.]”); Am. Compl. ¶ 41 (“DFAS did not adhere to the guidance in [Department of the Army
Pamphlet] 27-50-309 and violated Volume Chapter 37 of the [Department of Defense Financial
Management Regulation], which . . . resulted in the creation of a debt without legal merit.”);
Am. Compl. ¶ 43 (“From October 9, 2009 thr[ough] October 27, 2014, DFAS violated 5 U.S.C.
§ 5514, by initiating collection actions before complying with the due process requirements for
the statute[.]”).
15
1. The Continuing Claims Doctrine
Mr. Jordan contends that the continuing claims doctrine pushes at least part of
his claim to within the statute of limitations. Am. Compl. ¶¶ 57–58 (claiming that
DFAS’s “withholding of the Plaintiff’s basic pay creates a continuing arrearage which
accrues the first of each month” and “continues to accrue”); Am. Compl. ¶ 62 (claiming
that “interest began to accrue” years ago on the money DFAS allegedly owes to
Mr. Jordan and “each month a new interest amount accrues creating a new
entitlement”); Pl. Reply at 1 (“Considering the fact that violations have continued
throughout the statutory period relating to the underlying debt, there is no way that the
Plaintiff’s complaint can be time barred.”); Pl. Reply at 5 (“[A]s long as there is an
arrearage there is a continuing violation.”).
The continuing claims doctrine allows a plaintiff to include in its allegations
some events that occurred outside the six-year statute of limitations if the plaintiff
“ha[s] pled a series of distinct events — each of which gives rise to a separate cause of
action — as a single continuing event.” Ariadne Fin. Servs. Pty. Ltd v. United States, 133
F.3d 874, 879 (Fed. Cir. 1998). In such a case, “the continuing claims doctrine operates
to save later arising claims even if the statute of limitations has lapsed for earlier
events.” Id. For the doctrine to apply to save an otherwise untimely claim, the claim
must be “inherently susceptible to being broken down into a series of independent and
distinct events or wrongs, each having its own associated damages.” Wagstaff v. United
States, 105 Fed. Cl. 99, 112 (2012) (quoting Tamerlane, Ltd. v. United States, 550 F.3d 1135,
1145 (Fed. Cir. 2008)). The doctrine does not apply, however, to claims “based upon a
single distinct event, which may have continued ill effects later on.” Brown Park Ests.-
Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997); see also Ariadne Fin.
Servs., 133 F.3d at 879 (“[T]he continuing claims doctrine does not apply to a claim
based on a single distinct event which has ill effects that continue to accumulate over
time.”).
Case law draws sharp boundaries around the doctrine’s application. In Hart v.
United States, 910 F.2d 815 (Fed. Cir. 1990), for example, the Federal Circuit held that the
doctrine did not apply to a military widow who sought monthly ongoing survivor
benefits to which she was legally entitled because she waited more than six years to file
her claim. Id. at 816. In that case, the government was required by statute to notify the
plaintiff of her husband’s decision to not participate in the plan; the government’s
failure to so notify the plaintiff “automatically enrolled” her husband in the plan and
entitled the plaintiff to monthly ongoing financial benefits beginning the day after her
husband died. Id. at 818. The plaintiff argued that she had “a new claim each month,”
id., but she waited more than six years to file suit, id. at 816. As a result, the Federal
Circuit held that the statute of limitations barred her claim, and the continuing claims
doctrine did not save her claim for ongoing monthly benefits — despite her legal
entitlement to them — because “all events fixing the government’s liability to his
widow had occurred” the day after her husband died. Id. at 818.
16
Similarly, in Davis v. United States, 550 F. App’x 864 (Fed. Cir. 2013), the Federal
Circuit held that the continuing claims doctrine did not save the claim of a discharged
Army servicemember who sought ongoing periodic payments stemming from an
allegedly unlawful discharge but who filed suit 20 years after the discharge occurred.
Id. at 865. In that case, the Federal Circuit characterized the fact that the plaintiff, Mr.
Davis, “continue[d] to argue the merits of the alleged wrongful discharge as the basis
for the relief sought” as “an apparent admission that the discharge initiated the claim.”
Id. at 866.
In contrast, in Wells v. United States, 420 F.3d 1343 (Fed. Cir. 2005), the Federal
Circuit held that the continuing claims doctrine saved the claim of a Naval retiree who
challenged monthly deductions from his retirement pay, alleging that each deduction
constituted a separate constitutional violation. Id. at 1344, 1346. In that case, the
plaintiff, Mr. Wells, was a retired Navy servicemember who was convicted on
drug-related charges a year after retiring. Id. at 1344. In addition to being sentenced to
prison, Mr. Wells was ordered to pay a cost-of-incarceration fine, which the government
deducted from his monthly retirement pay. Id. More than six years after the fine was
first imposed, Mr. Wells filed suit, alleging that the monthly deductions exceeded the
withholding limit of 15% of disposable income specified in 5 U.S.C. § 5514. Id. at 1345.
More specifically, he alleged “that 5 U.S.C. § 5514 [wa]s violated each month” such that
each monthly deduction constituted an independent statutory violation. Id. at 1346–47.
The Federal Circuit applied the continuing claims doctrine: “Wells’ claim can be broken
down into a series of independent and distinct wrongs or events — deducting more
than 15% of Wells’ retirement pay — each such wrong or event having its own
associated damages.” Id. at 1347. The Federal Circuit did not hold that Mr. Wells was
entitled to challenge the entire amount of the penalty; instead, the Federal Circuit held
only that the Court of Federal Claims had jurisdiction over “those claims accruing
within six years of the date [Mr. Wells] filed suit in the trial court.” Id. at 1347–48.
The continuing claims doctrine does not save Mr. Jordan’s amended complaint.
As discussed above, Mr. Jordan’s central claim that DFAS established an improper debt
accrued at latest in October 2009, when DFAS had established the debt. Mr. Jordan
received notice of the collection action and monthly withholdings from DFAS, and
DFAS began withholding money from Mr. Jordan’s pay. Compl. at 2; Am. Compl.
¶¶ 36, 57. At that point, all the events had occurred “that fix[ed] the alleged liability of
the government” regarding the validity of the debt DFAS established. Holmes, 657 F.3d
at 1317. Mr. Jordan’s claim disputing the validity of the DFAS debt more closely
resembles the claim at issue in Davis than the claim at issue in Wells; just as Mr. Davis
“continue[d] to argue the merits of the alleged wrongful discharge as the basis for the
relief sought, an apparent admission that the discharge initiated the claim,” Davis, 550
F. App’x at 866, Mr. Jordan continues to attempt to litigate the validity of the DFAS
debt, Am. Compl. ¶¶ 26, 57, 66. In light of the Federal Circuit’s having declined to
17
apply the continuing claims doctrine to Mr. Davis’s claim, this Court cannot apply it to
save Mr. Jordan’s claims here.
Moreover, even if Mr. Jordan’s claims somehow were comparable to those at
issue in Wells, Mr. Jordan alleges repeatedly that the last day DFAS deducted any
money from his pay was October 27, 2014. Am. Compl. ¶¶ 43, 57, 61. Thus, even if Mr.
Jordan were correct that each pay deduction constituted a separate statutory violation,
the statute of limitations governing a claim related to the last pay deduction would
have run six years after October 27, 2014 — specifically, on October 27, 2020. See 28
U.S.C. § 2501. But, as noted above, Mr. Jordan filed his complaint after that, on
November 20, 2020. See Compl. at 1.
2. The Accrual Suspension Rule
Mr. Jordan argues that the accrual suspension rule preserves his claim despite
the statute of limitations. Pl. Resp. at 1 (“Also under the Accrual Suspension Rule
where the government has undertaken acts of concealment of material facts, the statute
of limitation[s] cannot begin to accrue, until those facts are made known to the
aggrieved party.”). Specifically, Mr. Jordan claims that his amended complaint contains
“violations” that “occurred within the six-year window” and “came to light during the
statutory period,” id., and that the government “concealed the existence of documents
in [Mr. Jordan’s] records that needed correcting and [Mr. Jordan] did not know of their
existence until February 2016,” id. at 4. Mr. Jordan makes similar allegations of
concealment in his amended complaint. Am. Compl. ¶ 40 (“In late January 2016,
Plaintiff began receiving information pursuant to Rule 26 of the Federal Rules of Civil
Procedure . . . reveal[ing] that Defendants had undertaken a coordinated cover up
concealing material facts making inherently unknowable that certain claims or causes of
action existed.”); Am. Compl. ¶¶ 46–54 (“History of Actions to Conceal Material Facts
of Invalid Debt”).
The accrual suspension rule delays a claim’s accrual date “until the claimant
knew or should have known that the claim existed.” Martinez, 333 F.3d at 1319; see also
Young, 529 F.3d at 1385 (“It is a plaintiff’s knowledge of the facts of the claim that
determines the accrual date.”). To invoke the accrual suspension rule, a plaintiff must
show either: (1) that the government concealed its actions such that the plaintiff was
unaware of the actions; or (2) that the injury was “‘inherently unknowable’ at the
accrual date.” Martinez, 333 F.3d at 1319 (quoting Welcker v. United States, 752 F.2d 1577,
1580 (Fed. Cir. 1985)).
The Federal Circuit has long held that this “rule is strictly and narrowly
applied.” Welcker, 752 F.2d at 1580. For example, in Martinez v. United States, 333 F.3d
1295 (Fed. Cir. 2003), the Federal Circuit held that the accrual suspension rule did not
save the claim of a discharged Army Reserve officer who brought suit in the Court of
Federal Claims regarding his discharge more than six years after his discharge occurred
18
but less than six years after new evidence regarding the discharge came to light. Id. at
1300, 1319. The Federal Circuit rejected Mr. Martinez’s argument that his claim’s
accrual should have been suspended until the date that the new evidence concerning
his claim came to light, holding:
Mr. Martinez was not unaware of the existence of his injury
and the acts giving rise to his claim. As of the date of
discharge from active duty, he knew that he had been
discharged and, as far as he was concerned, his discharge had
been unlawfully procured. Nothing about [the new evidence]
disclosed the existence of a claim of which he was previously
unaware. The statement simply provided him with additional
ammunition with which to pursue the claim.
Id. at 1319 (emphasis added).
In contrast, the Federal Circuit applied the accrual suspension rule in Holmes v.
United States, 657 F.3d 1303 (Fed. Cir. 2011). In that case, the plaintiff-appellant,
Mr. Holmes, had reached several settlement agreements — including one in 1996 and
another in 2001 — with the Navy regarding various employment disputes. Id. at 1306–
08. In 2006, Mr. Holmes learned when he requested copies of his personnel files that the
Navy had violated the terms of the 1996 agreement. Id. at 1308. In 2009, Mr. Holmes
brought suit in this Court, alleging that he was unable to obtain employment because
the Navy violated the terms of the 1996 and 2001 agreements. Id. The Court granted
the government’s motion to dismiss, holding, among other things, that Mr. Holmes was
on “inquiry notice” of the Navy’s alleged violations as early as 1999 for the 1996
agreement, because at that time he had been unable to obtain employment and
“believed this was due to the Navy’s breach.” Id. at 1318.
On appeal before the Federal Circuit, Mr. Holmes argued that the Navy’s alleged
breach was “inherently unknowable.” Id. at 1318. The Federal Circuit noted that the
“concealed or inherently unknowable” test contains “an intrinsic reasonableness
component.” Id. at 1320 (“An example of [an inherently unknowable injury] would be
when defendant delivers the wrong type of fruit tree to plaintiff and the wrong cannot
be determined until the tree bears fruit. In this situation the statute will not begin to
run until plaintiff learns or reasonably should have learned of his cause of action.”
(alteration in original) (quoting Japanese War Notes Claimants Association v. United States,
373 F.2d 356, 359 (Ct. Cl. 1967))). The Federal Circuit held that the accrual suspension
rule saved Mr. Holmes’s claim because his complaint alleged facts relating to, among
other things, a statement the Navy sent to a prosecutor’s office in July 2001 that the
Navy had begun performing the 1996 agreement. Id. at 1321. The Federal Circuit held
that under the circumstances, it was reasonable for Mr. Holmes “to conclude that the
Navy’s execution of the 1996 agreement, along with its partial performance thereof,
19
could have provided the basis” for Mr. Holmes to believe that the Navy had performed
the 1996 agreement. Id. at 1322.
The accrual suspension rule cannot save Mr. Jordan’s claim because he fails to
allege facts demonstrating either government concealment or that his injury was
inherently unknowable. See Martinez, 333 F.3d at 1319. Regarding concealment, while
Mr. Jordan makes conclusory allegations of an ongoing government coverup, Am.
Compl. ¶¶ 52–54,14 his amended complaint makes plain that the government did not
conceal the existence of Mr. Jordan’s debt or the government’s collection process, Am.
Compl. ¶¶ 16–35 (describing Mr. Jordan’s participation in a years-long process of
investigating his alleged lodging fraud and establishing the debt); Am. Compl. ¶ 36
(noting that Mr. Jordan received written notice of the “collection action [being] initiated
in his pay records” on October 7, 2009).
Mr. Jordan’s claims also fail the “inherently unknowable” test. Martinez, 333 F.3d
at 1319. Mr. Jordan contends that “there is no way that Plaintiff could have known that
a claim for the correction of records was needed” because the government “concealed
the existence of documents” about which Mr. Jordan “did not know . . . until February
2016.” Pl. Resp. at 4. The Federal Circuit, however, has held that “[i]t is a plaintiff’s
knowledge of the facts of the claim that determines the accrual date.” Young, 529 F.3d at
1385 (emphasis added). Here, Mr. Jordan has been aware of the debt, and has been
actively disputing its validity, for years (as early as July 10, 2009). See Am. Compl.
¶¶ 16–35; see also Am. Compl. ¶ 46 (referencing “substantial communication from the
Plaintiff disputing the debt” prior to October 2, 2009). This is not a case, as in Holmes,
where the substance of the plaintiff’s claim was reasonably unknowable until certain
facts came to light. 657 F.3d at 1322. Mr. Jordan alleges instead a situation analogous to
that of Martinez, in which new facts arise related to, and in addition to, the facts
establishing the claim (and regarding which Mr. Jordan has long been aware). 333 F.3d
at 1319 (“Mr. Martinez was not unaware of the existence of his injury and the acts
giving rise to his claim. . . . The acts of alleged fabrication may have contributed to
Mr. Martinez’s injury, but the fact of his injury was never unknown to him.” (emphasis
added)). Just as the Federal Circuit rejected Mr. Martinez’s accrual suspension
argument in that case, this Court rejects Mr. Jordan’s argument here.
G. Request to Transfer
Mr. Jordan’s reply brief contains a request, in the alternative, to transfer this case
to “[t]he United States District Court, District of Columbia, under the authority of 28
14Mr. Jordan alleges that “[b]ased on the Rule 26 [d]isclosures [from Mr. Jordan’s 2015 lawsuit
in the Middle District of Florida,] Defendants are still concealing material facts relevant to the
establishment and collection of the debt,” Am. Compl. ¶ 52, and that “[t]he most disturbing
aspect of this case is that now the Department of Justice is a part of this cover up,” Am. Compl.
¶ 54.
20
U.S.C. § 1631[.]” Pl. Reply at 7. Because Mr. Jordan’s case does not meet the standards
for transfer, the Court denies Mr. Jordan’s request.
A court may transfer a case over which it lacks jurisdiction in particular
circumstances:
Whenever a civil action is filed in a court . . . and that 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.
28 U.S.C. § 1631 (emphasis added).
In other words, “the Court ‘shall’ transfer an action to another federal court
when: (1) the transferring court finds it lacks jurisdiction; (2) the proposed transferee
court is one in which the case could have been brought at the time it was filed; and
(3) the transfer is in the interest of justice.” Space Expl. Techs. Corp. v. United States, 144
Fed. Cl. 433, 445 (2019).
The statute does not permit this Court to transfer Mr. Jordan’s case because no
proposed transferee court, including the one Mr. Jordan suggests, would have had
jurisdiction over Mr. Jordan’s claims at the time he filed his case. As discussed above,
the heart of all of Mr. Jordan’s claims and counts is the refund he seeks in the amount of
$88,578.33. See, e.g., Compl. at 2. But “the Court of Federal Claims has exclusive
jurisdiction over claims for monetary damages against the United States amounting to
more than $10,000.” Philbert v. United States, 779 F. App’x 733, 734–35 (Fed. Cir. 2019)
(emphasis added); see also Henderson v. United States, 152 Fed. Cl. 460, 469 (2021) (“[T]he
Court of Federal Claims has exclusive jurisdiction over claims in excess of $10,000 that
arise under the Tucker Act.”). This Court thus provides the sole venue for Mr. Jordan’s
claims, assuming they are properly and timely pled. Indeed, other district courts have
dismissed Mr. Jordan’s previous cases, which sought a refund of the same money he
seeks in this case, because such claims belong in this Court.15 Accordingly, this Court
finds that transfer pursuant to 28 U.S.C. § 1631 would be improper here because no
federal district court would have jurisdiction to hear any of Mr. Jordan’s claims
regarding the sums at issue.
15 See cases cited supra note 6.
21
Even if Mr. Jordan’s amended complaint could be construed to seek something
other than a monetary refund — a contention this Court rejects16 — Mr. Jordan’s claim
(and his subsidiary causes of action) would be time-barred in other courts for all of the
reasons explained supra. See 28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of
title 41, every civil action commenced against the United States shall be barred unless
the complaint is filed within six years after the right of action first accrues.”).17
Finally, if Mr. Jordan were to attempt to bring his claims in district court, such
claims likely would be barred by collateral estoppel in any event. See Jordan II, 744 F.
App’x at 694 (“We agree with the district court’s conclusion that Counts I–III, V, and VII
were barred by the collateral estoppel doctrine. These claims attempted to relitigate the
unappealed prior judgment in [Jordan I].”).
For the foregoing reasons, the Court will not transfer Mr. Jordan’s case to the
district court.
CONCLUSION
For the above reasons, the Court GRANTS defendant’s motion to dismiss.
Plaintiff’s complaint is DISMISSED for lack of subject-matter jurisdiction pursuant to
RCFC 12(b)(1).
The clerk is directed to enter JUDGMENT accordingly.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
16Again, all of Mr. Jordan’s claims have at their heart a request to refund the $88,578.33 debt.
Am. Compl. ¶¶ 58, 62, 67, 73. Mr. Jordan himself characterizes his suit this way. Pl. Resp. at 2
(“On November 20, 2020, Plaintiff filed this action for the improper withholding of his military
pay[.]” (emphasis added).
17Chapter 71 of Title 41 of the United States Code references the Contract Disputes Act, Pub. L.
No. 95-563, 92 Stat. 2383 (1978) (codified at 41 U.S.C. §§ 7101–7109), which does not apply in this
case, but, in any event, similarly contains a six-year timeliness requirement.
22