Hood v. United States

0, G\N~l
3Jn tbe Wntteb $>tates 404 U.S. 519, 520-21 (requiring that allegations
contained in a .P!Q se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429
U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, affd,
603 F. App'x 947 (Fed. Cir. 2015), cert. denied 135 S. Ct. 1909 (2015). "However, "'[t]here
is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(a-c) (2012); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506 n. 5
(2006). As noted by another Judge of the Court of Federal Claims, "28 U.S.C. § 1367
does not confer any jurisdiction upon the United States Court of Federal Claims because
only the United States District Courts are authorized to exercise supplemental
jurisdiction." Hall v. United States, 69 Fed. Cl. 51, 57 (2005); see also Trek Leasing, Inc.
v. United States, 62 Fed. Cl. 673, 678 (2004) (indicating 28 U.S.C. § 1367 "only applies
specifically to federal district courts."). Therefore, this court cannot exercise supplemental
jurisdiction over any of plaintiff's claims.
7
out in his [or her] pleading."'" Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011 );
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities
in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."'
(quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements.'" (quoting Minehan v. United States, 75 Fed.
Cl. at 253)). Plaintiff has also filed applications to proceed in forma pauperis in Case
Number 15-1200 and Case Number 15-1501. For the reasons discussed below, plaintiff's
applications to proceed in forma pauperis in Case Number 15-1501 and Case Number
15-1200 are deemed moot.
It is well established that '"subject-matter jurisdiction, because it involves a court's
power to hear a case, can never be forfeited or waived.'" Arbaugh v. Y & H Corp., 546
U.S. at 514 (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederal courts
have an independent obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 434 (2011 ); see also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) ("When
a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua
sponte issues that the parties have disclaimed or have not presented.''); Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010) ("Courts have an independent obligation to determine
whether subject-matter jurisdiction exists, even when no party challenges it." (citing
Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d
1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to hear
and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160,
161 (Fed. Cir. 1990)); View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963
(Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise
the issue or not."). "Objections to a tribunal's jurisdiction can be raised at any time, even
by a party that once conceded the tribunal's subject-matter jurisdiction over the
controversy.'' Sebelius v. Auburn Reg'I Med. Ctr., 133 S. Ct. 817, 824 (2013); see also
Arbaugh v. Y & H Corp., 546 U.S. at 506 ('The objection that a federal court lacks subject-
matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry of judgment."); Cent. Pines Land Co ..
L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) ("An objection to a
court's subject matter jurisdiction can be raised by any party or the court at any stage of
8
litigation, including after trial and the entry of judgment." (citing Arbaugh v. Y & H Corp .,
546 U.S. at 506-07)); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346
(Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject
matter jurisdiction at any time." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden
v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g and reh'g en bane denied (Fed .
Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West,
160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal
dismissed, 425 F. App'x 902 (Fed. Cir. 2011 ). In fact, "[s]ubject matter jurisdiction is an
inquiry that this court must raise sua sponte, even where . . . neither party has raised this
issue. " Metabolite Labs ., Inc. v. Lab. Corp . of Am. Holdings, 370 F.3d 1354, 1369 (Fed.
Cir.) (citing Textile Prods .. Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh'g
denied and en bane suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)),
reh'g and reh'g en bane denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp.
of Am. Holdings v. Metabolite Labs .. Inc., 546 U.S . 975 (2005), cert. dismissed as
improvidently granted, 548 U.S. 124 (2006); see also Avid Identification Sys., Inc. v.
Crystal Import Corp., 603 F.3d 967 , 971 (Fed . Cir.) ("This court must always determine
for itself whether it has jurisdiction to hear the case before it, even when the parties do
not raise or contest the issue."), reh'g and reh'g en bane denied, 614 F.3d 1330 (Fed. Cir.
2010), cert. denied, 131 S. Ct. 909 (2011) .
"Determination of jurisdiction starts with the complaint, which must be well-
pleaded in that it must state the necessary elements of the plaintiff's claim, independent
of any defense that may be interposed ." Holley v. United States, 124 F.3d 1462, 1465
(Fed . Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1
(1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United
States, 97 Fed . Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States,
93 Fed . Cl. 710, 713 (2010). A plaintiff need only state in the complaint "a short and plain
statement of the grounds for the court's jurisdiction," and "a short and plain statement of
the claim showing that the pleader is entitled to relief." RCFC 8(a)(1 ), (2) (2015); Fed. R.
Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007)). However, "[c]onclusory
allegations of law and unwarranted inferences of fact do not suffice to support a claim ."
Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Mczeal v. Sprint
Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part,
dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure §
1286 (3d ed. 2004)). "A plaintiff's factual allegations must 'raise a right to relief above the
speculative level' and cross 'the line from conceivable to plausible."' Three S Consulting
v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed . Cir. 2014). As stated
in Ashcroft v. Iqbal , "[a] pleading that offers 'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not do.' 550 U.S. at 555. Nor does a
complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."'
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
The Tucker Act grants jurisdiction to this court as follows:
9
The United States Court of Federal Claims shall have 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) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied
(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States .... "United States v. Mitchel!, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe , 537 U.S. 465, 472 (2003); Sm ith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States, 566 F.3d 1358, 1360 (Fed . Cir. 2009); Rick's Mushroom Serv., Inc. v.
United States, 521 F.3d at 1343 ("[P]laintiff must ... identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation. Inc. v.
United States, the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federal Claims. The court wrote:
The underlying monetary claims are of three types .... First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver .. .. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) ....
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." .!sl; see also [United States v. JTestan, 424 U.S.
10
 [392,] 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself ... can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario Power Generation. Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon '"can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell, 463 U.S. at 217; Blueport Co .. LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv .. Inc. v. Fed .
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
As a threshold issue, defendant argues that plaintiff's Case Number 15-1501 is
barred under 28 U.S.C. § 1500 because plaintiff had a pending matter in another federal
court when he filed his complaint in Case Number 15-1501 in this court on December 11,
2015. In its motion to dismiss, defendant alleges that Hood v. United States Postal
Service, 1: 14-cv-01104 (W.D. Mich. July 10, 2015), is currently pending on appeal, and
is largely based on the same subject matter and raises the same issues as Case Number
15-1501. Defendant argues that, even if it could be determined that plaintiff has submitted
a claim under a money-mandating statute and has otherwise complied with the
jurisdictional requirements of the Tucker Act, 28 U.S.C. § 1491, subject matter jurisdiction,
nevertheless, would be barred by 28 U.S.C. § 1500. The statute at 28 U.S.C. § 1500
provides:
The United States Court of Federal Claims shall not have jurisdiction of any
claim for or in respect to which the plaintiff or his assignee has pending in
any other court any suit or process against the United States or any person
11
who, at the time when the cause of action alleged in such suit or process
arose, was, in respect thereto, acting or professing to act, directly or
indirectly under the authority of the United States.
28 U.S.C. § 1500. The application of section 1500 turns on whether plaintiff had pending,
at the time he filed suit in the Court of Federal Claims, a suit in another court against the
United States or a person acting under authority of the United States, based on
substantially the same operative facts as the suit filed in this court, regardless of the relief
sought. See United States v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011). "The
question of whether another claim is 'pending' for purposes of§ 1500 is determined at
the time at which the suit in the Court of Federal Claims is filed, not the time at which the
Government moves to dismiss the action ." Loveladies Harbor. Inc. v. United States, 27
F.3d 1545, 1548 (Fed. Cir. 1994) (discussing the Supreme Court's opinion in Keene Corp .
v. United States, 508 U.S. 200 (1993)). Indeed, '"the jurisdiction of the Court depends
upon the state of things at the time of the action brought.'" Keene Corp. v. United States,
508 U.S. at 207 (quoting Mollan v. Torrance, 22 U.S. 537, 539 (1824) (Marshall, C.J .)
(other citations omitted) (noting that the Court of Federal Claims correctly applied section
1500 by "looking to the facts existing when Keene filed each of its complaints."). When a
district court has entered judgment dismissing a case, the United States Court of
Appeals for the Federal Circuit has established that once "a notice of appeal is filed," then
the case is "pending" under 28 U.S.C. § 1500. Brandt v. United States, 710 F.3d 1369,
1380 (Fed. Cir. 2013).
The United States Supreme Court offered some clarification regarding the effect
of 28 U.S.C. § 1500 in Tohono O'Odham Nation. In the words of the United States
Supreme Court, section 1500 "bars jurisdiction in the CFC [Court of Federal Claims] not
only if the plaintiff sues on an identical claim elsewhere - a suit 'for' the same claim - but
also if the plaintiff's other action is related although not identical - a suit 'in respect to' the
same claim." United States v. Tohono O'Odham Nation, 563 U.S. at 312. The Supreme
Court explained, "two suits are for or in respect to the same claim when they are based
on substantially the same operative facts." .LQ.. at 318 (citing Keene Corp. v. United States,
508 U.S. 200, 206 (1993)).
There is, however, no set test to determine when, according to the Supreme Court,
"two suits have sufficient factual overlap to trigger the jurisdictional bar." United States v.
Tohono O'Odham Nation, 563 U.S. at 318. Although the assessment must be on a case
by case factual basis, the Tohono O'Odham Nation case provides a general framework
for consideration. In its decision, the Supreme Court stated in Tohono O'Odham Nation:
The remaining question is whether the Nation's two suits have sufficient
factual overlap to trigger the jurisdictional bar. The CFC [United States
Court of Federal Claims] dismissed the action here in part because it
concluded that the facts in the Nation's two suits were, "for all practical
purposes, identical." 79 Fed. Cl. 645, 656 (2007) . It was correct to do so.
The two actions both allege that the United States holds the same assets in
trust for the Nation's benefit. They describe almost identical breaches of
12
fiduciary duty - that the United States engaged in self-dealing and
imprudent investment, and failed to provide an accurate accounting of the
assets held in trust, for example. Indeed, it appears that the Nation could
have filed two identical complaints, save the caption and prayer for relief,
without changing either suit in any significant respect. Under § 1500, the
substantial overlap in operative facts between the Nation 's District Court
and CFC suits precludes jurisdiction in the CFC.
!Q.. at 317 .
In this court, plaintiff filed his complaint in Case Number 15-1501 against the
United States on December 11, 2015. Plaintiff earlier had filed Case Number 1: 14-cv-
01104, against the USPS in the Western District of Michigan on October 24, 2014. See
Hood v. USPS, No. 14-1104. Case number 14-1104 in the district court was subsequently
dismissed on July 10, 2015 because plaintiff's claims were found to be barred by the
Settlement Agreement, untimely, and evidenced a failure to exhaust administrative
remedies. See id . On August 12, 2015 , plaintiff filed an appeal of the district court's
decision in Case Number 14-1104 in the United States Court of Appeals for the Sixth
Circuit, Hood v. United States, Case No. 1: 15-1937 (6th Cir. 2015) . As of December 11,
2015, the date that Case Number 15-1501 was filed in the United States Court of Federal
Claims, Case Number 15-1937 in the Sixth Circuit, was pending, and is still pending at
the time of issuing this decision. Therefore, in both this court and in the Sixth Circuit,
plaintiff has pending concurrent suits against the United States or a person acting under
authority of the United States. See United States v. Tohono O'Odham Nation, 563 U.S.
at 311. Because "[t]he question of whether another claim is 'pending' for purposes of
§ 1500 is determined at the time at which the suit in the Court of Federal Claims is filed,"
and Case Number 15-1937 was pending on appeal in the Sixth Circuit on December 11 ,
2015, plaintiff had a suit pending against the United States at the time he filed Case
Number 15-1501 in this court for the purposes of 28 U.S.C. § 1500. Loveladies Harbor.
Inc. v. United States, 27 F.3d at 1548.
Comparing the complaints, including the allegations and facts alleged in plaintiff's
two concurrent lawsuits in this court and in the district court, demonstrates that the
operative facts meet the analytical framework set forth in Tohono O'Od ham Nation . See
United States v. Tohono O'Odham Nation, 563 U.S. at 311. For example:
1. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 2, plaintiff states: "On December 15, 2000, the United States,
through its agency, USPS and its agents, Nichon Perrier (Supervisor
Distribution Operations) and Daryle Rocco (Acting Manager Distribution
Operations) when they negligently issued a 'Notice of Suspension of 14 days
or Less' for absences as a result of Plaintiffs disability asthma, in violation of
article 2.1, 5, 6 of the Collective Bargaining Agreement (CBA) and the
Rehabilitation Act of 1973 . .. The United States, through its agency, USPS
and its agents, failed to adhere to their statutory and contractual duties and
Plaintiff suffered an economic injury."
13
In comparison: In the United Stated District Court of the Western District of
Michigan in Hood v. USPS, Case No. 14-1104, at 1-2, plaintiff states: "On
December 15, 2000, I was denied reasonable accommodations in the form of
time off for asthma. I was issued a 'Notice of Suspension of 14 days or Less'
for absences based my disability asthma by supervisor of distribution
operations, Nichon Perrier and acting manager of distribution operations, Daryl
Rocco[.]"
2. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 2, plaintiff states: "On May 10, 2001, the United States, through
its agency, USPS and its agents, were negligent when through Hood's treating
physician, Dr. Lawrence Probes; Plaintiff requested the following reasonable
accommodation: 'no more than 8 hours per day or 40 hours per week and to
be transferred to P-1 Annex site' on April 23, 2001, but request went ignored."
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 3, plaintiff states: "On May 10, 2001, I was
discriminated against when through my treating physician, Dr. Lawrence
Probes; I requested the following reasonable accommodation: 'no more than 8
hours per day or 40 hours per week and to be transferred to P-1 Annex site' on
April 23, 2001."
3. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "May 10, 2001 to January 29, 2002, the
agency placed the Plaintiff in a position that he does not believe was
appropriate because it forced him to work outside his physician's restrictions of
40 hours per week and was denied placement at P-1 Annex work site ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 2, plaintiff states: "May 10, 2001 to January
29, 2002, the agency placed me in a position that I do not believe was
appropriate because I worked outside my physician's restrictions of 40 hours
per week and was denied placement at P-1 Annex work site ... "
4. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "On July 23, 2001, the United States, through
its agency, USPS and its agents, Linda Jones (Supervisor Distribution
Operations) were negligent when they issued an investigative interview
concerning absences that were covered by OWCP ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 3, plaintiff states: "On July 23, 2001, I was
discriminated against when I was given an investigative interview concerning
absences that were covered by OWCP ... "
14
5. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "From May 10, 2001 until July 23, 2001, the
agency was negligent when they ignored the Plaintiff requests for reasonable
accommodation for his disabilities (PTSD, Depression, and Anxiety) in the form
of time off and adhering to his physician's restrictions 'no more than 8 hours
per day 40 hours per week and being placed at P-1 Annex work site' ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 3, plaintiff states: "From May 10, 2001 until
July 23, 2001 the agency denied me reasonable accommodation for my
disabilities (PTSD, Depression, and Anxiety) in the form of time off and
adhering to my physician's restrictions 'no more than 8 hour per day 40 hours
per week and being placed at P-1 Annex work site'."
6. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "On August 15, 2001, the United States,
through its agency, USPS and its agents, Linda Jones (Supervisor Distribution
Operations) were negligent when they issued a 'Notice of Suspension of 14
days or less' to Plaintiff in connection to absences that were covered by
OWCP ... From May 10, 2001 until August 15, 2001, the agency was negligent
when they ignored the Plaintiffs requests for reasonable accommodation for his
disabilities (PTSD, Depression, and Anxiety) in the form of time off and
adhering to his physician's restrictions 'no more than 8 hours per day 40 hours
per week and being placed at P-1 Annex work site' .. ."
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 3, plaintiff states: "On August 2, 2001, I was
discriminated against when I was issued a 'Notice of Suspension of 14 days or
less' in connection to absences that were covered by OWCP ... From May 10,
2001 until August 2, 2001, the agency denied me reasonable accommodation
for my disabilities (PTSD, Depression, and Anxiety) in the form of time off and
adhering to my physician's restrictions 'no more than 8 hour per day 40 hours
per week and being placed at P-1 Annex work site'."
7. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "On September 24, 2001, the United States,
through its agency, USPS and its agents, Linda Jones (Supervisor Distribution
Operations) were negligent when they issued an investigative interview
concerning absences that were covered by OWCP."
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 3, plaintiff states: "On September 24, 2001, I
was discriminated against when I was given an investigative interview
concerning absences that were covered by OWCP ... "
15
8. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 3, plaintiff states: "On October 17, 2001, the United States,
through its agency, USPS and its agents, Linda Jones Supervisor Distribution
Operations) were negligent when they a issued another 'Notice of Suspension
of 14 days or less' in connection to absences that were covered by OWCP ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 5, plaintiff states: "On October 17, 2001, I was
discriminated against when I was issued another 'Notice of Suspension of 14
days or less' in connection to absences that were covered by OWCP ... "
9. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 4, plaintiff states: "On December 15, 2001, the United States,
through its agency, USPS and its agents, Pamela A. Bronson (Supervisor
Distribution Operations) were negligent when they issued a 'Letter of Intent of
Removal' in connection to absences that were covered by OWCP ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 4, plaintiff states: "On December 15, 2001, I
was discriminated against when I was issued 'Letter of Intent of Removal' in
connection to absences that were covered by OWCP ... "
1O. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 4, plaintiff states: "On January 14, 2002, the United States,
through its agency, USPS and its agents, Pamela A. Bronson (Supervisor
Distribution Operations) and Daryl Rocco (Manager Distribution Operations)
were negligent when they issued a issued 'Letter of Removal' in connection to
absences that were covered by OWCP ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 5, plaintiff states: "On January 14, 2002, I was
discriminated against when I was issued 'Letter of Removal' in connection to
absences that were covered by OWCP ... "
11. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 5, plaintiff states: "On December 1, 2002, the United States,
through its agency, USPS and its agents, were negligent when the agency
improperly restored Plaintiff to a regular position, without medical
restrictions ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 6, plaintiff states: "On December 1, 2002, I was
discriminated against when the agency improperly restored me to a regular
position, without medical restrictions."
16
12. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 5, plaintiff states: "On July 17, 2003, the United States, through
its agency, USPS and its agents, Linda Jones (Acting Manager Distribution
Operations) and Paris McHerron (Supervisor Distribution Operations) were
negligent when they gave an investigative interview concerning absences that
were covered under FMLA . .. "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 7, plaintiff states: "On July 10, 2003, I was
discriminated against when I was given an investigative interview concerning
absences that were covered under FMLA ... "
13. In the United States Court of Federal Claims, in Hood v. United States, Case
No. 15-1501, at 5, plaintiff states: "From December 1, 2002 until September 12,
2003, the United States, through its agency, USPS and its agents, were
negligent when the agency improperly restored Plaintiff to a regular position,
without medical restrictions and forced Plaintiff to work overtime ... "
In comparison: In the United Stated District Court of the Western District of
Michigan, Case No. 14-1104, at 8, plaintiff states: "From December 1, 2002
until September 12, 2003, I was discriminated against when the agency
improperly restored me to a regular position, without medical restrictions and
forced me to work overtime ... "
In light of the above, Case Number 14-1104, filed in the United States District Court
of the Western District of Michigan and appealed to the United States Court of Appeals
for the Sixth Circuit as Case Number 15-1937, and Case Number 15-1501, filed in this
court, are evidently based on substantially the same operative facts. In fact, in both cases,
plaintiff's claims are based on a nearly identical set of alleged interactions between
plaintiff and the USPS. Therefore, because on the date that plaintiff filed suit in this court,
December 11, 2015, his case in the Sixth Circuit was pending for purposes of 28 U.S.C.
§ 1500, this court is deprived of jurisdiction to hear plaintiff's overlapping claims in Case
Number 15-1501 . Moreover, at the time of this decision, the appeal at the Sixth Circuit is
still pending according to the Sixth Circuit case docket.
Additionally, even if plaintiff's claims in Case Number 15-1501 were not barred by
28 U.S.C. § 1500, this court lacks jurisdiction over plaintiff's claims for alleged violations
of his constitutional right to due process under the Fifth Amendment to the United States
Constitution in Case Number 15-1200 and in Case Number 15-1501, violations of his
equal protection rights under the Fourteenth Amendment in Case Number 15-1200 and
Case Number 15-1501, and plaintiff's claims for "First Amendment Violation of free
Speech" in Case Number 15-1200, each of which do not mandate the payment of money.
First, insofar as plaintiff alleges a violation of his rights under the Fifth Amendment to the
United States Constitution, including for "late responses and/or other events presented in
this complaint," the United States Court of Appeals for the Federal Circuit has held that
this court does not possess jurisdiction to consider claims arising under the Due Process
Clauses of the Fifth and Fourteenth Amendments. See Crocker v. United States, 125 F.3d
17
 1475, 1476 (Fed . Cir. 1997) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.
Cir. 1995)) (no jurisdiction over a due process violation under the Fifth and Fourteenth
Amendments) ; see also Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The
law is well settled that the Due Process clauses of both the Fifth and Fourteenth
Amendments do not mandate the payment of money and thus do not provide a cause of
action under the Tucker Act." (citing LeBlanc v. United States, 50 F.3d at 1028), cert.
denied, 134 S. Ct. 259 (2013)); In re United States, 463 F.3d 1328, 1335 n.5 (Fed. Cir.)
("[B]ecause the Due Process Clause is not money-mandating, it may not provide the basis
for jurisdiction under the Tucker Act."), reh'g and reh'g en bane denied (Fed. Cir. 2006),
cert. denied sub nom. Scholl v. United States, 552 U.S. 940 (2007); Acadia Tech., Inc. &
Global Win Tech. , Ltd. v. United States, 458 F.3d 1327, 1334 (Fed. Cir. 2006); Collins v.
United States, 67 F.3d 284, 288 (Fed. Cir.) ("[T]he due process clause does not obligate
the government to pay money damages."), reh'g denied (Fed . Cir. 1995); Mullenberg v.
United States, 857 F.2d 770, 773 (Fed. Cir. 1988) (finding that the Due Process clauses
"do not trigger Tucker Act jurisdiction in the courts"); Murray v. United States, 817 F.2d
1580, 1583 (Fed . Cir. 1987) (noting that the Fifth Amendment Due Process clause does
not include language mandating the payment of money damages); Harper v. United
States, 104 Fed. Cl. 287, 291 n.5 (2012); Hampel v. United States, 97 Fed. Cl. 235, 238,
aff'd, 429 F. App'x 995 (Fed. Cir. 2011 ), cert. denied, 132 S. Ct. 1105 (2012); McCullough
v. United States, 76 Fed. Cl. 1, 4 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.),
reh'g denied (Fed. Cir.), cert. denied, 552 U.S. 1050 (2007) ("[N]either the Fifth
Amendment Due Process Clause .. . nor the Privileges and Immunities Clause provides
a basis for jurisdiction in this court because the Fifth Amendment is not a source that
mandates the payment of money to plaintiff.") . Due process claims "must be heard in
District Court." Kam-Almaz v. United States, 96 Fed. Cl. 84, 89 (2011) (citing Acadia
Tech ., Inc. & Global Win Tech., Ltd . v. United States, 458 F.3d at 1334), aff'd, 682 F.3d
1364 (Fed. Cir. 2012); see also Hampel v. United States, 97 Fed. Cl. at 238. Therefore,
to the extent that plaintiff is attempting to allege due process violations under the Fifth
Amendment in either Case Number 15-1501 or 15-1200, no such cause of action can be
brought in this court.
This Court similarly lacks jurisdiction to hear plaintiff's claims for alleged violations
of his equal protection rights under the Fourteenth Amendment to the United States
Constitution. To the extent that plaintiff raises claims under the Equal Protection Clause
of the Fourteenth Amendment, those claims do not mandate the payment of money by
the federal government and, therefore, fall outside the jurisdiction of the United States
Court of Federal Claims. See LeBlanc v. United States, 50 F.3d at 1028 (indicating that
a claim under the Equal Protection Clause of the Fourteenth Amendment is not sufficient
for jurisdiction in the United States Court of Federal Claims because it does not "mandate
payment of money by the government." (citing Carruth v. United States, 224 Ct. Cl. 422,
445 (1980))); Potter v. United States, 108 Fed. Cl. 544, 548 (2013) (finding that "this Court
lacks jurisdiction over violations under the Due Process Clauses of the Fifth and
Fourteenth Amendments . .. because they do not mandate payment of money by the
government.") (internal citations omitted) (modifications in original); Warren v. United
States, 106 Fed. Cl. 507, 511 (2012) (holding that, since the "Fourteenth Amendment
guarantee of equal protection" is not money mandating, "[a]ccordingly, the court lacks
18
jurisdiction over these claims."); Pleasant-Bey v. United States, 99 Fed. Cl. 363, 367
(2011) appeal dismissed, 464 F. App'x 879 (Fed. Cir. 2012) ("However, this court does
not have jurisdiction over claims based on either the Thirteenth Amendment or Fourteenth
Amendment because neither mandates the payment of money damages."). Plaintiff's
allegations in Case Number 15-1501 and Case Number 15-1200 of equal protection
clause violations under the Fourteenth Amendment to the United States Constitution,
therefore, also cannot be adjudicated in this court.
This court similarly lacks jurisdiction to entertain plaintiff's claims for an alleged
"First Amendment Violation of free Speech ." The First Amendment to the United States
Constitution, standing alone or otherwise, cannot be interpreted to require the payment
of money for an alleged violation, and, therefore, does not provide an independent basis
for jurisdiction in this court. See United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir.
1983), cert. denied, 465 U.S. 1065 (1984) ("We agree with the Court of Claims that the
first amendment, standing alone, cannot be so interpreted to command the payment of
money."); Volk v. United States, 111 Fed. Cl. 313, 326 (2013); Cox v. United States. 105
Fed. Cl. 213, 217, appeal dismissed (Fed . Cir. 2012) ("However, because the First
Amendment, standing alone, does not obligate the United States to pay money damages,
it cannot serve as the basis for jurisdiction in the Court of Federal Claims.") (citing United
States v. Connolly, 716 F.2d at 887). Accordingly, to the extent that plaintiff is attempting
to allege a violation of the First Amendment to the United States Constitution in Case
Number 15-1501 or Case Number 15-1200, no such cause of action can be brought in
this court.
Additionally, although this court does have jurisdiction to consider allegations of a
taking in violation of the Fifth Amendment to the United States Constitution, plaintiff's
allegations fail to state such a claim. The Takings Clause of the Fifth Amendment to the
United States Constitution provides in pertinent part: "nor shall private property be taken
for public use without just compensation." U.S. Const. amend. V. To succeed in a takings
cause of action under the Fifth Amendment, a plaintiff must show that the government
took a cognizable private property interest for public use without just compensation. See
Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S.
811 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762 (201 O); Gahagan v. United
States, 72 Fed. Cl. 157, 162 (2006). "The issue of whether a taking has occurred is a
question of law based on factual underpinnings." Huntleigh USA Corp v. United States,
525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008) (citations omitted).
The Federal Circuit has established a two-part test to determine whether governmental
actions amount to taking of private property under the Fifth Amendment. See Klamath Irr.
Dist. v. United State§, 635 F.3d 505, 511 (Fed. Cir. 2011 ); Am. Pelagic Fishing Co. v.
United States, 379 F.3d 1363, 1372 (Fed. Cir.) (citing M & J Coal Co. v. United States,
47 F.3d 1148, 1153-54 (Fed. Cir. 1995)), reh'g en bane denied, (2004). A court first
determines whether a plaintiff possesses a cognizable property interest in the subject of
the alleged taking. Then, the court must determine whether the government action is a
'"compensable taking of that property interest.'" Huntleigh USA Corp v. United States,
525 F.3d at 1377 (quoting Am. Pelagic Fishing Co .. LP. v. United States, 379 F.3d at
1372).
19
In Case Number 15-1501, plaintiff alleges a "regulatory and physical taking of
private property" based on plaintiff's assertions that the USPS violated its "statutory and
contractual requirement's imposed by the Family Medical Leave Act ('FMLA') of 1993,
Federal Employee's Compensation Act ('FECA'), and the CBA [Collective Bargaining
Agreement]" by accelerating "Plaintiffs wrongful termination in an effort to deprive him of
his rights to life, liberty, and property (Job) to reissue it to the public. Plaintiff also claims
that in April, 2004, "[b]y confiscating, depriving, and wrongfully terminating Plaintiffs
employment, Defendant has taken Plaintiff's private property for public use without just
compensation, in violation of the Fifth Amendment to the Constitution of the United
States."
As a threshold matter, plaintiff's regulatory and physical takings claim do not allege
a property interest subject to a valid constitutional takings claim. To the extent plaintiff
alleges that the property interest in question is his job with the USPS, plaintiff has not
sufficiently alleged a cognizable property interest. Although the United States Court of
Appeals for the Federal Circuit has recognized that a "public employee has a property
interest in continued employment" when the government gives the employee certain
"assurances of continued employment" or it "conditions dismissal only for specific
reasons.'' Mr. Hood fails to specify whether he had been given such assurances from the
government or to provide any evidence of such assurances. See Stone v. FDIC, 179 F.3d
1368, 1374 (Fed. Cir. 1999). Plaintiff also has not alleged that he possessed the right to
dispose of, transfer, or exclude others from the USPS job. Moreover, when an employee
has a property interest in his public employment, that interest is protected by the due
process clause of the Fifth Amendment to the United States Constitution. J.sL at 1374-75.
As explained previously, this court does not have jurisdiction over claims brought under
the due process clause of the Fifth Amendment. Additionally, to the extent that plaintiff's
regulatory and physical takings claims alleges that the property taken was an "ability to
secure gainful employment," his claims are more properly classified as tort claims, rather
than Fifth Amendment takings claims. See Howard v. United States, 21 Cl. Ct. 475, 478-
479 (1990). Therefore, plaintiff's regulatory and physical takings claims does not allege
a legally cognizable property interest.
In plaintiff's second amended complaint in Case Number 15-1200 he alleges fraud
and conspiracy, which are tort claims . As such, this court lacks jurisdiction to adjudicate
those claims. The Tucker Act expressly excludes tort claims, including those committed
by federal officials, from the jurisdiction of the United States Court of Federal Claims. See
28 U.S.C. § 1491 (a) ("The United States Court of Federal Claims shall have 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."); see also Keene Corp. v. United
States, 508 U.S. at 214; Rick's Mushroom Serv .. Inc. v. United States, 521 F.3d at 1343;
Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United States,
105 F.3d 621, 623 (Fed. Cir.) ("Because Brown and Darnell's complaints for 'fraudulent
assessment[s]' are grounded upon fraud, which is a tort, the court lacks jurisdiction over
20
those claims."), reh'g denied (Fed. Cir. 1997); Golden Pac. Bancorp v. United States, 15
F.3d 1066, 1070 n.8 (Fed. Cir.), reh'g denied, en bane suggestion declined (Fed. Cir.),
cert. denied, 513 U.S. 961 (1994); Hampel v. United States, 97 Fed. Cl. at 238; Jumah v.
United States, 90 Fed. Cl. 603, 607 (2009) ("[l]t is well-established that the Court of
Federal Claims does not have jurisdiction over tort claims. Here, Mr. Jumah seeks
damages for '[n]eglect, [m]isrepresentation, [f]alse [i]mprisonment, [c]onspiracy,
[i]ntentional [i]nfliction of emotional [d]istress, [i]nvasion of [p]rivacy, [n]egligence and
[t]respass and [p]unitive [d]amages.' These are all claims sounding in tort." (internal
citation omitted; all brackets in original)), aff'd, 385 F. App'x 987 (Fed. Cir. 201 O);
Woodson v. United States, 89 Fed. Cl. 640, 650 (2009); Fullard v. United States, 77 Fed.
Cl. 226, 230 (2007) ("This court lacks jurisdiction over plaintiff's conspiracy claim because
the Tucker Act specifically states that the Court of Federal Claims does not have
jurisdiction over claims 'sounding in tort.'"); Edelmann v. United States, 76 Fed. Cl. 376,
379-80 (2007) ("This Court 'does not have jurisdiction over claims that defendant
engaged in negligent, fraudulent, or other wrongful conduct when discharging its official
duties' . . . [and] Plaintiffs' claims of fraud, misrepresentation, slander, perjury,
harassment, intimidation, coercion, theft, and defamation, and their claims that the
Government deprived Ms. Edelmann of her right to a fair trial, are tort claims." (quoting
Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998)); McCullough v. United States, 76
Fed. Cl. 1, 3 (2006), appeal dismissed , 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed .
Cir.), cert. denied, 552 U.S. 1050 (2007); Agee v. United States, 72 Fed. Cl. 284, 290
(2006); Zhengxing v. United States, 71 Fed. Cl. 732, 739, aff'd, 204 F. App'x 885 (Fed.
Cir.), reh'g denied (Fed. Cir. 2006). Plaintiff's claims of conspiracy and fraud sound in tort,
and, accordingly, must be dismissed for lack of jurisdiction.
To the extent plaintiff's fraud allegations are intended as claims of contract fraud,
plaintiff has failed to properly state a claim for relief. Plaintiff alleges:
The contract was the result of fraud, coercion, and I was under duress
because of my psychiatric conditions. The contract is a result of undue
influence because of the United States, through its agency, the USPS
arbitrary, capricious, discriminatory, and fraudulent actions taken against
me.
"In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's
mind may be alleged generally.'' RCFC 9(b) (2015). "Although 'knowledge' and 'intent'
may be averred generally, our precedent, like that of several regional circuits, requires
that the pleadings allege sufficient underlying facts from which a court may reasonably
infer that a party acted with the requisite state of mind." Exergen Corp. v. Wal-Mart
Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009). "Therefore, to satisfy Rule 9(b), 'the
pleading must identify the specific who, what, when, where, and how' of the alleged fraud
or mistake. Kellogg Brown & Root Servs. , Inc. v. United States, 99 Fed. Cl. 488, 495 (Cl.
Ct. 2011) (quoting Exergen, 575 F.3d at 1328).
21
Plaintiff's complaint in Case Number 15-1200 alleges that defendant engaged in
fraud, but plaintiff does not specifically identify individuals who he asserts committed such
fraudulent conduct. Plaintiff's complaint narrates an alleged story of fraud committed by
multiple actors, but plaintiff does not sufficiently allege underlying facts for this court to
understand which , if any, of the government's actions mentioned in plaintiff's complaint
were committed with the requisite state of mind. Accordingly, to the extent plaintiff's
allegations allege contract-related fraud, Mr. Hood's complaint fails to sufficiently plead
fraud in accordance with RCFC 9.
Finally, although plaintiff also asserts an array of breach of contract claims in Case
Number 15-1200 and Case Number 15-1501, including breach of the Settlement
Agreement, breach of an implied-in-fact contract, breach of common law promissory
estoppel, breach of an implied covenant of good faith and fair dealing in regards to the
Settlement Agreement, breach of the promise to accommodate, and breach of the implied
covenant of good faith and fair dealing for failure to provide equal treatment in the
workplace, defendant properly points out that the contract claims alleged by plaintiff
appear to be time-barred pursuant to 28 U.S.C. § 2501. In reviewing both Case Number
15-1200 and Case Number 15-1501, defendant argues that the government's alleged
breaches of contract occurred between December 2000 and September 2008.
Consequently, defendant asserts that plaintiff's contract claims in Case Number 15-1501
and Case Number 15-1200 are time-barred because all of the relevant events allegedly
constituting breaches occurred more than six years before plaintiff filed his two complaints
on October 15, 2015 and December 11, 2015.
Suits against the United States are subject to a six-year statute of limitations.
According to the statute at 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 .... A petition on the claim of a person under
legal disability or beyond the seas at the time the claim accrues may be filed
within three years after the disability ceases.
!sl "The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.) , reh'g en bane denied (Fed . Cir. 2006),
aff'd, 552 U.S. 130 (2008). The United States Court of Appeals for the Federal Circuit has
indicated that a claim accrues "'when all events have occurred to fix the Government's
alleged liability, entitling the claimant to demand payment and sue here for his money.'"
San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting
Samish Indian Nation v. United States, 419 F.3d 1355, 1369 (Fed . Cir. 2005) (quoting
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003), cert. denied, 540 U.S.
1177 (2004))), reh'g en bane denied (Fed. Cir. 2011); see also FloorPro, Inc. v. United
States, 680 F.3d 1377, 1381 (Fed . Cir. 2012); Martinez v. United States, 333 F.3d at
1303 ("A cause of action cognizable in a Tucker Act suit accrues as soon as all events
have occurred that are necessary to enable the plaintiff to bring suit, i.e., when 'all events
22
have occurred to fix the Government's alleged liability, entitling the claimant to demand
payment and sue here for his money."' (quoting Nager Elec. Co. v. United States, 177 Ct.
Cl. 234, 240, 368 F.2d 847, 851 (1966), motion denied, 184 Ct. Cl. 390, 396 F.2d 977
(1968)); Hopland Band of Pomo Indians v. United States. 855 F.2d 1573, 1577 (Fed. Cir.
1988); see also Brizuela v. United States, 103 Fed. Cl. 635, 639, aff'd, 492 F. App'x 97
(Fed. Cir. 2012), cert. denied 133 S. Ct. 1645 (2013). A Judge of the United States Court
of Federal Claims has noted that:
It is well-established that a claim accrues under section 2501 "when 'all
events have occurred to fix the Government's alleged liability, entitling the
claimant to demand payment and sue here for his money."' Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane), cert. denied,
540 U.S. 1177 (2004) (quoting Nager Elec. Co. v. United States, 368 F.2d
847, 851 (Ct. Cl. 1966)); see also Samish [Indian Nation v. United States),
419 F.3d [1355,] 1369 [(2005)]. Because, as noted, this requirement is
jurisdictional, plaintiff bears the burden of demonstrating that its claims were
timely. See Alder Terrace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed .
Cir. 1998); Entines v. United States, 39 Fed. Cl. 673, 678 (1997), affd , 185
F.3d 881 (Fed . Cir.), cert. denied, 526 U.S. 1117 (1999); see also John R.
Sand & Gravel Co. v. United States, 457 F.3d 1345, 1362 (Fed. Cir. 2006)
(Newman, J., dissenting); Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988).
Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011),
aff'd, 465 F. App'x 952 (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United
States, 97 Fed. Cl. at 209 (citing Alder Terrace. Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998)). Accrual of a claim is '"determined under an objective standard"'
and plaintiff does not have to possess actual knowledge of all the relevant facts in order
for a cause of action to accrue. FloorPro. Inc. v. United States, 680 F.3d at 1381 (quoting
Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied, 517 U.S. 1243
(1996)).
Although the accrual of a claim pursuant to 28 U.S.C. § 2501 may, in certain limited
scenarios, be suspended "until the claimant knew or should have known that the claim
existed," Holmes v. United States, 657 F.3d 1303, 1317 (Fed . Cir. 2011) (quoting Young
v. United States, 529 F.3d 1380, 1384 (Fed . Cir. 2008)), plaintiff's alleged "[i]gnorance of
rights which should be known is not enough" to suspend the accrual of a claim. Braude
v. United States, 585 F.2d 1049 (Ct. Cl. 1978) (quoting Japanese War Notes Claimants
Ass'n v. United States. 373 F.2d 356, 358-59 (Ct. Cl. 1967) cert. denied, 389 U.S. 971
(1967)). Rather, the accrual suspension doctrine is '"strictly and narrowly applied,'" and
the accrual date of a cause of action will be suspended in only very limited circumstances:
"[the plaintiff] must either show that defendant has concealed its acts with the result that
plaintiff was unaware of their existence or it must show that its injury was 'inherently
unknowable' at the accrual date." See Martinez v. United States, 333 F.3d at 1319
(quoting Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985)); see also
Alliance of Descendants of Tex. Land Grants. 37 F.3d 1478, 1482 (Fed. Cir. 1994);
23
Catawba Indian Tribe v. United States. 982 F.2d 1564, 1571-72 (Fed. Cir. 1993); Holmes
v. United States, 657 F.3d at 1317; Welcker v. United States, 752 F.2d at 1580; Japanese
War Notes Claimants Ass'n v. United State§, 373 F.2d at 359.
Based on a liberal construction of plaintiff's pro se pleadings, in Case Number 15-
1501, plaintiff's factual allegations span the time frame of December 15, 2000, when the
USPS allegedly issued plaintiff a "Notice of Suspension of 14 days or Less," through
August 21, 2008, when a USPS agent allegedly delayed processing requested
information from OWCP. In Case Number 15-1200, plaintiff's breach of contract
allegations span the time frame of August 28, 2006, when Lee Bosch allegedly sent
correspondence to OWCP stating that plaintiff's employment was terminated, through
September 8, 2008, when Theresa Miller allegedly sent a CA-7a Time Analysis Form to
OWCP stating that plaintiff was terminated from employment.
Plaintiff's argument that his claims are subject to equitable tolling also is to no avail.
The United States Supreme Court and the United States Court of Appeals for the Federal
Circuit have held that equitable tolling is not available in Tucker Act cases. See John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008); Young v. United States,
529 F.3d 1380, 1384 (Fed. Cir. 2008). In John R. Sand & Gravel Co. v. United States, the
United States Supreme Court articulated that the six-year limitations period in 28 U.S.C.
§ 2501 is jurisdictional in Tucker Act cases, "and not susceptible to equitable tolling." John
R. Sand & Gravel Co. v. United States, 552 U.S. at 755.
Although 28 U.S.C. § 2501 does not provide for equitable tolling, tolling for persons
with a "legal disability" can be recognized, but this does not save plaintiff's claims based
on the facts presented in plaintiff's complaints in either Case Number 15-1501 or Case
Number 15-1200. Section 2501 provides, in pertinent part: "A petition on the claim of a
person under legal disability ... at the time a claim accrues may be filed within three
years after the disability ceases." As stated in Goewey v. United States, "[t]he law
presumes sanity and competency rather than insanity and incompetency." Goewey v.
United States, 612 F.2d 539, 544 (1979). Accordingly, the plaintiff bears a heavy burden
in demonstrating the existence of a disability. ~ "[l]n order to qualify as a statutory 'legal
disability,' the [incompetency] must in some way prevent [the plaintiff's] comprehension
of his legal rights." ~ at 544. Only a "serious impediment can qualify to suspend the
running of the statute . "~
In the present case, plaintiff has not alleged that defendant concealed the actions
which form the basis of the breach claims, or that information regarding the alleged
breaches was inherently unknowable. Plaintiff alleges that, "I only discovered the
breaches after I filed an appeal with the U.S. Merit System Protection Board [MSPB] and
requested my DOL OWCP records, it was only then did I discover that the agency
breached the agreement after reviewing my file with clarity." Plaintiff requested the DOL
OWCP records in December 2013, and his appeal before the MSPB was dismissed in
April 2014. Plaintiff also asserts that he has been "under a legal psychiatric disability since
2000 for post-traumatic stress disorder, major depression, and anxiety." Plaintiff asserts
that in 2007, he was diagnosed with "psychiatric retardation and alcohol abuse."
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Moreover, plaintiff claims that he continued to take high doses of psychiatric medication
and abuse alcohol until 2013.
Plaintiff alleges that he was not aware of his claims until, as part of his MSPB
appeal, he participated in a conference call with Judge Puglia of the United States Merit
Systems Protection Board and he requested his records from the Department of Labor
Officer of Workers' Compensation Program. Plaintiff has not alleged that these records
were unavailable, or that he could not have accessed them, prior to December 2013.
Rather, the record suggests that the documents which plaintiff alleges contain various
breaches of the Settlement Agreement were readily available and that he received them
upon request.
Although the unlabeled medical documents submitted to this court by plaintiff, as
an attachment to his complaint in Case Number 15-1200, suggest various medical issues,
plaintiff's complaint falls short of sufficiently asserting or establishing an inability by
plaintiff to comprehend his legal rights during the relevant statute of limitations time
period. Because the law presumes sanity and competency, plaintiff bears the heavy
burden of overcoming this presumption. See Goewey v. United States, 616 F.2d at 544.
Even a document that plaintiff submitted to the court, labeled as a physician's initial exam
and purportedly a medical record, states that, as of November 14, 2007:
There are no signs of hallucinations, delusions, bizarre behaviors, or other
indicators of psychotic process. Associations are intact, thinking is logical,
and thought content is appropriate. Cognitive functioning and fund of
knowledge is intact and age appropriate. Short and long term memory are
intact. This patient is fully oriented. Vocabulary and fund of knowledge
indicate cognitive functioning in the normal range. Insight into illness is
normal. Social judgment is fair. There are no signs of anxiety. There are no
signs of hyperactive or attentional difficulties.
Plaintiff has not alleged sufficient facts to determine that he suffered from an
alleged disability in 2004 when he was removed from his job at the USPS, or since that
date. Because plaintiff alleges that the USPS committed multiple breaches of the
Settlement Agreement beginning on August 28, 2006 at the latest, plaintiff's claims should
have been filed on or before August 28, 2012, because the statute of limitations began to
run on August 28, 2006, "as soon as all events ha[d] occurred that are necessary to
enable the plaintiff to bring suit." Martinez v. United States, 333 F.3d at 1303.
Furthermore, "[t]he general rule is that after the termination of a legal disability the
statute of limitations commences to run and the tolling is not reinstated by a recurrence
of the disability." Goewey v. United States, 612 F.2d at 546. Even assuming that plaintiff
at one time suffered from a legal disability, the unlabeled documents submitted by plaintiff
indicate that the disability did not exist on November 14, 2007. Once the legal disability
ceases to exist, a plaintiff must file a claim within three years thereafter. See 28 U.S.C. §
2501. Therefore, even if plaintiff's disability terminated on exactly November 14, 2007,
then, if his disability reoccurred later, the statute of limitations would have continued to
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run. Assuming plaintiff had a disability in 2006 when the claim would have otherwise
begun to accrue, plaintiff's cause of action would have expired before either complaint
was filed in this court in 2015. Plaintiff's many causes of action, including the alleged
contract claims, raised by plaintiff in Case Number 15-1501 and Case Number 15-1200
are untimely and, thus, barred from this court's consideration.
Finally, as explained above, Mr. Hood has filed no less than three cases in this
court asserting the same or similar allegations : Hood v. United States, 1: 15-cv-01158;
Hood v. United States, 1:15-cv-1501 ; and Hood v. United States, 1:15-cv-1200; and a
fourth case was sent as a transfer case to this court on May 12, 2016, Hood v. United
States, 1:16-cv-00570 (May 12, 2016), although no transfer complaint has been filed in
this court as of the issuance of this decision. In addition, as cited above, Mr. Hood has
filed at least 16 other, related cases across the federal judiciary system. RCFC 11 grants
this court the authority to impose sanctions on parties who file frivolous or baseless
pleadings. The court may impose RCFC 11 sanctions "in an effort to preserve judicial
resources and deter the filing of frivolous lawsuits." Kissi v. United States, 493 F. App'x
57, 59 (Fed. Cir. 2012) . RCFC 11 states that sanctions should be limited to what is
"sufficient to deter repetition of such conduct or comparable conduct by others similarly
situated," and permits the imposition of nonmonetary sanctions. RCFC 11 requires that,
by filing a complaint in this court, the plaintiff represents that "the claims, defenses, and
other legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for the establishment of new law." RCFC
11 (b)(3). Mr. Hood's complaints in this case include allegations that are not warranted by
existing law and Mr. Hood does not put forth a nonfrivolous argument for extending,
modifying, or reversing well-established existing law that is controlling on the claims
presented in his complaints. Mr. Hood has been informed on multiple occasions by other
federal courts that his claims are time-barred or otherwise fatally flawed. Plaintiff's
purpose in continuing to file complaints putting forth the same allegations, therefore, is
frivolous and wastes valuable court resources. Therefore, the appropriate sanction in this
case is to bar plaintiff from filing any future complaints in this court without an order from
a judge of this court approving such a filing. See Bergman v. Dep't of Comm., 3 F.3d 432,
435 (Fed. Cir. 1993) (barring the filing of future appeals by plaintiff without judicial review
and approval of the appeal after referral to a judge for screening); Kissi v. United States,
493 F. App'x at 59; Aldridge v. United States, 67 Fed. Cl. 113, 124 (2005) ("Plaintiff is
further ORDERED to cease filing any further action related to Plaintiff's eviction from the
Property in the United States Court of Federal Claims. The Clerk of the Court is directed
to accept no filing from Plaintiff, without an Order of the court approving the filing.");
Hornback v. United States, 62 Fed. Cl. 1, 6 (2004) ("To prevent abuse of the judicial
process by plaintiff," the court barred future filings by plaintiff "absent advance written
permission by a judge of this court." (emphasis added)), aff'd, 405 F.3d 999 (Fed . Cir.),
reh'g en bane denied (2005); Anderson v. United States, 46 Fed. Cl. 725, 731 (2000)
("The clerk of the court is further directed not to file any pleadings or documents of any
kind, submitted by plaintiff in this court, without the advance written permission of a judge
from this court."), aff'd, 4 F. App'x 871 (Fed. Cir.), cert. dismissed, 533 U.S. 926, reconsid.
denied, 534 U.S. 809 (2001).
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CONCLUSION
For all the reasons discussed above, plaintiff's vexatious complaints in Case
Number 15-1200 and Case Number 15-1501 are DISMISSED. Plaintiff shall not file
additional complaints arising from the same facts in Case Number 15-1200 and Case
Number 15-1501 in this court without first obtaining leave of a judge of this court.
IT IS SO ORDERED.
ARIAN BLANK HORN
Judge
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