Gelb v. United States

In the United States Court of Federal Claims
No. 23-203C
Filed: March 30, 2023
NOT FOR PUBLICATION
BERNARD GELB,
Plaintiff,
v.
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The plaintiff, Bernard Gelb, acting pro se, filed this action against the United States,
acting through the Defense Finance and Accounting Services (“DFAS”). The plaintiff alleges
that he and DFAS agreed to a Freedom of Information Act (“FOIA”) contract, in which the
plaintiff agreed to pay a fee in exchange for receipt of documents he requested from DFAS under
the FOIA, 5 U.S.C. § 552.
Even if the complaint is construed liberally, the plaintiff has not demonstrated the
existence of subject-matter jurisdiction in the Court of Federal Claims over his claims. Although
the plaintiff characterizes his claims as arising under a contract, the claims more plausibly
implicate the timeliness requirements of the FOIA. The FOIA requires such claims to be filed in
federal district courts, not the Court of Federal Claims. Transfer of this case to the United States
District Court for the District of Columbia is therefore appropriate.
I. BACKGROUND
At this stage of the case, the facts alleged in the plaintiff’s complaint are assumed to be
true. This summary of the facts does not constitute findings of fact but is simply a recitation of
the plaintiff’s allegations.
The plaintiff alleges that on March 11, 2021, he requested that DFAS produce “stale-
dated outstanding check lists for all – Outstanding and Unpresented Checks not submitted for
payment for businesses, contractors, suppliers and vendors checks issued and payable in the
years 2017, 2018, 2019, and 2020 that are still outstanding and unpaid.” (Compl. ¶ 12
(capitalization in original).)
On April 15, 2021, DFAS sent the plaintiff a document in which DFAS agreed to
produce the requested documents if the plaintiff paid a fee of $4,608. (Id. ¶¶ 13-14.) On
October 6, 2021, the plaintiff indicated his “willingness to pay” the fee in exchange for DFAS’s
production of the documents. (Id. ¶¶ 15-18.) The plaintiff has not attached this exchange of
letters to the complaint.
The plaintiff alleges that, through this exchange of letters with DFAS, he effected a
contract with DFAS because the parties “had a mutual intent to contract including an offer on
April 15, 2021, an acceptance on October 6, 2021, and consideration [of the plaintiff’s]
‘willingness to pay’ $4,608.00 fee for the stale-dated outstanding checks listings.” (Id. ¶ 19.)
The plaintiff alleges that by failing to produce the documents, DFAS has breached the
contract and caused the plaintiff damages of more than $10,000. (Id. ¶¶ 27-36.) The plaintiff
also alleges that the defendant “has breached the covenant of good faith and fair dealing by
failure to cooperate, obstructed and stonewalled compliance of the contract as part of a scheme to
deprive the Plaintiff of the benefit of its bargain with specific intent to get [ ] rid of Plaintiff.”
(Id. ¶ 42.) The plaintiff seeks a “money judgment in an amount according to proof at trial” and
the costs of the suit. (Id. ¶ 43.)
The plaintiff filed the complaint on February 9, 2023. On February 21, 2023, the Court
directed the plaintiff to show cause why the case should not be transferred to the U.S. District
Court for the Eastern District of New York, which has subject-matter jurisdiction over the
plaintiff’s claims arising under the FOIA.
The plaintiff responded on February 23, 2023. The plaintiff argued that all elements of
an express contract were met, and that the Court of Federal Claims, not the district court,
therefore had subject-matter jurisdiction over the case pursuant to the Tucker Act. The
defendant responded on March 21, 2023, arguing that district courts have sole jurisdiction over
the claims raised by the plaintiff. The plaintiff filed a reply brief on March 27, 2023, reasserting
his arguments that a valid contract was formed between the plaintiff and the United States, and
that he was seeking damages pursuant to that contract.
The Court held a telephonic hearing on the order to show cause on March 30, 2023.
II. STANDARD OF REVIEW
The plaintiff has the burden of establishing jurisdiction by a preponderance of the
evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). To
determine jurisdiction, the “court must accept as true all undisputed facts asserted in the
plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Id. When a
plaintiff’s jurisdictional facts are challenged, only those factual allegations that the government
does not controvert are accepted as true. Shoshone Indian Tribe of Wind River Rsrv., Wyo. v.
United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). A federal court is not “‘restricted to the
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face of the pleadings’” in resolving disputed jurisdictional facts. Id. (quoting Cedars-Sinai Med.
Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993), cert. denied, 512 U.S. 1235 (1994)).
The plaintiff is proceeding pro se. As a result, his pleadings are entitled to a more liberal
construction than the Court would give to pleadings prepared by a lawyer. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972). Giving a pro se litigant’s pleadings a liberal interpretation and
construction does not divest a pro se plaintiff of the burden to demonstrate that the allegations of
the complaint satisfy the jurisdictional requirements that limit the types of claims the Court of
Federal Claims may entertain. See Spengler v. United States, 688 F. App’x 917, 920 (Fed. Cir.
2017).
In construing a pro se litigant’s pleadings liberally, a court does not become an advocate
for that litigant. Rather, the court ensures that the pro se litigant’s pleadings are construed in a
manner that gives the litigant every opportunity to make out a claim for relief.
III. JURISDICTION
The Tucker Act provides the Court of Federal Claims with “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).
The Tucker Act “generally vests the Court of Federal Claims with jurisdiction to render
judgment in government contract disputes,” PSEG Nuclear, L.L.C. v. United States, 465 F.3d
1343, 1349 (Fed. Cir. 2006), but “the existence of a contract does not always mean that Tucker
Act jurisdiction exists.” Boaz Hous. Auth. v. United States, 994 F.3d 1359, 1365 (Fed. Cir.
2021). The Court of Federal Claims does not have jurisdiction over government contract
disputes when “Congress grants exclusive jurisdiction over a contract dispute to another court.”
PSEG Nuclear, 465 F.3d at 1349. When the claims at issue implicate an agency’s authority
under a statute that is not money-mandating rather than the allegedly breached contract
provision, the Court of Federal Claims lacks jurisdiction to resolve the claims. Id. at 1349-50.
The FOIA requires agencies to “make records promptly available to any person” upon
request so long as the request “reasonably describes such records and . . . is made in accordance
with published rules stating the time, place, fees (if any), and procedures to be followed.”
5 U.S.C. § 552(a)(3)(A). The FOIA grants agencies the authority to promulgate regulations
regarding fees. Id. § 552(a)(4)(A)(i). The FOIA provides specific time limits for agency
responses to FOIA requests. Id. § 552(a)(6). The FOIA also specifies the appropriate courts for
timeliness disputes arising under the FOIA:
On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business,
or in which the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from withholding
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agency records and to order the production of any agency records
improperly withheld from the complainant.
Id. § 552(a)(4)(B).
The plaintiff’s allegations fail to make out the existence of a contract. Rule 9(k) of the
Rules of the Court of Federal Claims provides: “In pleading a claim founded on a contract of
treaty, a party must identify the substantive provisions of the contract or treaty on which the
party relies. In lieu of a description, the party may annex to the complaint a copy of the contract
or treaty, indicating the relevant provisions.” The plaintiff has neither attached a copy of the
“FOIA Contract” to his complaint nor described with specificity the contract provisions on
which he relies.
Additionally, by informing the plaintiff of the need to pay for the search and production
of the documents requested under the FOIA, DFAS was merely complying with the requirements
of the statute and its implementing regulations. That request for payment does not constitute an
offer to contract with the plaintiff. DFAS was simply informing the plaintiff of the costs and
obtaining his consent to proceed under the FOIA. Statutes are presumed not to create contractual
rights. Nat’l R.R. Passenger Corp. v. Atchison Topeka Santa Fe Ry. Co., 470 U.S. 451 (1985).
To overcome that presumption and determine that a contact has arisen from compliance with a
statute, “courts first look to the language of the statute.” Am. Bankers Ass’n v. United States,
932 F.3d 1375, 1382 (Fed. Cir. 2019). The FOIA does not contain any of the indicative language
courts have relied on to find the existence of a contract based on compliance with a statute. See
id.Even assuming for the sake of argument that the plaintiff has alleged the existence of a
contract by agreeing to pay a fee in return for DFAS promising to produce to him the requested
documents, the plaintiff’s claim falls outside the jurisdiction of the Court of Federal Claims.
The FOIA governs agencies’ production of records to public parties upon request. The
plaintiff challenges the timeliness of DFAS’s production of the documents he requested as a
breach of a “FOIA Contract.” The plaintiff’s claim necessarily implicates the time limit imposed
by the FOIA rather than a breach of contract. See 5 U.S.C. § 552(a)(6). The supposed offer
from DFAS is not alleged to have promised the plaintiff the production of the documents under
any deadline. The plaintiff is imputing the FOIA’s deadline as an element of the contract, but
that imputation contravenes the presumption of National Railroad Passenger Corporation,
supra. Further, nowhere in the supposed offer from DFAS to the plaintiff has the defendant
indicated a willingness to waive its sovereign immunity and pay contract damages for a “breach”
of the alleged “contract.”
The plaintiff’s claim must be taken as one to enforce the defendant’s obligations under
the FOIA. Congress has specified that only federal district courts have jurisdiction to render
judgment in disputes arising out of the FOIA. Id. § 552(a)(4)(B). The FOIA is not money-
mandating, and the Court of Federal Claims lacks subject-matter jurisdiction over claims arising
under the FOIA. E.g., Frazier v. United States, 683 F. App’x 938, 940 (Fed. Cir. 2017).
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The plaintiff argues that his request for money damages rather than injunctive relief
brings his claim within the ambit of the Tucker Act, making the exercise of subject-matter
jurisdiction appropriate. In Boaz Housing Authority, the Federal Circuit explained that when
relief for breach of contract could be non-monetary (i.e., specific performance), “the court may
require a demonstration that ‘the agreement[ ] could fairly be interpreted as contemplating
monetary damages in the event of breach.’” 994 F.3d at 1365 (quoting Higbie v. United States,
778 F.3d 990, 993 (Fed. Cir. 2015)). The plaintiff has not demonstrated that the alleged FOIA
contract contemplates monetary damages for DFAS’s failure to respond to the plaintiff in a
timely manner. In general, “no money damages are available under FOIA. The sole remedy
available to a requester is injunctive relief—the court can compel an agency to produce
documents or enjoin an agency from improperly withholding documents.” Roman v. Nat’l
Reconnaissance Off., 952 F. Supp. 2d 159, 163 (D.D.C. 2013).
The plaintiff relies on Rogers v. Executive Office for United States Attorneys, 2019 WL
1538252, Civil Action No. 18-454, at *8-11 (D.D.C. Apr. 9, 2019), for the proposition that “the
sole remedy for a breach of a FOIA Contract Claim by the federal government for money
damages, falls within the purview of the Tucker Act, 28 U.S.C. § 1491(a)(1) (2018) and
jurisdiction is the United States Court of Federal Claims.” (Pl.’s Reply at 4 (emphasis in
original).)
In that case, however, “the plaintiff effectively waived his right to disclosure of the
requested documents pursuant to the FOIA upon execution of [a] Settlement Agreement.”
Rogers, 2019 WL 1538252, at *5. In this case, the plaintiff has not alleged the existence of any
agreement apart from the alleged FOIA contract. Moreover, the district court’s interpretation in
Rogers of the subject-matter jurisdiction of the Court of Federal Claims under the Tucker Act
was an incomplete summary not necessary to the decision in that case. The district court in
Rogers decided only that it lacked subject-matter jurisdiction; it did not affirmatively hold that
the Court of Federal Claims had jurisdiction, and its brief reference to the Tucker Act is dictum
limited to the distinct facts of that case. Id. at 6.
The plaintiff also analogizes this case to Fisher v. United States, 128 Fed. Cl. 780 (2016).
In Fisher, another judge of this court exercised subject-matter jurisdiction in a dispute arising out
of contracts for paid access to court records through PACER. Id. at 785. In that case, however,
although a statute authorized the Administrative Office of the United States Courts to administer
the PACER program, the statute did not specify the court in which subject-matter jurisdiction
was proper and did not preclude the Court of Federal Claims from exercising jurisdiction. Id. at
785-86 (analyzing 28 U.S.C. § 1913).
The FOIA, by contrast, specifies the appropriate courts with jurisdiction over disputes
arising out of that statute. The Federal Circuit has consistently held that the Court of Federal
Claims lacks subject-matter jurisdiction over claims implicating the FOIA. See Frazier, 683 F.
App’x at 940; Snowton v. United States, 216 F. App’x 981, 983 (Fed. Cir. 2007); Conner v.
United States, 641 F. App’x 972, 975 (Fed. Cir. 2016); Terio v. United States, 104 F. App’x 174,
174 (Fed. Cir. 2004).
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The plaintiff also argues that jurisdiction in the Court of Federal Claims is proper because
the plaintiff has alleged that DFAS has breached the implied covenant of good faith and fair
dealing. “The covenant of good faith and fair dealing is an implied duty that each party to a
contract owes to its contracting partner.” Centex Corp. v. United States, 395 F.3d 1283, 1304
(Fed. Cir. 2005) (emphasis added). In considering such a claim, a court must “take account of
the particular contract at issue in considering a claim of breach of the good-faith-and-fair-dealing
duty implicit in that contract.” Metcalf Constr. Co., Inc. v. United States, 742 F.3d 984, 992
(Fed. Cir. 2014). In the absence of a contract reviewable in the Court of Federal Claims, the
plaintiff’s claim that DFAS breached the implied covenant of good faith and fair dealing cannot
stand on its own. This claim does not provide an independent basis for subject-matter
jurisdiction.
In sum, the Court of Federal Claims lacks subject-matter jurisdiction over the plaintiff’s
claim arising under the FOIA. Even accepting the plaintiff’s allegation that the plaintiff and
DFAS have formed a contract, the plaintiff’s claims are predicated on the FOIA, which specifies
the courts in which subject-matter jurisdiction is proper.
IV. TRANSFER
When a civil action is filed in a court that lacks 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 . . . .” 28 U.S.C. § 1631. “The phrase
‘if it is in the interest of justice’ relates to claims which are nonfrivolous and as such should be
decided on the merits.” Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir.
1987).
The plaintiff has alleged a nonfrivolous claim that DFAS has failed to comply with the
requirements of the FOIA. That claim should thus be decided on the merits by a court of
competent jurisdiction. See id. The plaintiff has expressed a preference for transferring the case
to the U.S. District Court for the District of Columbia. (Pl.’s Resp. at 7.) The plaintiff could
have filed his claim in that court in the first instance. See 28 U.S.C. § 1631; 5 U.S.C.
§ 552(a)(4)(B). Accordingly, transfer to the U.S. District Court for the District of Columbia is
appropriate.
V. CONCLUSION
The Court lacks subject-matter jurisdiction over the plaintiff’s claims. The Clerk is
DIRECTED to transfer this case to the United States District Court for the District of Columbia
pursuant to 28 U.S.C. § 1631 and to close the case.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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