The opinion
ORIGENAL
llntE @niteD btatts @ourt of fe[rrul [.Lailrrs
Pro Se
No. l4-1079C
Filed: September 28, 2015
THOMAS H. PATTON,
28 U.S.C. $ l500; Substantially
Plaintiff, the same operative facts;
I
28 U.S.C. 1631.
THE UNITED STATES OF AMERICA,
FILED
Defendant.
sEP 21 2015
U.S. COURT OF
FEDERALCLAIMS
Thomas H. Patton, Levittown, NY, plaintiff, pro se.
Agatha Koprowski, Trial Attorney, with whom were Benjamin Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Director, Reginald T. Blades, Jr., Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, and Ilene S. Kreitzer, Counsel to the U.S. Merchant Marine Academy, Kings Point, NY, for
Defendant.
OPINION AND ORDER
Kaplan, Judge.
This case is currently before the Court on the govemment's motion to dismiss for lack of
subject matterjurisdiction pursuant to Rules ofthe Court ofFederal Claims (RCFC) l2(b)(l) and
l2(bx6). The p1q se plaintiff, Thomas H. Patton, contends that the United States Department of
Transportation, which operates the United States Merchant Marine Academy (the "Academy''),
breached an agreement it allegedly entered with him that set forth certain terms for his continued
enrollment at the Academy, Mr. Patton alleges that as a result of this breach he was improperly
expelled and/or disenrolled from the Academy. Among other forms ofrelief, he seeks
compensatory damages and reinstatement as a midshipman.
Mr. Patton's breach ofcontract claim was originally brought as part ofa multi-count
complaint he filed against the Department of Transportation, one of its contractors (the Patten
Clinic), and several DOT employees. Compl., Patton v. U.S. Dep't of Transn.. No.2:13-CV-
05646 (E.D.N.Y. Oct. 15,2013), ECF No. l. On August 20,2014, however, the district court in
that action ruled that it lacked jurisdiction over Mr. Patton's contract claim because the damages
requested exceeded the $10,000 threshold for the district court's exercise ofconcurrent
jurisdiction under the Tucker Act. Decision Tr. at l0-11, Patton. No. 2:13-CV-05646, ECFNo.
30; Order, Patton, No.2:13-CV-05646, ECF No.27. At plaintiff s request, the district court
transferred the contract claim to this Court pursuant to 28 U.S.C. $ 1631. Order, Patton, No.
2:13-CY-05646, ECF No. 29.
The United States subsequently filed a motion to dismiss the complaint under Rules
l2(b)(l) and/or l2(b)(6) ofthe Rules ofthe Court ofFederal Claims. Among other things, the
United States argued that this Court lacked Tucker Actjurisdiction over Mr. Patton's contract
claim because, as a member ofthe United States Naval Reserve, any rights bestowed upon him
with respect to his enrollment in the Merchant Marine Academy were based upon statute and
regulation, and not upon contract. Def.'s Mot. to Dismiss 6-7, ECF No. 4. It also argued that
Tucker Actjurisdiction would not lie even if Mr. Patton could demonstrate that he entered a
binding contract with the United States because the contract could not be fairly interpreted as
providing a right to damages for its breach. Id. at 7.
On May 20, 2015, after the parties completed briefing on the govemment's motion to
dismiss, the Court requested supplemental briefing on the issue of whether the jurisdictional bar
set forth in 28 U.S.C. $ 1500 was applicable. Order for Suppl. Briefing, ECF No. 10. Pursuant
to that provision, the United States Court ofFederal Claims "shall not have jurisdiction ofany
claim for or in respect to which the plaintiffor his assignee has pending in any other court any
suit or process against the United States or any person who, at the time when the cause ofaction
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 parties have now filed their supplemental briefs concerning the applicability of28
U.S.C. $ 1500. For the reasons set forth below, the Court concludes that the jurisdictional bar set
forth in that statute applies here. Accordingly, this case mustbe dismissed for lack ofsubject
matter iurisdiction.
BACKGROUND
I. The Present Complaint
Mr. Patton alleges that on June 8, 201 I, while a midshipman at the Academy, he entered
what he characterizes as an "agreement" setting forth the conditions under which he would be
permitted to complete his studies and graduate. Compl. fl l0; Compl. Ex. B. The agreement, he
contends, is set forth in a letter to him ofthat date from the Superintendent ofthe Academy. The
letter (entitled "TERMS OF PROBATION') conveyed the Superintendent's decision after
"careful review of [Mr. Patton's] academic record" that he would be subject to certain
"additional academic terms in regard to [his] Deferred Graduate status." Compl. Ex. B. Among
other things, the letter required that by November 1,2011, Mr. Patton complete 56 sea days,
perfiorm 240 hours of extra duty, and take a Humanities class. !!
Mr. Patton alleges that when he retumed to the Academy in early June of 201 I, he "made
extensive efforts to arrange for sea duty, including making numerous phone calls to two different
Academy Training Representatives ('ATR') to arrange for sea duty." Compl. fl 12. He further
claims that the ATRs informed him that he could not participate in sea duty until he was cleared
for such by the Patten Clinic. ld. I Mr. Patton alleges that he was examined at the Patten Clinic
on June 14, 201 I by Dr. Ronald Feinstein, who checked boxes on the medical examination form
indicating that Mr. Patton was "recommended competent" and was "qualified for service." Id.
!l 14; Compl. Ex. D. Mr. Patton alleges that Dr. Feinstein nonetheless advised him that he was
not fit for sea duty because he had high blood pressure. Compl. !l 15.2
On June 28, 201I, Mr. Patton was verbally directed to complete the 240 hours ofextra
duty required by the June 8, 201I letter. Id. !l 20. He met the requirement by assisting in the
new student indoctrination program on campus through late August. Id. fl 21.
Thereafter, Mr. Patton alleges he again made efforts to contact an ATR to arrange his sea
duty, but was told by the Academy's dean that he had not been cleared by the Patten Clinic, and
that he was still required to secure such clearance in order to perform sea duty. Id.11122-23. ln
an effort to secure clearance from the Patten Clinic, Mr. Patton underwent blood pressure testing
on September 23, 201 l, the results ofwhich, he contends, showed that he was fit for sea duty.
' According to Mr. Patton, the Patten Clinic is a health clinic that is "owned, operated and/or
maintained by the United States Department of Transportation" and is "responsible for the
overall management ofthe medical care, dental care and emergency services for the officers of
the United States Merchant Marine." Compl. fl 9.
2
Mr. Patton's medical records were reviewed the same day by the Bureau of Medicine and
Surgery of the Department of the Navy ("BUMED"), which found that he did not meet
established physical standards due to a history of lumbar degenerative disc disease. Compl. ,lf 16;
Compl. Ex. E. It recommended that Mr. Patton receive a waiver of physical standards, which
Mr. Patton alleges meant that BUMED had found him physically fit. Compl. fl 17.
ld. atl26; Compl. Ex. H. Mr. Patton also alleges that an October 4, 2011 medical consultation
report (which was not made available to him) stated that he was "ok to go to see [sic]." Compl.
1l\22-28; Compl. Ex. I.
According to Mr. Patton, at some point thereafter, Dr. Feinstein refened him for testins
for sleep apne4 notwithstanding that he was not suffering from any symptoms ofsleep apnea.
Compl. !129; Compl. Ex. J. He ultimately underwent such testing on November 21, 2011, and
was reported to have shown "no significant sleep disordered breathing." Compl. Ex. J.
In the meantime, by letter of November 9, 201 1, the Academy's Interim Superintendent
and Academic Dean (Dr. Shashi Kumar) advised Mr. Patton that the Academy had decided to
disenroll him upon "careful review of [his] academic record" because he had failed to meet the
requirements for graduation by November l, 2011, as specified in the June 8, 2011 Terms of
Probation letter. Compl. fl 3 l; Compl. Ex. K. Mr. Patton requested that Dr. Kumar reconsider
his decision but Dr. Kumar allegedly refused to do so. Compl. fl 34.
Mr. Patton contends that "[a] key basis for Kumar's decision to disenroll [him] was his
beliefthat Plaintiffwaited until September 9, 2011, to first contact an ATR to arrange for sea
duty." Id. fl 32. He alleges that this belief was incorrect because he had made "extensive efforts
to arange for sea dutf' but had been informed by the ATRs that he needed clearance from the
Patten Clinic. Id. Mr. Patton claims that "[e]ven though Kumar could have easily verified the
inaccuracy ofhis belief, he never did so and stood by his sole decision to disenroll Patton, even
though it was based on erroneous information." Id. Jl 33. He further alleges that 'lhe only
reason that [he] did not complete his sea project was because ofthe interference and delays
caused by Defendants, including the Patten Clinic, the Academy, and the members ofthe
Academy's staff." Id. fl 36. In particular, he alleges that the Patten Clinic deliberately
misdiagnosed him as suffering from high blood pressure and sleep apnea in order to preclude
him from completing his sea duty and meeting the conditions set for his graduation. Id. flfl 37-
42.
According to Mr. Patton, the actions described above prevented him from abiding by
certain terms of the alleged agreement, and the Academy's decision to expel/disenroll Mr. Patton
constituted a breach ofthat agreement. Id. flfl 53-55. He seeks damages for injuries he sustained
as a result ofthe alleged breach, as well as reinstatement to the Academy. Id. at 10.
IL The District Court Action
As described above, Mr. Patton initiated an action in the United States District Court for
the Eastem District of New York on October 15,2013. Compl., Patton, No. 2:13-CY-O5646,
ECF No. 1. The defendants named in the district court complaint were the Department of
Transportation, the Academy, the Patten Clinic, Dr. Feinstein, Dr. Kumar, and John Does 1-10,
identified as "agents, employees and/or officers ofthe United States Department of
Transportation and/or the Academy." The factual allegations in the complaint are largely the
same as those made in the complaint before this Court, described above. Id. !f!J l-40.
The complaint included six counts, including: (l) violation ofprocedural due process
under the Fifth Amendment; (2) viotation of substantive due process under the Fifth
Amendment; (3) breach of contract; (4) interference with contract; (5) fraud; and (6) breach of
fiduciary duty. Id. fl 55-84. The govemment moved to dismiss Mr. Patton's complaint in its
entirety. As discussed above, the district court concluded that Mr. Patton's claim for breach of
contract was within the exclusive jurisdiction ofthe Court ofFederal Claims, and granted in part
and denied in part the govemment's motion as to Mr. Patton's other claims. See Order, Patton.
No. 2:13-CV-05646, ECF No. 27. After the district court transferred Mr. Patton's breach of
contract claim to this Court, Mr. Patton filed an amended complaint in the district court. Am.
Compl., Patton, No. 2:13-CV-05646, ECF No. 3l; Compl. fl 3. As ofthe date of this opinion, the
district court case is still pending.
DISCUSSION
I. Standards for Motion to Dismiss Pursuant to RCFC 12(bX1)
In deciding a motion to dismiss for lack ofsubject matterjurisdiction, the court accepts as
true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe
plaintiff. Trusted Intesration. Inc. v. United States, 659 F.3d 1159, I163 (Fed. Cir. 201 l). The
court may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.
United States, 933 F.2d 991,993 (Fed. Cir. 1991). It is well established that complaints that are
filed by pro se plaintiffs, as this one is, are held to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even plq !9
plaintiffs must persuade the Court that jurisdictional requirements have been met. Bemard v.
United States. 59 Fed. Cl. 497, 499 (2004), affd. 98 Fed. App'x 860 (Fed. Cir. 2004).
II. Tucker Act Jurisdiction
The Court ofFederal Claims has jurisdiction under the Tucker Act "to renderjudgment
upon any claim against the United States founded either upon the Constitution, or any Act of
Congress or any regulation ofan 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. $ 1a9l(a)(1) (2012). The Tucker Act also grants this court jurisdiction to grant
equitable and declaratory relief, but only when such reliefis "an incident ofand collateral to" a
moneyjudgment. Id. $ 1491(a)(2); Bobula v. U.S. Dep't of Justice. 970F.2d 854, 859 (Fed. Cir.
1992).
The Tucker Act waives the sovereign immunity of the United States to allow a suit fot
money damages, United States v. Mitchell.463 U.S. 206,212 (1983), but it does not confer any
substantive rights on a plaintifi United States v. Testan, 424 U.5.392,398 (1976). Therefore, a
plaintiffseeking to invoke the court's Tucker Actjurisdiction must identiff an independent
source ofa substantive right to money damages from the United States arising out ofa contract,
statute, regulation, or constitutional provision. Jan's Helicooter Serv.. Inc. v. Fed. Aviation
Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).
rrr. 28 u.s.c. s 1s00
As noted above, 28 U.S.C. $ 1500 provides that the United States Court of Federal
Claims "shall not have jurisdiction ofany claim for or in respect to which the plaintiffor his
assignee has pending in any other court any suit or process against the United States or any
person who, at the time when the cause ofaction alleged in such suit or process arose, was, in
respect thereto, acting or professing to act, directly or indirectly under the authority ofthe United
States." Two inquiries are thus required to determine whether $ 1500 applies: "( I ) whether
there is an earlier-filed suit or process pending in another court, and, if so, (2) whether the claims
asserted in the earlier-filed case are for or in respect to the same claim(s) asserted in the later-
filed Court ofFederal Claims action." Brandt v. United States. 710 F.3d 1369, 1374 (Fed. Cir.
2013) (quotations omitted). With respect to the second inquiry, the Supreme Court has held that
"[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Court of
Federal Claimsl, ifthey are based on substantially the same operative facts, regardless ofthe
reliefsought in each suit." United States v. Tohono O'Odham Nation. 131 S.Ct. 1723, l73l
(201 1). "[I]t is irrelevant whether the relief sought in the two co-pending suits is the same or
different (e.g., injunction versus money damages). All that matters is that the two suits be based
on 'substantially the same operative facts."' Ministerio Roca Solida v. United States, 778 F.3d
1351, 1354 (Fed. Cir.2015) (citation omitted) (quoting Tohono, l3l S.Ct. at 1731).
IV. Application of Standards
A. Pending Darlier-Filed Suit
As noted, in order to determine whether section 1500 bars this suit, the Court must first
determine whether there was an earlier-filed suit or process pending in another court at the time
this case was filed. In this case, that requirement has been met.
Pursuant to 28 U.S.C. $ 1631, a claim that is transferred "shall proceed as if it had been
filed in or noticed for the court to which it is transfened on the date upon which it was actually
filed in or noticed for the court from which it was transferred." The court of appeals has held
that this provision means that "the court receiving a transferred claim must treat the claim as if it
were filed at the same moment the claim was filed originally in the first court." Griflin v. United
States, 590 F.3d 1291, 1293 (Fed. Cir. 2009) (citing United States v. County ofCook. 170 F.3d
1084, 1090 (Fed. Cir. l999)). It has further held that if claims are filed simultaneously in both
the district court and the Court ofFederal Claims, then the claim filed in the district court will be
treated as "pending" for purposes ofsection 1500. Id. "Therefore, ifa plaintifffiles multiple
related claims in district court, and the court transfers one ofthose claims to the Court ofFederal
Claims, the original claims are 'pending' at the time the transferred claim is considered filed, and
$ 1500 may deprive the Court ofFederal Claims ofjurisdiction over the transfened claim." Ic,
B. Nature of the Claims
The second inquiry for the Court-whether the claims asserted in the earlier-filed case
are "for or in respect to the same claim(s) asserted" in this action-must also be answered in the
affirmative. The complaint in the district court and complaint filed here clearly involve
9
"substantially the same operative facts." See Tohono O'Odham Nation. 131 S. Ct. at 173 l. In
both cases, Mr. Patton alleges that he was prevented from meeting the conditions for graduation
set forth in the June 8, 201 I letter because ofthe actions ofthe United states or "persons acting
or professing to act, directly or indirectly under the authority of the United States"-i.e', the
Patten Clinic. Dr. Feinstein, Dr. Kumar, and the other unnamed Academy employees who are
named as defendants in the district court. He claims in both complaints, and in virtually the
same language, that these wrongful actions led to the same injury-his disenrollment/expulsion
from the Academy. Indeed, in the district court action he has characterized the very same
conduct that is here claimed to constitute a breach of contract as either tortious, a breach of
fiduciary duty, or unconstitutional under the Fifth Amendment. See Am. Compl., Patton. No.
2:13 -CY -05646, ECF No. 3 l.
In short, in this case, Mr. Patton has "filed two nearly identical complaints that, at best,
repackage[] the same conduct into two different theories." Cent. Pines Land Co. v. United
States,697 F.3d 1360,1364-65 (Fed. Cir.2012). Thus, because section 1500's applicability
depends upon whether the operative facts overlap, and not on whether the two suits involve the
same causes ofaction or requests for relief, Mr. Patton's claims in the district court are "for or in
respect to the same claim(s) asserted" in this Court. Therefore, 28 U.S.C. $ 1500 applies and this
Court lacks jurisdiction over Mr. Patton's breach ofcontract claim.
V, Request for Transfer
Mr. Patton has requested that this Court transfer the case back to the district court if it
concludes that section 1500 is applicable. Pursuant to 28 U.S.C. $ 1631, where it is in the
interest ofjustice, a court may transfer a case over which it lacks jurisdiction "to any other such
court in which the action . . . could have been brought at the time it was filed." ln this case,
l0
however, the district court has already concluded (correctly) that it lacked jurisdiction over Mr.
Patton's contract claim. Because the district court is not a court in which this suit "could have
been brought at the time it was filed," and because any transfer back to that court would be futile,
Mr. Patton's reouest for a transfer must be denied.
CONCLUSION
The govemment's Motion to Dismiss pursuant to RCFC 12(b)(l) is GRANTED and this
case is DISMISSED without prejudice. Each side shall bear its own costs' The Clerk of the
Court is directed to enterjudgement accordingly.
IT IS SO ORDERED.
ELAINE D. KAPLAN
Judge
ll