Zainulabeddin v. United States

FILED

JUN 2 0 2018

U.S. COURT OF

, ,fEQ~RAL CLAIMS

3Jn tbe ~n1teb ~tates q[:ourt of jfeberal q[:la1ms

No. 17-1955C

(Filed: June 20, 2018)

************************************* Pro Se Plaintiff; In Forma Pauperis; RCFC

NAUSHEEN ZAINULABEDDIN, * 12(b)(l); Subject Matter Jurisdiction;

* RCFC 12(b)(6); Failure to State a Claim

Plaintiff, * Upon Which This Court Can Grant Relief;

* Proper Defendant; Regulatory Taking;

v. * Administrative Procedure Act; Section 504

* of the Rehabilitation Act of 1973; Breach

THE UNITED STATES, * of Contract; RCFC 9(k); Collateral Attack

* Against the Decisions of Other Courts;

Defendant. * Authority to Grant Injunctive Relief; 28

************************************* U.S.C. § 1500

Nausheen Zainulabeddin, Tampa, FL, pro se.

Barbara E. Thomas, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

In this case, plaintiffNausheen Zainulabeddin, proceeding prose, alleges that the

University of South Florida ("USF") Morsani College of Medicine ("Morsani") discriminated

against her while she was in attendance, the United States Department of Education's Office of

Civil Rights ("OCR") violated the Administrative Procedure Act and breached a contract in

failing to conduct a proper investigation into the alleged discrirrllnation, and various federal

courts improperly dismissed her appeals of the OCR's actions. Ms. Zainulabeddin seeks various

forms of monetary and injunctive relief. Currently before the court is Ms. Zainulabeddin's

motion to proceed in forma pauperis and defendant's motion to dismiss Ms. Zainulabeddin's

complaint for lack of subj ect matter jurisdiction or, alternatively, for failure to state a claim upon

which this court can grant relief. As explained below, although Ms. Zainulabeddin has met the

requirements to proceed in forma pauperis, the court lacks jurisdiction to consider her claims.

Therefore, the court grants both pending motions and dismisses the complaint.

I. BACKGROUND

Ms. Zainulabeddin completed a master's degree at USF in medical sciences, with a

concentration in anatomy, in 2009. 1 While in graduate school, she was informally diagnosed

1

The facts discussed herein are taken from the complaint, the materials attached to the

complaint, the parties' submissions, and matters of which the court may take judicial notice

with Attention Deficit Hyperactivity Disorder ("ADHD"). Her academic performance improved

after she received a prescription for Adderall. Upon completion of her master's degree program,

Ms. Zainulabeddin was admitted to Morsani. She began medical school in August 2009.

In March 2010, after experiencing academic difficulties, Ms. Zainulabeddin began taking

antianxiety medication and asked Steven Specter, the Associate Dean for Student Affairs at

Morsani, whether she should take a leave of absence to undergo further testing and evaluation to

determine whether she suffered from a learning disability that was impacting her studies.

Although the student handbook listed a leave of absence as an appropriate intervention in certain

circumstances, Dr. Specter advised Ms. Zainulabeddin to do her best in attempting to finish the

2009-10 academic year. However, in the spring of 2010, she failed the Year 1 Comprehensive

Exams. Morsani then advised Ms. Zainulabeddin that she would be required to repeat her first

year of medical school and obtain a comprehensive assessment of her learning style, i.e., a

neuropsychological evaluation paid for by the medical school, and would be placed on academic

probation.

Ms. Zainulabeddin underwent the required neuropsychological evaluation in August and

September 2010. She was orally advised that anxiety was the likely cause of her academic

difficulties and that she should seek appropriate treatment. Accordingly, she did not seek further

treatment at that time for ADHD. She did not receive a written copy of the final evaluation

results, but met with Dr. Specter in October 2010. Dr. Specter, allegedly having mixed up Ms.

Zainulabeddin's evaluation with that of another student, informed Ms. Zainulabeddin that her

evaluation results did not indicate that she needed academic accommodations. After successfully

completing her first-year curriculum during the 2010-2011 academic year as a repeating student,

she was removed from academic probation.

Ms. Zainulabeddin failed one of her second-year courses in September 2011, but was

able to remediate the course. In December 2011, she failed another course, and was dismissed

from Morsani on January 5, 2012. On February 5, 2012, Ms. Zainulabeddin received a written

copy of her neuropsychological evaluation for the first time, which indicated that she suffered

from ADHD and anxiety and, accordingly, should qualify for reasonable academic

accommodations. On February 21, 2012, Morsani reversed its dismissal but required Ms.

Zainulabeddin to repeat her second year of medical school on academic probation. By that time,

she had paid over $90,000 for six semesters of medical school by taking out student loans, but

had only completed one year (2010-2011) successfully.

Believing that she had been forced to withdraw due to (I) exceptional circumstances

beyond her control and (2) error on the part of Morsani, Ms. Zainulabeddin sought

reimbursement of the tuition she had paid for the 2009-2010 and 2011-2012 academic years.

Ms. Zainulabeddin contended that had she been treated medically for ADHD and received

appropriate accommodations, she would have succeeded academically without having to repeat

courses. She blamed Morsani for providing inaccurate information regarding the results of her

pursuant to Rule 201 of the Federal Rules of Evidence. The court accepts Ms. Zainulabeddin's

allegations as true for purposes ofresolving the instant motions.

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neuropsychological evaluation, which she alleges prevented her from receiving proper treatment

and academic accommodations. Although Ms. Zainulabeddin received a partial refund for the

2011-2012 academic year, the remainder of her tuition refund request was denied.

In accordance with the February 2012 readmission decision, Ms. Zainulabeddin re-

enrolled as a second-year medical student on July 23, 2012, on academic probation status.

During the 2012-2013 academic year, she received classroom and testing accommodations

through the USF Students With Disabilities Services office. As a repeating student receiving

accommodations, Ms. Zainulabeddin alleges that she was discriminated against by some of her

professors by being held to higher academic standards than her fellow medical students. She was

assigned failing grades in two courses on March 13, 2013. The following day, Morsani's

Academic Performance Review Committee dismissed Ms. Zainulabeddin from the program. She

alleges that had she not been on academic probation at the time, she would not have been subject

to dismissal until failing an entire semester or year, rather than only two individual courses. She

was allowed to remediate the two failed courses while appealing the dismissal. Her appeal was

denied by the review committee on April 5, 2013, and by the dean of the medical school on May

28, 2013. In the interim, Ms. Zainulabeddin had successfully remediated the two courses she

had failed, thus completing her second year of medical school.

Ms. Zainulabeddin's second tuition refund request for the full 2009-2010 and 2011-2012

academic years was denied on July 30, 2013. She later continued her medical studies at Atlantic

University School of Medicine ("Atlantic"), a private medical school in Saint Lucia, as a rising

third-year student. 2 •3

On March 20, 2014, Ms. Zainulabeddin filed a complaint with the OCR, alleging that she

had been subject to discrimination throughout medical school on account of her disability. Her

complaint was assigned case number 04-12-2321. The OCR dismissed her complaint as

untimely on April 9, 2014.

In June 2014, having waited the required one-year interval following her dismissal, Ms.

Zainulabeddin petitioned for readmission to Morsani. She contended that she had been

inappropriately placed on academic probation, thus leading to her dismissal from the medical

school without the opportunity to appeal the failing grades she had received. She also requested

2

The record before the court contains scant information concerning Ms. Zainulabeddin' s

time at Atlantic, which is no longer accredited by the World Health Organization. However,

such information is not necessary for resolving the pending motions.

3

At the time she filed the instant complaint, Ms. Zainulabeddin was pursuing a Master

of Business Administration degree at Davenport University, which she began at the same time

she transferred to Atlantic. As an offshore medical school, Atlantic students are not eligible to

receive federal student aid; Atlantic encouraged its students to simultaneously enroll at

Davenport University (which participates in the federal student aid programs administered by the

United States Department of Education) so they could access federal student loans to pay for

living expenses while in medical school.

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a tuition refund and that she be reinstated as a rising third-year medical student not on academic

probation. As part of her petition, Ms. Zainulabeddin listed examples of prior cases where the

OCR had found in the student's favor when proper accommodations had not been provided.

After a committee met to consider her petition on June 25, 2014, her petition was denied on

August 22, 2014.

One week later, on August 29, 2014, Ms. Zainulabeddin filed another OCR complaint,

which was assigned case number 04-14-2487. She listed the same disability discrimination

allegations set forth in her March 20, 2014 OCR complaint and added allegations of racial

discrimination throughout medical school. She also alleged that Morsani' s August 22, 2014

denial of her petition for readmission constituted disability discrimination because the medical

school had held her past academic difficulties, which she attributed to her disability, against her.

On September 25, 2014, the OCR agreed to investigate the issue of whether the August 22, 2014

denial was discriminatory. At the same time, however, the OCR dismissed the remaining

allegations as either (I) duplicative of those set forth in her March 20, 2014 complaint or

(2) untimely, explaining that Ms. Zainulabeddin's stated reasons for not filing her complaint

earlier were insufficient to toll the filing deadline. On February 9, 2015, the OCR issued a

decision indicating that there was insufficient evidence to find that Morsani discriminated against

Ms. Zainulabeddin in denying her petition for readmission. The OCR observed that Ms.

Zainulabeddin's academic performance in the 2012-2013 year alone-when she was receiving

accommodations-subjected her to dismissal according Morsani's established policies and

procedures. On April 14, 2015, Ms. Zainulabeddin appealed the OCR's finding of insufficient

evidence of discrimination. Her appeal was denied by the OCR regional director on December

16, 2015, constituting the final agency action.

While awaiting the decision on her appeal of the OCR's February 9, 2015 decision, Ms.

Zainulabeddin submitted, on May 12, 2015, a demand letter to Morsani for a tuition refund and

reinstatement to the medical school. She did not receive a response.

On January 22, 2016, Ms. Zainulabeddin filed suit against USF in Florida state court,

alleging generally that Morsani had discriminated against her because of her disability in

violation of Section 504 of the Rehabilitation Act of 1973 ("Section 504"), codified as amended

at 29 U.S.C. § 794. In addition to disability discrimination, she asserted counts for breach of

fiduciary duty, negligent misrepresentation, breach of contract, and unjust enrichment.

Specifically, she argued that because her academic difficulties stemmed from ADHD, placing

her on academic probation, with its attendant stricter requirements, was improper. Had Morsani

treated her fairly, she averred, she would have been able to receive proper treatment and

academic accommodations beginning in her first year of medical school, would not have needed

to repeat her first and second years of medical school, and never would have been placed on

academic probation.

On March 17, 2016, USF removed the action to the United States District Court for the

Middle District of Florida ("Florida federal district court"), invoking both federal question and

diversity jurisdiction. USF noted that, at the time Ms. Zainulabeddin filed her complaint in state

court, she resided in Illinois, and that USF was an instrumentality of the state of Florida. After

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discovery, the Florida federal district court granted summary judgment in favor of USF on April

19, 2017. See generally Zainulabeddin v. Univ. ofS. Fla. Bd. ofTrs., No. 8:!6-cv-637, 2017

WL 5202998 (M.D. Fla. Apr. 19, 2017). Shortly thereafter, Ms. Zainulabeddin filed a motion

for reconsideration of the summary judgment ruling, in which she discussed the OCR's denial of

her complaints, and a motion for recusal of the trial judge; both motions were denied. See

generally Zainulabeddin v. Univ. ofS. Fla. Bd. ofTrs., No. 8:!6-cv-637, 2017 WL 5202999

(M.D. Fla. May 3, 2017). As the prevailing party in the suit, USF was awarded the majority of

its costs. See generally Zainulabeddin v. Univ. of S. Fla. Bd. ofTrs., No. 8:!6-cv-637, 2017 WL

2215675 (M.D. Fla. May 19, 2017).

Ms. Zainulabeddin sought appellate review of the Florida federal district court's

decisions:

• On April 26, 2017, Ms. Zainulabeddin appealed the Florida

federal district court's adverse summary judgment ruling to the

United States Court of Appeals for the Eleventh Circuit

("Eleventh Circuit"), where it was assigned docket number

17-11888.

• After filing her motion for reconsideration at the Florida

federal district court, Ms. Zainulabeddin sought to stay the

motion pending the outcome of her April 26, 2017 appeal. Her

motion to stay was denied as moot on May 4, 2017-the day

after her motion for reconsideration was denied. Ms.

Zainulabeddin appealed the denial of her motion to stay to the

Eleventh Circuit on May 10, 2017, where it was assigned

docket number 17-12134.4

• On May 22, 2017, Ms. Zainulabeddin appealed the Florida

federal district court's summary judgment and reconsideration

rulings to the Federal Circuit, where it was assigned docket

number 2017-2083. She subsequently petitioned the Federal

Circuit to review the OCR' s final decision, assign that portion

of her appeal a separate docket number, and transfer it to the

Eleventh Circuit.

4

The May I 0, 2017 notice of appeal named the United States Court of Appeals for the

Federal Circuit ("Federal Circuit"), but it was transmitted instead to the Eleventh Circuit. The

Eleventh Circuit denied Ms. Zainulabeddin's request to transfer the appeal to the Federal Circuit,

emphasizing that the Federal Circuit would lack jurisdiction to consider her appeal.

Zainulabeddin v. Univ. of S. Fla. Bd. of Trs., No. 17-11888 (11th Cir. July 24, 2017) (order

denying transfer).

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• Also on May 22, 2017, Ms. Zainulabeddin appealed the Florida

federal district court's costs award to the Eleventh Circuit,

where it was assigned docket number 17-12376.

On June 20, 2017, Ms. Zainulabeddin's Federal Circuit appeal was denied for lack of

subject matter jurisdiction. Zainulabeddin v. Univ. of S. Fla. Bd. ofTrs., No. 2017-2083 (Fed.

Cir. June 20, 2017). The Federal Circuit declined to transfer any portion of Ms. Zainulabeddin's

appeal to the Eleventh Circuit since she already had appeals pending in that court. Id. Ms.

Zainulabeddin unsuccessfully sought reconsideration of the Federal Circuit's denial, which was

construed as a motion for panel rehearing. 5 Zainulabeddin v. Univ. ofS. Fla. Bd. ofTrs., No.

2017-2083 (Fed. Cir. July 27, 2017). Her petition to the United States Supreme Court for a writ

of certiorari was similarly unsuccessful. Zainulabeddin v. Univ. ofS. Fla. Bd. ofTrs., 138 S. Ct.

569 (2017) (mem.).

On July 10, 2017, the Eleventh Circuit consolidated Ms. Zainulabeddin's three appeals

and set a new briefing schedule. Ms. Zainulabeddin filed her opening brief on August 28, 2017,

and an amended opening brief on October 31, 201 7. USF filed its response brief on November

30, 2017. Ms. Zainulabeddin filed her reply brief on March l, 2018. Various motions, and the

merits of the appeal itself, remain pending at the Eleventh Circuit.

In the meantime, Ms. Zainulabeddin filed suit in this court on December 13, 2017. In the

"Statement of Facts" section of her complaint, Ms. Zainulabeddin focuses on the events

surrounding her August 29, 2014 OCR complaint. She generally alleges that the OCR failed to

conduct a proper investigation, including a failure to investigate the entirety of her allegations,

which led to the erroneous conclusion of insufficient evidence of discrimination. She asserts

counts for a regulatory taking, the commission of various torts, and violation of the

Administrative Procedure Act. Concurrent with the complaint, Ms. Zainulabeddin filed an

application to proceed in forma pauperis and a Notice of Directly Related Case pursuant to Rule

40.2 of the Rules of the United States Court of Federal Claims ("RCFC"). In the Notice of

Directly Related Case, Ms. Zainulabeddin states that the instant case "is factually related" to her

Florida federal district court case, her Federal Circuit appeal, and her Eleventh Circuit appeals.

Specifically, she avers that the instant case "involves the related facts and contract" that were the

subject of her OCR complaint. Defendant subsequently moved to dismiss the complaint as

asserting claims outside of this court's jurisdiction. Prior to responding to defendant's motion to

5

Ms. Zainulabeddin repeatedly asserts that the Federal Circuit's July 27, 2017 rehearing

denial was a "ruling on the merits of the case, but denying jurisdiction." ~. Pl.'s Resp. to

Def.'s Mot. to Dismiss ("Pl.'s Resp.") 26. Her assertion reflects a misunderstanding of the

Federal Circuit's decision. Although the Federal Circuit recognized that her construed motion

for panel rehearing would be considered as having been timely filed, that portion of the ruling

was merely procedural and did not concern the merits of Ms. Zainulabeddin's appeal. In other

words, the Federal Circuit did not rule on the merits of her appeal. Indeed, the Federal Circuit

specified that, because it had no jurisdiction to consider her appeal, all pending motions with

respect to the merits of her appeal were denied as moot. See infra Section Il.B (discussing

jurisdiction).

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dismiss, Ms. Zainulabeddin filed a response to the Notice of Assignment to the undersigned, and

subsequently filed a motion for extension of time to respond to defendant's motion, in which she

(1) reiterated that the instant case "involve[s] common issues of fact and law" as her Eleventh

Circuit appeals, (2) repeated the allegations set forth in her complaint, and (3) alleged that her

transfer medical school, Atlantic, engaged in certain improper behavior. Defendant's motion to

dismiss is now fully briefed, and the court deems oral argument unnecessary. 6

II. LEGAL STANDARDS

A. Pro Se Plaintiffs

Pro se pleadings are "held to less stringent standards than formal pleadings drafted by

lawyers" and are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (internal quotation marks omitted). However, the "leniency afforded to a pro se litigant

with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."

Minehan v. United States, 75 Fed. Cl. 249, 253 (2007); accord Henke v. United States, 60 F.3d

795, 799 (Fed. Cir. 1995) ("The fact that [the plaintiff! acted prose in the drafting of his

complaint may explain its ambiguities, but it does not excuse its failures, if such there be."). In

other words, a pro se plaintiff is not excused from its burden of proving, by a preponderance of

evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Com.,

298 U.S. 178, 179 (1936); Banks v. United States, 741F.3d1268, 1277 (Fed. Cir. 2014) (citing

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).

6

The court denied Ms. Zainulabeddin's motion for leave to file a sur-reply with respect

to defendant's motion to dismiss. Ms. Zainulabeddin has appealed that denial to the Federal

Circuit, where it was assigned docket number 2018-2033. It is well settled that an appeal

typically divests the trial court of jurisdiction and confers it on the appellate court. Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). However, with limited

exceptions not relevant here, the Federal Circuit only has jurisdiction "of an appeal from a final

decision" of this court. 28 U.S.C. § 1295(a)(3) (emphasis added). Final decisions are generally

"judgments that terminate an action." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106

(2009) (internal quotation marks omitted). Final decisions also include certain collateral rulings,

id., but no such collateral rulings are presently at issue. The order from which Ms.

Zainulabeddin appeals did not terminate the action and is not among the class of collateral

rulings that can be appealed. An appeal from an unappealable order does not divest the trial

court of jurisdiction; such an appeal is a nullity and has no effect-it is "as if no notice of appeal

were filed at all." Griggs, 459 U.S. at 58, 61.

In short, the Federal Circuit lacks jurisdiction to consider Ms. Zainulabeddin's appeal

from the court's order denying leave to file a sur-reply because that appeal is premature.

Therefore, this court retains its power over the instant case notwithstanding the appeal.

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B. Subject Matter Jurisdiction

Whether the court possesses jurisdiction to decide the merits of a case is a "threshold

matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Subject matter

jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case."

United States v. Cotton, 535 U.S. 625, 630 (2002), quoted in Arbaugh v. Y & H Com., 546 U.S.

500, 514 (2006). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction

is power to declare the law, and when it ceases to exist, the only function remaining to the court

is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall)

506, 514 ( 1868). Therefore, subject matter jurisdiction is "an inflexible matter that must be

considered before proceeding to evaluate the merits of a case." Matthews v. United States, 72

Fed. Cl. 274, 278 (2006); accord K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000,

1004-05 (Fed. Cir. 2015). Either party, or the court sua sponte, may challenge the court's subject

matter jurisdiction at any time. Arbaugh, 546 U.S. at 506.

The ability of the United States Court of Federal Claims ("Court of Federal Claims") to

entertain suits against the United States is limited. "The United States, as sovereign, is immune

from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941).

The waiver of immunity "may not be inferred, but must be unequivocally expressed." United

States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003).

The Tucker Act, the principal statute governing the jurisdiction ofthis court, waives

sovereign immunity for claims against the United States, not sounding in tort, that are founded

upon the United States Constitution, a federal statute or regulation, or an express or implied

contract with the United States. 28 U.S.C. § 149l(a)(l) (2012); White Mountain, 537 U.S. at

4 72. However, the Tucker Act is merely a jurisdictional statute and "does not create any

substantive right enforceable against the United States for money damages." United States v.

Testan, 424 U.S. 392, 298 (1976). Instead, the substantive right must appear in another source of

law, such as a "money-mandating constitutional provision, statute or regulation that has been

violated, or an express or implied contract with the United States." Loveladies Harbor, Inc. v.

United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).

C. RCFC 12(b)(l)

In determining whether subject matter jurisdiction exists, 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." Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.

2011 ). With respect to a motion to dismiss for lack of subject matter jurisdiction pursuant to

RCFC l 2(b )( 1), the plaintiff bears the burden of proving, by a preponderance of evidence, that

the court possesses subject matter jurisdiction. Id. The court is not limited to the pleadings in

considering subject matter jurisdiction. Banks, 741 F.3d at 1277; Pucciariello v. United States,

116 Fed. Cl. 390, 400 (2014). If the court finds that it lacks subject matter jurisdiction over a

claim, RCFC 12(h)(3) requires the court to dismiss that claim.

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D. RCFC 12(b)(6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

l 2(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss ... for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy."). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must

include in her complaint "enough facts to state a claim to relief that is plausible on its face"

sufficient for the defendant to have "fair notice" of the claim and the "grounds upon which it

rests." Bell At!. Coro. v. Twombly. 550 U.S. 544, 555, 570 (2007) (internal quotation marks

omitted). In other words, a plaintiff must "plead[] factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In ruling on such a motion,

the court must "accept as true all of the factual allegations contained in the complaint" and any

attachments thereto. Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56); accord

RCFC lO(c) ("A copy ofa written instrument that is an exhibit to a pleading is part of the

pleading for all purposes."); Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320,

1325 (Fed. Cir. 2016) (applying RCFC lO(c) and emphasizing that "a court 'must consider the

complaint in its entirety, ... in particular, documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice"' (quoting Tellabs, Inc. v.

Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007))).

III. ANALYSIS

Under a liberal construction of Ms. Zainulabeddin' s pro se complaint, Ms. Zainulabeddin

alleges tortious and criminal conduct; civil rights, due process, and equal protection violations; a

regulatory takings claim; violation of the Administrative Procedure Act; violation of Section

504; and a breach-of-contract claim. She also petitions for a writ of mandamus and collaterally

attacks the judgment of the Florida federal district court. Because Ms. Zainulabeddin's claims

are outside the scope of this court's jurisdiction, the complaint must be dismissed.

A. The United States Is the Only Proper Defendant in the Court of Federal Claims

The crux of Ms. Zainulabeddin's complaint is that Morsani discriminated against her.

Ms. Zainulabeddin also refers, in subsequent filings, to improper actions taken by Atlantic.

However, in the Court of Federal Claims, "the only proper defendant ... is the United States, not

its officers, nor any other individual." Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003);

accord RCFC lO(a). Because "the United States itself' is the only proper defendant in the Court

of Federal Claims, this court lacks jurisdiction "over any claims alleged against states, localities,

state and local government entities, or state and local government officials and employees."

Anderson v. United States, 117 Fed. Cl. 330, 331 (2014). Similarly, the Court of Federal Claims

lacks jurisdiction "over suits against private parties." Edelmann v. United States, 76 Fed. Cl.

376, 380 (2007). In other words, "if the relief sought [in the Court of Federal Claims] is against

other than the United States, the suit as to them must be ignored as beyond the jurisdiction of the

court." Sherwood, 312 U.S. at 584. In the instant case, the parties agree that USF, of which

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Morsani is a part, is an instrumentality of the state of Florida. Further, Atlantic is, as alleged by

Ms. Zainulabeddin, a private entity. Accordingly, to the extent that Ms. Zainulabeddin

complains of improper conduct by her medical schools and their employees, this court lacks

jurisdiction over those claims, and they must be dismissed.

B. The Court of Federal Claims Lacks Jurisdiction Over Ms. Zainulabeddin's Torts and

Civil Rights Claims

To the extent that Ms. Zainulabeddin seeks relief in this court based on alleged tortious

conduct and civil rights violations, the Court of Federal Claims lacks jurisdiction to entertain

those claims.

First, the Court of Federal Claims is not a federal district court. Ledford v. United States,

297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Lightfoot v. Cendant Mortg. Corp., 137 S. Ct

553, 563 (2017) (distinguishing between the "Court of Federal Claims" and "federal district

courts").

Second, only federal district courts possess jurisdiction to entertain claims alleging civil

rights violations. See, e.g., Jones v. United States, 104 Fed. CL 92, 98 (2012) (explaining that

the Court of Federal Claims has no jurisdiction over claims based on, among other causes of

action, alleged "violations of ... civil rights"); Marlin v. United States, 63 Fed. CL 475, 476

(2005) (explaining that Bivens claims and claims alleging violations of 42 U.S.C. §§ 1981, 1983,

and 1985 must be heard in federal district courts).

Third, this court lacks jurisdiction to entertain claims sounding in tort. 28 U.S.C.

§ 149l(a)(l); Rick's Mushroom Serv .. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.

2008). Indeed, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(l), 2671-2680,

jurisdiction over tort claims against the United States lies exclusively in federal district courts.

U.S. Marine. Inc. v. United States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013). Claims of fraud,

conspiracy, harassment, breach of fiduciary duty, and negligence sound in tort. See, e.g.,

Lawrence Battelle, Inc. v. United States, 117 Fed. CL 579, 585 (2014) (fraud and negligence);

Sellers v. United States, 110 Fed. CL 62, 68 (2013) (negligence); Cox v. United States, 105 Fed.

CL 213, 218 (2012) (harassment, fraud, and breach of fiduciary duty); Phang v. United States, 87

Fed. CL 321, 325 (2009) (fraud); Gant v. United States, 63 Fed. CL 311, 316 (2004) (conspiracy,

fraud, and negligence).

In short, the court must dismiss any tort or civil rights claims that Ms. Zainulabeddin

seeks to advance as beyond its jurisdiction.

C. The Court of Federal Claims Lacks Jurisdiction Over Criminal Matters

Next, Ms. Zainulabeddin vaguely alleges that criminal activity may have been

perpetrated by USF representatives during the OCR investigation. However, it is well

established that the Court of Federal Claims "has no jurisdiction to adjudicate any claims

whatsoever under the federal criminal code." Joshua v. United States, 17 F.3d 378, 379 (Fed.

-10-

Cir. 1994) (internal quotation marks omitted) (summarily affirming a Court of Federal Claims

dismissal order); see also Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (collecting

cases). Therefore, to the extent that Ms. Zainulabeddin seeks redress for criminal violations,

such claims must be dismissed as beyond the jurisdiction of this court.

D. The Court of Federal Claims Lacks Jurisdiction Over Ms. Zainulabeddin's

Constitutional Claims

1. Due Process and Equal Protection

Ms. Zainulabeddin's complaint also contains allegations of equal protection and due

process violations. However, the Due Process Clauses of the Fifth and Fourteenth Amendments

and the Equal Protection Clause of the Fourteenth Amendment do not mandate the payment of

money damages. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). As stated

above, the Court of Federal Claims lacks jurisdiction over claims that are "not tied to money-

mandating sources oflaw." Ivaldy v. United States, 655 F. App'x 813, 815 (Fed. Cir. 2016)

(unpublished decision).

2. Regulatory Taking

Ms. Zainulabeddin further alleges, in Count II of her complaint, that the OCR' s dismissal

of some of her allegations as untimely effected a regulatory taking. The Fifth Amendment to the

United States Constitution prohibits the federal government from taking private property for

public use without paying just compensation. "It is undisputed that the Takings Clause of the

Fifth Amendment is a money-mandating source [oflaw] for purposes of Tucker Act jurisdiction"

in the Court of Federal Claims. Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed.

Cir. 2008). However, a plaintiff must still allege a nonfrivolous takings claim-whether physical

or regulatory-to invoke this court's Tucker Act jurisdiction. Cf. Oneida Indian Nation ofN .Y.

v. Oneida Cty., 414 U.S. 661, 666-67 (1974).

To prevail on a takings claim, a plaintiff must identify a valid property interest under the

Fifth Amendment, Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992), and show a

government action that amounted to a compensable taking of that property interest, Penn Cent.

Transp. Co. v. City ofNew York, 438 U.S. 104, 123-124 (1978). See also Casitas Mun. Water

Dist. v. United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013) (describing the "two-part test" that

courts use in takings cases). The federal government "can be held liable for a Fifth Amendment

taking only if there is physical invasion of or physical damage to a claimant's property by the

United States or its authorized agents, or if its own regulatory activity is so extensive or intrusive

as to amount to a taking." May v. United States, 80 Fed. Cl. 442, 445 (2008) (internal quotation

marks and alterations omitted).

Assuming, without deciding, that Ms. Zainulabeddin's interest in her discrimination

claims constitutes a cognizable property interest, she has failed to allege any "extensive or

intrusive" regulatory activity on the part of the OCR sufficient to invoke this court's jurisdiction.

Rather, her contention that the OCR declined to pursue an investigation into certain allegations,

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and failed to adequately pursue others, amounts to an assertion that the OCR' s actions were not

sufficiently diligent. In other words, to the extent that conducting an investigation can be

considered a regulatory activity, Ms. Zainulabeddin's regulatory takings claim boils down to an

argument that the OCR should have been more extensive and intrusive. Such a regulatory

takings allegation is so "devoid of merit as not to involve a federal controversy," Oneida, 414

U.S. at 666, and thus fails to invoke the jurisdiction of this court.

Even if the court possessed jurisdiction to consider Ms. Zainulabeddin' s regulatory

takings claim, she has failed to establish a plausible claim for relief. In asserting a takings claim,

a plaintiff must concede the legitimacy of the govermnent action that effected the taking. See

Reg'! Rail Reorg. Act Cases, 419 U.S. 102, 126-27 & n.16 (1974) ("[T]he Govermnent action

must be authorized. 'The taking of private property by an officer of the United States for public

use, without being authorized, expressly or by necessary implication, to do some act of Congress,

is not the act of the govermnent,' and hence recovery is not available in the [Court of Federal

Claims]." (quoting Hooe v. United States, 218 U.S. 322, 336 (1910))); Rith Energy, Inc. v.

United States, 270 F.3d 1347, 1352 (Fed. Cir. 2001) ("[I]n a takings case we assume that the

underlying govermnental action was lawful, and we decide only whether the govermnental

action in question constituted a taking for which compensation must be paid."). Ms.

Zainulabeddin does not make such a concession, but rather alleges that the OCR acted

improperly. Therefore, the court could not grant her relief. See, e.g., Davis v. United States, 123

Fed. Cl. 235, 243 (2015) (differentiating between "an uncompensated taking and an unlawful

govermnent action," explaining that each gives rise to a separate cause of action, and finding that

the plaintiff failed to state a plausible takings claim because he had alleged improper govermnent

conduct (internal quotation marks omitted)), affd per curiam, 642 F. App'x 982 (Fed. Cir. 2016)

(unpublished decision).

3. Summary

The Court of Federal Claims lacks jurisdiction to entertain Ms. Zainulabeddin's

constitutional claims. In addition, to the extent that jurisdiction in this court is proper with

respect to her regulatory takings claim, Ms. Zainulabeddin has failed to state a claim upon which

this court can grant relief. Accordingly, her constitutional claims must be dismissed.

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E. The Court of Federal Claims Lacks Jurisdiction Over Ms. Zainulabeddin's Other

Statutory Claims

1. Administrative Procedure Act

Next, in Count IV of her complaint, Ms. Zainulabeddin alleges that the manner in which

the OCR conducted its investigation violated the Administrative Procedure Act. 7 Although her

reference to the Administrative Procedure Act is not specific, Ms. Zainulabeddin alleges that the

OCR investigator ignored "substantial evidence provided to her to reasonably conclude that

USF" had acted improperly. Comp!. '1162; accord Pl. 's Resp. 2. Thus, Ms. Zainulabeddin

appears to be asking this court to "hold unlawful and set aside agency [i.e., OCR] action,

findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2012).

However, the Administrative Procedure Act is not a money-mandating source of law.

Faison v. United States, 102 Fed. Cl. 637, 641 (2012). Indeed, the statutory provision discussing

the right to judicial review for violations of the Administrative Procedure Act contemplates an

action in federal district court for "relief other than money damages." 5 U.S.C. § 702 (emphasis

added); accord Faison, 102 Fed. CL at 641. The Administrative Procedure Act "only provides

the framework for determining when a court may review an agency's determination," and thus is

"insufficient to invoke the jurisdiction of the Court of Federal Claims" with respect to a claim for

money damages. Ross v. United States, 122 Fed. CL 343, 348 (2015) (internal quotation marks

omitted).

2. Section 504

In addition to asserting violations of the Administrative Procedure Act, Ms.

Zainulabeddin contends that (1) she was subjected to discrimination during medical school in

contravention of Section 504 and (2) the OCR ran afoul of Section 504 by the manner in which it

conducted its investigation.

Section 504 provides that "[nJo otherwise qualified individual with a disability ... shall,

solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted by any Executive Agency." 29

U.S.C. § 794(a). There is no dispute that the United States Department of Education, of which

the OCR is a part, is a federal agency. See, e.g., 5 U.S.C. § 105. There is also no dispute that

USF is subject to Section 504 for two reasons. First, USF is a "college, university, or other

postsecondary institution, or a public system of higher education," 29 U.S.C. § 794(b)(2)(A),

qualifying it as a "program or activity" for Section 504 purposes. Second, USF students,

7

Ms. Zainulabeddin also alleges that Morsani violated the Administrative Procedure Act

by failing to have properly trained its employees to accommodate students with disabilities.

However, since such a claim is lodged against a state actor, rather than the federal government, it

is beyond the jurisdiction of this court. See supra Section III.A.

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including those at Morsani, are eligible to receive federal financial aid. In fact, Ms.

Zainulabeddin specifies that she has been required to rely on student loans to fund her education.

Although Ms. Zainulabeddin alleges violation of a federal statute, Section 504 does not

mandate the payment of money damages. Golding v. United States, 48 Fed. Cl. 697, 723 (2001).

Accordingly, claims alleging Section 504 violations are beyond the jurisdiction of the Court of

Federal Claims. Such claims must be brought in federal district court. Id.

3. Summary

In sum, Ms. Zainulabeddin's statutory claims do not rely upon money-mandating sources

of law. In any event, jurisdiction over her statutory claims has been specifically committed to

the federal district courts. Accordingly, the Court of Federal Claims lacks jurisdiction over her

statutory claims, and they must be dismissed.

F. The Court of Federal Claims Cannot Issue the Requested Writ of Mandamus

Ms. Zainulabeddin next appears to request a writ of mandamus from this court directing

the OCR to reopen its investigation and make certain findings. However, jurisdiction "of any

action in the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff' is committed to the federal district courts.

28 U.S.C. § 1361; accord Ross, 122 Fed. Cl. at 348. In other words, the Court of Federal Claims

has no authority to issue the writ of mandamus that Ms. Zainulabeddin appears to seek.

Therefore, any such claim must be dismissed as beyond the jurisdiction of this court.

G. The Court of Federal Claims Lacks Jurisdiction Over Ms. Zainuiabeddin's Breach-of-

Contract Claim

Ms. Zainulabeddin also appears to allege that she had an "expressed and implied contract

[with the OCR] to investigate her allegations," Resp. Notice Directly Related Case 2, that arose

when the OCR stated "that her complaint was accepted for investigation," id. at 5. She also

alleges that she has "a contractual relationship with the defendant, based on the promissory notes

signed and approved by the [United States Department of Education], to fund her medical

education." Mot. Ext. Time File Resp. 5; accord Pl.'s Resp. 1, 27.

In contract disputes, the "money-mandating requirement for Tucker Act jurisdiction

normally is satisfied by the presumption that money damages are available for breach of

contract." 8 Holmes, 657 F.3d at 1314. Therefore, a "non-frivolous allegation ofa contract with

the government" is generally sufficient to invoke the court's Tucker Act jurisdiction. Engage

Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (emphasis added). The court's

8

The mere existence of a contract, however, does not automatically give rise to the

court's Tucker Act jurisdiction because not all contracts contemplate money damages. See

Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011) (describing contracts that do not

fall within the reach of the Tucker Act).

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jurisdiction over federal government contracts extends to claims involving implied-in-fact

contracts. Hercules, Inc. v. United States, 516 U.S. 417, 423 (1996). An implied-in-fact contract

results from a "meeting of minds, which, although not embodied in an express contract, is

inferred, as a fact, from conduct of the parties showing, in the light of the surrounding

circumstances, their tacit understanding." Id. at 424 (internal quotation marks omitted). The

requirements for an implied-in-fact contract with the government "are the same as for an express

contract":

( 1) mutuality of intent,

(2) consideration,

(3) an unambiguous offer and acceptance, and

(4) "actual authority" on the part of the government's

representative to bind the government in contract.

Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). The only difference between

express contracts and implied-in-fact contracts is the nature of the evidence required. Id.

Even when a plaintiff properly alleges a contract with the federal government, the Court

of Federal Claims cannot exercise its jurisdiction unless the plaintiff also satisfies the pleading

requirements set forth in RCFC 9(k). See, e.g., Baha v. United States, 123 Fed. Cl. 1, 5 n.4

(2015) ("Satisfaction ofRCFC 9(k) is a jurisdictional requirement."); see also Huntington

Promotional & Supply, LLC v. United States, 114 Fed. Cl. 760, 766 (2014) ("If a plaintiff fails

to comply with RCFC 9(k) and to allege sufficient facts to show that it had a contract with the

United States, the court cannot exercise jurisdiction over the claim."); Kissi v. United States, 102

Fed. Cl. 31, 35 (2011) (finding no jurisdiction based on the plaintiffs failure to show an existing

contract and failure to "adequately plead a contract claim under RCFC 9(k)"). RCFC 9(k)

requires a party, "[i]n pleading a claim founded on a contract," to "identify the substantive

provisions of the contract ... on which the party relies." A plaintiff who attaches a copy of the

contract to the complaint and "identif[ies] the provisions and terms of the contract that have been

breached" satisfies her burden under RCFC 9(k) because doing so allows the court to "render a

decision ... know[ing] the relevant terms of the contract." Garreaux v. United States, 77 Fed.

Cl. 726, 730 (2007).

Ms. Zainulabeddin attempts to allege the necessary elements-mutuality of intent,

consideration, offer and acceptance, and actual authority-of a contract with the federal

government:

• mutuality of intent: Ms. Zainulabeddin filed her second OCR

complaint, and the OCR scheduled an initial phone call as part of

its intake process;

• consideration: the OCR offered "early case resolution";

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• offer and acceptance: OCR' s September 25, 2014 letter agreeing

to investigate; and

• actual authority: "governmental officer actions that further imply

his authority to bind to the Federal Government."

Pl.'s Resp. 32. Therefore, for the sake of argument, the court assumes (without deciding) that

Ms. Zainulabeddin has alleged the elements of a contract with the federal government.

However, that is not the end of the inquiry. Ms. Zainulabeddin has failed to satisfy the RCFC

9(k) pleading requirements because she has not identified any substantive provisions of the

alleged contract that have been breached. Compliance with RCFC 9(k) is necessary for the court

to adjudicate a contract claim because the court cannot do so without knowing the relevant terms

of the contract. The materials that Ms. Zainulabeddin attached to her filings generally describe

the OCR's findings~i.e., agency action, not contract terms. Further, Ms. Zainulabeddin has

failed to demonstrate how her student loans mandated the OCR to conduct an investigation.

Accordingly, to the extent that Ms. Zainulabeddin has sufficiently alleged the existence

of a contract with the federal government, her failure to comply with RCFC 9(k) defeats that

portion of her complaint.

Even if Ms. Zainulabeddin's breach-of-contract claim was within the jurisdiction of this

court, she has failed to state a claim upon which this court can grant relief. It is simply not

plausible that the OCR investigator had the authority to bind the federal government to an

obligation that would mandate the payment of money damages for its breach. In other words,

because an OCR investigation is not a contract, Ms. Zainulabeddin cannot rely upon the

investigation to support a breach-of-contract claim. Further, although Ms. Zainulabeddin's

student loans are indeed contracts, there are no allegations that any terms of the promissory notes

she signed have been breached. To prove a breach of contract, a plaintiff must establish"(!) a

valid contract between the parties; (2) an obligation or duty arising from that contract; (3) a

breach of that duty; and (4) damages caused by the breach." Century Exp!. New Orleans, LLC v.

Uruted States, 110 Fed. Cl. 148, 163 (2013). Because Ms. Zainulabeddin fails to allege any facts

with respect to the breach of any duties owed to her in conjunction with her student loans, she

cannot prevail on a breach-of-contact claim. Even if there had been a breach of her student loan

contracts, such a breach would be relevant with respect to the loans themselves, and would not

concern the actions of the OCR. 9

9

Prior to filing suit in this court, Ms. Zainulabeddin requested a refund of her Morsani

tuition, with interest, for the two years of medical school that she failed, but she did not seek debt

discharge relief in her complaint. Nevertheless, in response to defendant's motion to dismiss,

she (for reasons not entirely clear) describes her efforts to have her student loan debt discharged.

See Pl.'s Resp. 23, 39, 46. Ms. Zainulabeddin cannot amend her complaint in a response

memorandum. RO Squared LLC v. United States, 119 Fed. Cl. 751, 759 (2015). Moreover,

amendment to add such a claim would be futile. This court lacks jurisdiction over student loan

debt cancellation claims. Gonzales & Gonzales Bond & Ins. Agency, Inc. v. Dep't of Homeland

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In sum, Ms. Zainulabeddin has failed to carry her burden of demonstrating that this court

has jurisdiction over her breach-of-contract claim. Further, even if the court had jurisdiction to

consider her breach-of-contract claim, she has failed to state a claim upon which this court can

grant relief. Accordingly, her breach-of-contract claim must be dismissed.

H. The Court of Federal Claims Cannot Entertain Collateral Attacks Against the

Decisions of Other Courts

In addition to alleging myriad claims against the United States, Ms. Zainulabeddin

appears to collaterally attack the decisions of the Florida federal district court. However, the

Tucker Act does not provide the Court of Federal Claims with jurisdiction to entertain collateral

attacks on decisions of federal district courts. See 28 U.S.C. § 149l(a); Shinnecock Indian

Nation v. United States, 782 F.3d 1345, 1352 (Fed. Cir. 2015) ("Binding precedent establishes

that the Court of Federal Claims has no jurisdiction to review the merits of a decision rendered

by a federal district court."); Vereda, Ltda. v. United States, 271F.3d1367, 1375 (Fed. Cir.

2001) ("[T]he Court of Federal Claims cannot entertain a taking claim that requires the court to

scrutinize the actions of another tribunal." (internal quotation marks omitted)).

Ms. Zainulabeddin's recourse concerning prior adverse decisions is "the statutorily

defined appellate process." Shinnecock Indian Nation, 782 F.3d at 1353 (citing 28 U.S.C.

§ 1291). In other words, judicial decisions can only be reviewed by the appropriate appellate

court. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). With respect to Ms.

Zainulabeddin, the appropriate appellate court to review the decisions of the Florida federal

district court is the Eleventh Circuit, where plaintiff currently has three consolidated appeals

pending. See infra Section III.J.

I. The Court of Federal Claims Lacks Authority to Grant Injunctive Relief

Finally, in addition to monetary relief, Ms. Zainulabeddin seeks certain injunctive

relief-reinstatement to Morsani, refund of two years of tuition paid, correction of her academic

records, and correction of her consumer credit reports. However, it is well settled the Court of

Federal Claims lacks the authority to grant such equitable relief. See Bowen v. Massachusetts,

487 U.S. 879, 905 (1988) (holding that the Court of Federal Claims lacks the "general equitable

powers of a district court to grant prospective relief'). Rather, this court can only award

equitable relief that is "incidental to and collateral to a claim for money damages." Bobula v.

U.S. Dep't of Justice, 970 F.2d 854, 858-59 (Fed. Cir. 1992); see also Simanonok v. Simanonok,

918 F.2d 947, 952 (Fed. Cir. 1990) (stating that claims for injunctive relief are "not cognizable in

a ... Tucker Act case, absent a concurrent colorable claim for monetary recovery"). Here, as

explained above, Ms. Zainulabeddin does not have a colorable claim for money damages. Thus,

the equitable relief that she seeks does not arise as "incidental and collateral to" a monetary

judgment. Accordingly, the court has no authority to award equitable relief in this case.

Sec., 490 F.3d 940, 945 (Fed. Cir. 2007) (explaining that a "debt cancellation claim is not one for

monetary relief' and thus outside the jurisdiction of the Court of Federal Claims).

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J. Ms. Zainulabeddin's Claims Were Pending in Another Court When the Instant

Complaint Was Filed

In any event, Ms. Zainulabeddin's suit is barred in this court by the application of28

U.S.C. § 1500. Under 28 U.S.C. § 1500, the Court of Federal Claims does not possess

jurisdiction to hear claims that are pending in another court. See also United States v. Tohono

O'Odham Nation, 563 U.S. 307, 311 (2011); Brandt v. United States, 710 F.3d 1369, 1374 (Fed.

Cir. 2013); Res. Invs., Inc. v. United States, 114 Fed. Cl. 639, 647 (2014). Whether this statutory

bar to jurisdiction applies is measured at the time the complaint is filed in the Court of Federal

Claims. Brandt, 710 F.3d at 1379-80; Res. Invs., 114 Fed. Cl. at 647; Vero Tech. Support, Inc. v.

United States, 94 Fed. Cl. 784, 790 (20 I 0).

To determine whether [28 U.S.C.] § 1500 applies, a court must

make two inquiries: (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 of Federal Claims

action. If the answer to either of these questions is negative, then

the Court of Federal Claims retains jurisdiction.

Brandt, 710 F.3d at 1374. Two actions are "for or in respect to the same claim ... if they are

based on substantially the same operative facts, regardless of the relief sought in each suit."

Tohono, 563 U.S. at 317.

Whether 28 U.S.C. § 1500 operates to bar this court from exercising jurisdiction in this

case was not raised by the parties, but the court has the responsibility to examine all pertinent

issues relevant to subject matter jurisdiction because "[ c]ourts have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz

Coro. v. Friend, 559 U.S. 77, 94 (2010); accord Gonzalez v. Thaler, 565 U.S. 134, 141 (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."). In other words, a court

may examine the issue of subject matter jurisdiction "on its own initiative" at any point in a case.

Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. Cl. 203, 209-10 (2016)

(collecting cases).

First, Ms. Zainulabeddin had "an earlier-filed 'suit or process' pending in another court,"

Brandt, 710 F.3d at 1374, when her complaint was filed in this court on December 13, 2017: her

consolidated appeals before the Eleventh Circuit. See Brandt, 710 F.3d at 1378 ("[A] claim is

pending when a notice of appeal is filed and docketed .... ");see also id. at 1379-80 ("[O]nce a

claim is dismissed or denied, it is no longer 'pending' for § 1500 purposes until a ... notice of

appeal is filed."). Even ifthe appeal had been subsequently terminated, it would be of no

moment 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," not at some later

point. Loveladies Harbor, 27 F.3d at 1548 (emphasis added).

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Second, Ms. Zainulabeddin's appeals that were pending at the Eleventh Circuit when she

filed the complaint in the instant case involve the same claims that she asserts in this court.

Indeed, Ms. Zainulabeddin herself stated that the instant case involves the same facts as those in

her Eleventh Circuit appeals, and included a copy of her "Notice of Directly Related Case" filed

at this court in one of her filings at the Eleventh Circuit. She also stated that the Eleventh Circuit

appeals involve a "similar common nucleus of operating facts" as the instant case. Comp!. xiii;

accord Resp. Notice Assignment 2 ("The cases pending at the [Eleventh Circuit] involve

common issues of fact and law ...."). Moreover, even when the relief sought is different, it is

sufficient for§ 1500 purposes ifthe two cases are "based on substantially the same operative

facts." Tohono, 563 U.S. at 317.

In short, Ms. Zainulabeddin had an earlier-filed suit pending in the Eleventh Circuit when

she filed her complaint in this court, and the same operative facts underlie both actions.

Therefore, even if it possessed subject matter jurisdiction over Ms. Zainulabeddin's claims, this

court would be divested of that jurisdiction pursuant to 28 U.S.C. § 1500.

IV. APPLICATION TO PROCEED IN FORMA PAUPERIS

To proceed with a civil action in this court, a plaintiff must either pay $400 in fees-a

$350 filing fee plus a $50 administrative fee----0r request authorization to proceed without

payment of fees by submitting a signed application to proceed in forma pauperis. 10 See 28

U.S.C. §§ 1915, 1926; RCFC 77( c); see also Waltner v. United States, 93 Fed. Cl. 139, 141 n.2

(2010) (concluding that 28 U.S.C. § 1915(a)(l) applies to both prisoners and nonprisoners alike).

Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that (I) lists all of their

assets, (2) declares that they are unable to pay the fees, and (3) states the nature of the action and

their belief that they are entitled to redress. 28 U.S.C. § 1915(a)(l). Evaluation of a plaintiffs

ability to pay is "left to the discretion of the presiding judge, based on the information submitted

by the plaintiff." Alston-Bullock v. United States, 122 Fed. Cl. 38, 45 (2015).

As noted above, Ms. Zainulabeddin filed, concurrent with her complaint, an application

to proceed in forma pauperis. Ms. Zainulabeddin has fulfilled all three requirements of

§ 1915(a)(l), and the court is satisfied that she is unable to pay the filing fee otherwise required

by RCFC 77.l(c). Therefore, the court grants Ms. Zainulabeddin's application and waives her

filing fee.

10

While the Court of Federal Claims is not generally considered to be a "court of the

United States" within the meaning of Title 28 of the United States Code, the court has

jurisdiction to adjudicate applications to proceed in forma pauperis. See 28 U.S.C. § 2503(d)

(deeming the Court of Federal Claims to be a "court of the United States" for purposes of28

U.S.C. § 1915).

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V. CONCLUSION

The court has considered all of the parties' arguments. To the extent not discussed

herein, they are unpersuasive, without merit, or unnecessary for resolving the issues currently

before the court.

Ms. Zainulabeddin experienced significant challenges while a Morsani student. She has

spent years seeking internal, administrative, and judicial redress, and continues to seekjudicial

relief in multiple fora. Ms. Zainulabeddin has asked both this court and the Eleventh Circuit to

consolidate her cases "to [a] single judge as deemed appropriate" to ·'conserve judicial resources

[and] promote efficient and expedit[ious] administration of justice." Notice Directly Related

Case 3. However, although Ms. Zainulabeddin qualifies to proceed in fonna pauperis, this court

lacks jurisdiction to entertain her complaint. To the extent that jurisdiction is proper in the Court

of Federal Claims, Ms. Zainulabeddin has failed to state a claim upon which this court can grant

relief. On the other hand, dismissal of the instant case will effectively grant Ms. Zainulabeddin's

request to consolidate her judicial efforts in one forum- the Eleventh Circuit.

Therefore, the court GRANTS Ms. Zainulabeddin' s application to proceed in fonna

pauperis and GRANTS defendant's motion to dismiss the complaint for lack of subject matter

jurisdiction. Ms. Zainulabeddin's complaint is DISMISSED WITHOUT PREJUDICE. No

costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

Judge

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