holding that the Court of Federal Claims does not possess jurisdiction to entertain slander and libel claims because they sound in tort
How later courts described this case
- holding that the Court of Federal Claims does not possess jurisdiction to entertain slander and libel claims because they sound in tort
- “A claim for professional negligence is a tort claim.”
- en banc in relevant part
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
(Pro Se)
)
TOIA D. OCANSEY, )
)
Plaintiff, )
) No. 21-1581C
v. ) (Filed: August 11, 2021)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
Toia D. Ocansey, Pro Se, Columbus, OH.
Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, DC.
OPINION AND ORDER
Kaplan, Chief Judge.
In 1981, Plaintiff Toia D. Ocansey was issued an honorable discharge from the United
States Air Force (“Air Force”). Compl. Ex. A, at 2–3, Docket No. 1-1. Some eighteen to nineteen
years later, after the Department of Veterans Affairs assigned her a thirty percent disability rating
for “an unspecified trauma and related disorder,” Ms. Ocansey asked the Air Force Board for
Correction of Military Records (“AFBCMR” or “the Board”) to change the narrative reason for
her discharge (originally identified as “Unsuitability—Personality Disorder”) to instead reflect
service-connected post-traumatic stress disorder (“PTSD”) based upon military sexual trauma.
Id. at 1.
In 2021, upon the recommendation of its Psychological Advisor, the AFBCMR
concluded that Ms. Ocansey did not have a personality disorder at the time of her discharge. Id.
at 4–5. It granted-in-part her request that her discharge record be corrected. Id. at 1, 5. It directed
that the narrative reason for Ms. Ocansey’s discharge be changed to “Secretarial Authority” with
the corresponding separation code of “JFF.” Id. at 5. The AFBCMR declined, however, to
include the PTSD diagnosis in the amended narrative reason for Ms. Ocansey’s discharge from
the Air Force, as she had requested. Id. It reasoned that doing so would “needlessly includ[e]
intrusive personal history” on her DD Form 14. Id.
Ms. Ocansey filed her complaint in this court on July 15, 2021. Compl., Docket No. 1.
She does not challenge the Board’s decision to correct her record. See generally id. Instead, she
alleges that she is entitled to compensatory and punitive damages for libel, slander, and medical
malpractice that she contends the Air Force committed when it listed a personality disorder as
the narrative reason for her discharge. Id. ¶¶ 5, 8–9. Ms. Ocansey seeks $150,000 in
compensatory damages and $150,000 in punitive damages, id. at 5, alleging that as a result of the
Air Force’s wrongful actions she suffered “financial and emotional injury, embarrassment,
dishonor and loss of dignity” and was denied employment opportunities, id. ¶¶ 12–13.
The Court must have jurisdiction before it can evaluate a case on its merits. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). Further, the Court may raise the issue of
jurisdiction on its own at any time during the pendency of a case. Folden v. United States, 379
F.3d 1344, 1354 (Fed. Cir. 2004); see also Rule 12(h)(3) of the Rules of the Court of Federal
Claims (stating that, “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action”). While it is well established that complaints filed
by pro se plaintiffs are held to “less stringent standards than formal pleadings drafted by
lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se plaintiffs must persuade the
Court that jurisdictional requirements have been met, Harris v. United States, 113 Fed. Cl. 290,
292 (2013). Ms. Ocansey’s complaint falls short of doing so.
The Tucker Act provides that the Court of Federal Claims “shall have jurisdiction to
render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act is solely a jurisdictional statute which
“does not create any substantive right enforceable against the United States for money damages.”
United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a plaintiff must identify “a separate
source of substantive law that creates the right to money damages” in order to establish the
court’s jurisdiction. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in
relevant part).
Ms. Ocansey’s claims for compensatory and punitive damages based on libel, slander,
and medical malpractice are, at their core, tort claims and therefore not within this Court’s
jurisdiction. 28 U.S.C. § 1491(a)(1); see also Jireh Consulting Inc., v. United States, 167 F.
App’x 179, 180 (Fed. Cir. 2006) (holding that the Court of Federal Claims does not possess
jurisdiction to entertain slander and libel claims because they sound in tort); Rick’s Mushroom
Service v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“A claim for professional
negligence is a tort claim.”). Ms. Ocansey’s assertion that her claims are cognizable under
Section 2733 of the Military Claims Act (“MCA”), 10 U.S.C. §§ 2731–2740, is similarly
insufficient to establish this Court’s jurisdiction. See Compl. ¶ 15. The MCA is not a money-
mandating statute for purposes of establishing Tucker Act jurisdiction because it merely
authorizes but does not require the military to settle and pay claims against the government.
Collins v. United States, 67 F.3d 284, 286 (Fed. Cir. 1995).
In short, Ms. Ocansey has failed to establish that this Court possesses jurisdiction to
consider any of the claims in her complaint. Her complaint must therefore be dismissed.
2
CONCLUSION
On the basis of the foregoing, the complaint is DISMISSED without prejudice for lack of
subject-matter jurisdiction. The Clerk is directed to enter judgment accordingly.
Plaintiff has also filed a motion to seal her complaint and related filings pursuant to Rule
5.2 of the Rules of the United States Court of Federal Claims. Pl. Mot., Docket No. 2. For good
cause shown, the motion is hereby GRANTED. The Clerk of the Court is directed to file
plaintiff’s complaint under seal.
IT IS SO ORDERED.
Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
3