De La Cruz Jimenez v. United States

In the Gnited States Court of Federal Clanns

No. 19-1761C

(Filed November 18, 2021)

NOT FOR PUBLICATION

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RAFAEL DANIEL .

DE LA CRUZ JIMENEZ,

Plaintiff,

Vv.

THE UNITED STATES,

Defendant.

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MEMORANDUM OPINION AND ORDER

WOLSKI, Senior Judge.

This matter is brought by Rafael Daniel De La Cruz Jimenez, a federal

inmate proceeding pro se. Plaintiff claims he was injured by the deliberate

indifference and gross neghgence of various federal prison officials who allegedly

did not provide him with timely and adequate medical care in response to the onset

of serious medical issues. See Compl., ECF No. 1, [] 184—76. Mister De La Cruz

Jimenez claims that an enforceable contract exists between him and the federal

government entitling him to compensation for his injuries, due to the failure of the

federal government and various of its officials to respond to documents he created

and mailed. See id. at 3 & §]| 59, 76-79, 84, 97-133; see also Compl. Exs. A-H, ECF

Nos. 1-3 through 1-10. He seeks a total of $52,000,000 in damages from the federal

government and from twenty-six named (and one unnamed) federal officials, sued

purportedly in both official and individual capacities. Compl. at 1-3, 41-42 & FF 2-

56B, 185, 190, 195. He also seeks an array of equitable remedies. Jd. {| 194, 196.

The government has moved to dismiss this case under Rules 12(b)(1) and 12(b)(6) of

the Rules of the United States Court of Federal Claims (RCFC). See Def.’s Mot. to

Dismiss (Def.’s Mot.) at 1-6, ECF No. 6. Because Mr. De La Cruz Jimenez’s tort

claims fall outside of this court’s jurisdiction and he fails to state a claim for the

existence of an enforceable contract, the government’s motion to dismiss this case

must be GRANTED-IN-PART. But, as explained below, the Court finds it is in the

interest of justice to transfer Mr. De La Cruz Jimenez’s tort and Eighth Amendment

claims to a district court.

I. BACKGROUND

Plaintiff Rafael Daniel De La Cruz Jimenez is an inmate at the Oakdale

Federal Correctional Institution (“F.C.I. Oakdale”) in Oakdale, Louisiana. Compl.

41. Plaintiff alleges that, starting in February 2017, he began to feel ill with

symptoms including “severe headachef[s], blurred vision, dizziness, high fever,

general malaise, weakness in the extremfi]ties, and loss of appetite.” Id. J 134; see,

e.g., Compl., Ex. J at 5, ECF No. 1-11. He reported his condition over several weeks

to security officers and requested assistance from medical staff. Compl. §] 185-36,

139. Plaintiff alleges that medical staff repeatedly rebuffed his complaints and

ordered him “not to return to Medical because he was allegedly faking illness.” Jd.

41137. But Mr. De La Cruz Jimenez asserts that his symptoms grew progressively

worse to the point that he could no longer stand or sit up without assistance and

suffered from “severe constipation, vomiting, severe abdominal pain, weight loss,

[and an] inability to eat or drink without vomiting.” Jd. {| 138; see also td., Ex. J at

44-46. Nevertheless, medical staff purportedly continued to deny him assistance

although he and other inmates who witnessed his difficulties requested help “at

least 20 times.” Compl. {]4 189-40, 168-69. Mister De La Cruz Jimenez’s condition

reached a breaking point when he collapsed in a dining hall in late April 2017. Jd.

{ 141, Ex. J at 28. He was transported to a hospital but was thereafter discharged

with a diagnosis of constipation. Compl. |] 142-44, Ex. J at 25. Soon after,

plaintiff asserts that his health deteriorated dramatically as prison staff allegedly

continued to ignore his pain, which finally culminated in another hospital visit and

the eventual discovery of a brain tumor in May of 2017, Compl. at (4 145-47, Ex. J

at 52,

Even after his diagnosis and emergency surgery to remove the tumor, Mr. De

La Cruz Jimenez alleges continued indifference toward his condition on the part of

facility staff. This alleged mistreatment included repeated accusations that he was

faking illness, placement “in unsanitary and unsuitable conditions for healthy

recovery,” and denial of proper care following complications from his surgery. See

Compl. 4 151-63. As a “direct and proximate result of the acts and omissions” of

staff, plaintiff contends that he “is suffering ongoing and continuous irreparable

injuries.” Id, § 170; see also id. (4 59(D), 92(F), Ex. M at 2-4. In support, Mr, De La

Cruz Jimenez attaches extensive medical records and affidavits to his complaint.

See Compl., Exs. J, M, & N, ECF Nos. 1-11, 1-14 & 1-15. He also cites to his rights

under two Federal Bureau of Prisons (BOP) program statements. Compl. 4] 164—

67, 187 (regarding BOP Program Statements 6013.01 and 3420.11); id. Exs. K & L,

ECF Nos. 1-12 & 1-13. Overall, he argues that the acts and omissions of prison

staff in denying him timely and appropriate medical care “constitutes Deliberate

Indifference and Gross Negligence on the part of” all named parties. Compl. 4 172;

see td. {4 168-75.

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In an apparent attempt to secure compensation for his past and present

suffering, Mr. De La Cruz Jimenez mailed a “private international remedy demand”

to numerous federal officials in which he described his experience at F.C.I. Oakdale

and demanded $52,000,000, along with a host of equitable remedies. See Compl.,

Kix. A, His demand also included a provision construing any failure to respond

within 30 days as “informed consent” to his demands. fd. at 10-11; Compl. { 59.

Mister De La Cruz Jimenez received no response to his demand letter after sending

a “notice of fault---opportunity to cure,” Compl. Ex. B, and two “notice[s] of default,”

Compl. Exs. C. & D; see also Compl. ¥] 77-84, 97-133.

Mister De La Cruz Jimenez argues that because the various officials did not

respond or comply with the terms of his demand, a contract was formed between

him and the parties named, Compl. {{ 59, 76-84, 98-118, 179-82; Ex. C at 1; Ex. D

at 1. After failing to succeed on this theory through administrative processes, see

Compl. 4 84(K)-(M), 113-31; Exs. F, G, & H, he has filed a complaint in this court

purporting to contain three causes of action. First, he alleges a breach of the terms

of the “private international remedy demand,” which he construes as a “valid and

enforceable contract between the Parties” to remedy the injuries related to his

medical care. Compl. {| 59, 180-85. Second, Mr. De La Cruz Jimenez asserts

distinct tort claims of deliberate indifference and gross negligence regarding the

medical care he received at F.C.I Oakdale. Jd. 44] 186-90. Finally, plaintiff

requests that the prison provide him with what he terms as “Specific Performance”

under the purported contract, including that it “correct the medical procedures .. .

to prevent any inmates from suffering unnecessarily.” See id. 4 59°), 1383(5)-(6),

191—96, In total, Mr. De La Cruz Jimenez seeks $52,000,000 across his claims and

payment of “all Court costs, fees, expenses, bonds, and other costs as required for

settlement of this Suit.” Compl. 4 132, 179, 195; id, at 41-42 (relief demanded).

The government has moved te dismiss this case pursuant to RCFC 12(b)(1)

and 12(b)(6). See Def.’s Mot. at 1. The government argues that the “substance of

the allegations are clearly directed at Federal officials, over which this Court does

not possess jurisdiction.” Jd. at 2 (citing Hairston v. United States, 99 Fed. Cl. 695,

697-98 (2011) and Brown v. United States, 105 F.8d. 621, 624 (Fed. Cir. 1997)).

Defendant argues that plaintiff “has not alleged all the requisite elements of a

contract with the United States or Federal officials, nor can he estabhsh them”

based on Mr. De La Cruz Jimenez’s demand letter. Def’s Mot. at 2. And the

government notes that this court lacks jurisdiction over claims sounding in tort or

brought under the Eighth Amendment, id. (citing Trafny v. United States, 503 F.3d

1339, 1340 (Fed. Cir. 2007)), and maintains that transfer to a district court would

“not appear’ to be “in the interests of justice satisfying 28 U.S.C. § 1631 due to the

“high standard” for liability, id. at 3—4.

In his response, plaintiff primarily discusses his contract theory. See Pl.’s

Response to Def.’s Mot. to Dismiss (Pl.’s Resp.), ECF No. 12 at 8-18.! Plaintiff

maintains that the various federal officials who received his “remedy demand”

accepted offers to contract by not responding in the time specified and possessed the

authority to bind the federal government to a contract by virtue of the doctrine of

“respondeat superior.” See id. at 8-18, 16. He argues that the government's

“denying [him] the right to timely and medically acceptable healthcare constitutes

{his} [clonsideration regarding the [c]ontract.” fd. at 12. In addition, he contends

that he suffered from violations of his “right to timely and medically acceptable

healthcare,” under BOP Program Statements 6013.01 and 3420.11. Jd. at 3, 11.2

Given the nature of plaintiff's response, in reply the government primarily

reiterated the reasons for dismissal of the case that it advanced in its motion. See

Def.’s Reply, ECF No. 18, at 1-38.

Ii. DISCUSSION

A. Standard of Review

Under RCFC 12(b)(1), this court must dismiss claims that do not fall within

its subject-matter jurisdiction. When considering whether to grant a motion to

dismiss a case for lack of subject-matter jurisdiction, our court will normally accept

as true all factual allegations the non-movant made and draw all reasonable

inferences in the light most favorable to that party. See Scheuer v. Rhodes, 416 U.S.

232, 236 (1974); Pixton v. B&B Plastics, Ine., 291 F.3d 1324, 13826 (Fed. Cir. 2002)

(stating that on a motion to dismiss for lack of subject-matter jurisdiction this court

views “the alleged facts in the complaint as true, and if the facts reveal any

1 Pages are cited using the internal pagination of the document, not the HCI page,

as these differ due to the attachment of two notices to the front of the package filed

as docket entry 12.

2 Mister De La Cruz Jimenez also misunderstands our rules and seems to argue

that the legal conclusions and contentions in his complaint must be taken as

admitted, either because undisputed facts are assumed true for purposes of Rule 12

motions, or because the government chose to use a Rule 12 motion instead of an

answer in responding to the complaint. See Pl.’s Resp. at 4-9. In a separate order

denying plaintiff's motions that were also based on these arguments, the Court has

addressed Mr. De La Cruz Jimenez’s incorrect interpretation of RCFC 8(b)(6) and

RCFC 12. De La Cruz Jimenez v. United States, No. 19-1761C, 2021 WL 303307, at

*1 (Fed. Cl. Jan. 28, 2021). Moreover, it is only well-pleaded factual allegations that

are taken as true under a Rule 12(b) motion, and courts “are not bound to aecept as

true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.

265, 286 (1986).

reasonable basis upon which the non-movant may prevail, dismissal 1s

inappropriate”); CBY Design Builders v. United States, 105 Fed. Cl. 303, 325 (2012).

Though a pro se plaintiff's filings are to be held to a less stringent standard

than filings drafted by a lawyer, see Estelle v. Gamble, 429 U.S. 97, 106 (1976);

Schirripa v. United States, 747 F. App’x. 847, 849 (Fed. Cir. 2018) @elying on

Erickson uv. Pardus, 551 U.S. 89, 94 (2007)), this lenient standard does not remove a

pro se litigant’s obligation to demonstrate jurisdiction by a preponderance of the

evidence, see McNutt vu. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189

(1936) (explaining the plaintiff's responsibility for showing that the claim falls

within the court’s jurisdiction); Henke v. United States, 60 F.3d 795, 799 (Fed. Cir.

1998) (noting that a plaintiff's status does not excuse defects in the complaint);

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

(stating that the burden of proof for establishing jurisdiction is by a preponderance

of the evidence). For a claim to fall within our court’s Tucker Act jurisdiction, 28

U.S.C. § 1491(a)(1), it must be based on a contract with the federal government or

on a money-mandating law which was allegedly violated by the federal government.

See United States v. Mitchell, 463 U.S. 206, 216-17 (1983).

Even if a plaintiff asserts claims that fall within the court’s jurisdiction, he

must still present a valid claim on which the court can grant relief. See RCFC

12(b)(6). Notably, “[w]hen considering a motion to dismiss a case for failure to state

a claim upon which relief can be granted pursuant to Rule 12(b)(6), a court accepts

all well-pled facts as true and draws all reasonable inferences in plaintiff's favor.”

Silver Buckle Mines, Inc. v. United States, 117 Fed. Cl. 786, 791 (2014) (citing

Seheuer, 416 U.S. at 286; Pixton, 291 F.3d at 1326; Englewood Terrace Lid. P’ship v.

United States, 61 Fed, CL 588, 584 (2004)). Granting a motion to dismiss a case for

failure to state a claim “is appropriate when the facts asserted by the claimant do

not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257

(Fed. Cir. 2002). Denial of the motion is warranted when the complaint presents

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail,

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

B. Analysis

Through the Tucker Act, Congress has provided:

The United States Court of Federal Claims shall have jurisdiction to

render judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress or any regulation

of an executive department, or upon any express or implied contract

with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort.

28 U.S.C. § 1491(a)(1} (2018). This provision gives our court “jurisdiction over suits

against the United States, not against individual federal officials.” Brown v. United

States, 105 F.3d 621, 624 (Fed. Cir. 1997); see also Stephenson v. United States, 58

Fed. Cl. 186, 190 (2003) (holding that “the only proper defendant for any matter

before this court is the United States, not its officers, nor any other individual”)

(citing United States vu. Sherwood, 312 U.S. 584, 588 (1941)) (emphasis in original).

Thus, to the extent Mr. De La Cruz Jimenez is attempting to raise claims against

individual federal officials from the Department of Justice, BOP or F.C.I. Oakdale,

in any capacity, see Compl. J 3-4, 7-56B, those claims are not within our

jurisdiction. See Hairston v. United States, 99 Fed. Cl. 695, 697 (2011). The Court

now turns to the specific causes of action and considers them as brought against the

United States government.

1, The Non-Contractual Claims

Plaintiff's second cause of action encompasses claims of “|djeliberate

[ijndifference and [g]ross neghgence in providing [plaintiff] with timely and

adequate healthcare.” Compl. {| 190; see id. 9] 184-77, 186-89. These types of

claims, however, are among those “sounding in tort” and thus beyond our court’s

jurisdiction under the Tucker Act. See 28 U.S.C. § 1491(a)(1); Trafny v. United

States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (explaining that the Tucker Act

“expressly exclud[es] from the court’s jurisdiction claims ‘sounding in tort” (quoting

28 U.S.C. § 1491(a)(1))). “Allegations that the BOP failed te provide appropriate

medical care are claims sounding in tort over which the Claims Court lacks

jurisdiction.” Moore v. United States, 685 F. App’x 991, 991 (Fed. Cir. 2017) (citing

Trafny, 503 F.3d at 1340). In addition to claims of deliberate indifference, claims

based on negligence, gross or otherwise, are not within our subject-matter

jurisdiction, see Moore, 685 IF. App’x at 991; Souders v. S.C. Pub, Serv. Auth., 497

F.3d 13808, 1807 & n.5 (Fed. Cir. 2007); O'Connor v. United States, 355 F. App’x 412,

413 (Fed. Cir. 2009); Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998).

To the extent Mr. De La Cruz Jimenez’s complaint can be construed as

raising these claims under the Eighth Amendment, see Estelle, 429 U.S. at 104

(1976) (holding that “deliberate indifference to serious medical needs of prisoners”

violates the Eighth Amendment), our court is still without jurisdiction over such

claims. Only violations of constitutional provisions that mandate the payment of

money can be heard by our court. See Mitchell, 463 U.S. at 216-17. The Federal

Circuit has held that our court “does not have jurisdiction over claims arising under

the Eighth Amendment, as the Eighth Amendment is not a money-mandating

provision.” Trafny, 503 F.3d at 1340 Gnternal quotation and citations omitted).

Moreover, the plain text of the portions of the two BOP regulations invoked by Mr.

De La Cruz Jimenez, Program Statements 3420.11 and 6013.01, say nothing about

the payment of money by the federal government, see Compl. xs. K & L, and thus

cannot be the basis of our jurisdiction, see Mitchell, 463 U.S. at 216-17.

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Thus, whether they are construed as torts or as allegations of “cruel and

unusual punishments,” U.S. CONST. amend. VIII, the claims under Mr. De La Cruz

Jimenez’s second cause of action are not within the subject matter that Congress

has placed within our court’s jurisdiction. This does not, however, necessarily mean

that defendant’s motion to dismiss this cause of action must be granted. As the

government acknowledges, see Def.’s Mot. at 3-4; Def.’s Reply at 2-3, another

statute requires that when a federal “court finds that there is a want of jurisdiction,

the court shall, if it is in the interest of justice, transfer such action... to any other

such court in which the action... could have been brought at the time it was filed,”

28 U.S.C. § 1631 (2018). United States district courts have jurisdiction over tort

claims brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1846(b)(1),

and over Eighth Amendment violations brought pursuant to the rule from Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397

(1971); see Carlson v. Green, 446 U.S. 14, 18-23 (1980) (holding that a Bivens action

may be brought for an Eighth Amendment violation).

The government maintains, however, that “it does not appear that” transfer

is warranted under section 1631, Def.’s Mot. at 3, focusing exclusively on whether

Mr. De La Cruz Jimenez’s allegations can satisfy the standard developed for Eighth

Amendment violations, namely a “deliberate indifference to serious medical needs,”

see Hstelle, 429 U.S. 104. Defendant argues that plaintiff’s “medical records suggest

that he was properly treated and continued to receive care by prison medical staff

over the course of several months,” and that once the brain tumor was identified,

“surgery was performed and there was sufficient follow-up care.” Def.’s Mot. at 4.

Accordingly, the government concludes that “it does not appear” plaintiff “can show

the ‘wanton state of mind’ necessary” under the applicable standard. Jd. (quoting

Hairsion, 99 Fed. CL. at 699).

For his part, Mr. De La Cruz Jimenez resists transfer of his case, based on

his misunderstanding that the recipient court would be a state court with no

jurisdiction over the federal government, Pl.’s Resp. at 5, rather than the U.S.

district court where F.C.J. Oakdale is located. But a “court can transfer the case

even if not asked to do so by either party.” Phillips v. Setter, 173 F.3d 609, 610 (7th

Cir. 1999); see also Tex. Peanut Farmers v. United States, 409 F.3d 13870, 1375 (Fed.

Cir. 2005) (citing Phillips). The “interest of justice” analysis is often framed as

“relat[{ing] 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)

(citing Zinger Constr. Co. v. United States, 753 F.2d 1058, 1055 (Ped. Cir. 1985)).

When a complaint presents “spurious and specious arguments” founded upon “legal

points not arguable on their merits” and “those whose disposition is obvious,” a

court should decline to transfer the complaint to the appropriate forum. Galloway

Farms, 834 F.2d at 1000 (citing Devices for Med., Inc. v. Boehl, 822 F.2d 1062, 1068

(Fed. Cur. 1987); Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 919

(5th Cir. 1987); Reliance Ins. Co. v. Sweeney Corp., Md., 792 F.2d 1187, 1188 (D.C.

-7-

Cir, 1986)); see also Paresky v. United States, 189 Fed. Cl. 196, 212 (2018) (Tmplicit

in the Federal Circuit's framing, then, is the dichotomy between frivolous claims,

which should not be transferred, and claims that are non-frivolous and as such

should be decided on the merits.” (cleaned up)}.

To avoid burdening another court with a matter that may be frivolous, a

court applying section 1631 must by necessity conduct a “limited review of the

merits.” Phillips, 173 F.3d at 611. But the lack of familiarity a court will have with

matters outside of its jurisdictional competence should counsel against refusing to

transfer a case unless it is “a sure loser,” id., particularly in respect to timeliness

and exhaustion requirements. Concerning the latter, the complaint shows that

within fourteen months of the first occasion on which plaintiff believed his medical

needs were improperly ignored, he sent by certified mail to the Department of

Justice and to F.C.I. Oakdale his unconventional written demand detailing his

allegations and requesting payment, albeit of an absurdly high level of damages.

Compl. Ex. A. It is not obvious to the Court that this written demand would fail to

satisfy the presentment requirement under the FTCA, see 28 U.S.C. § 2675(a); Mone

u. United States, 766 F. App’x 979, 985 (Fed. Cir. 2019); and the government does

not even mention the possibility that Mr. De La Cruz Jimenez’s complaint could be

construed as raising an FTCA claim, see Def.’s Mot. at 1-4; Def.’s Reply at 1-3.3

In opposing the transfer of this case to a district court, the government relies

on but one persuasive precedent from our court. Def.’s Mot. at 3-4 (discussing

Hairston, 99 Fed. Cl. at 698-99). But that case, brought by a prisoner who had filed

at least twenty federal cases and who had refused to cooperate with a medical

provider, Hairston, 99 Fed. Cl. at 699-700, hardly resembles this matter, in which a

prisoner has compiled eighteen affidavits from witnesses of his alleged

mistreatment, see Compl. Ex. N, and medical records which show, among other

things, his concern over a potential brain tumor due to family history, id. Ex. J at

ll. And far from asserting that Mr. De La Cruz Jimenez’s medical treatment claim

was frivolous or “a sure loser,” Phillips, 173 F.3d at 611, the government much more

tentatively discusses what “medical records suggest” and what it believes “does not

appear’ to be demonstrable, Def.’s Mot. at 4. Moreover, in ignoring a potential

FTCA claim, defendant fails to address whether the allegations could support

plaintiff's gross negligence claim, which is determined under a lower standard than

3 The Court notes that because the failure to exhaust administrative remedies is an

affirmative defense under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, see

Jones v. Bock, 549 U.S. 199, 216 (2007), the Fifth Circuit does not allow district

courts to sua sponte dismiss Bivens actions alleging deliberate indifference to

prisoners’ serious medical needs, see Chamberlain v. Chandler, 344 F. App’x 911,

912-13 (5th Cir. 2009) (citing Jones, 549 U.S. at 216; Carbe v. Lappin, 492 F.8d 3285,

328 (5th Cir. 2007)).

a deliberate indifference claim, see Delgado v. U.S. Marshal, No. 6:12-cv-0347, 2014

WL 43887344, at *6-7 (W.D. La. Sept. 8, 2014); Frost v. Young, No. 2:12-CV-1985,

2012 WL 6043031, at *7 (W.D. La. Dec. 3, 2012); see also Lewis v. City of Bastrop,

280 So. 3d 907, 917 (La. Ct. App. 2019) (defining gross negligence).

Under these circumstances, the Court finds that it would be in the interest of

justice to transfer, to the federal trial court serving the area where the prison is

located, any tort and Eighth Amendment claims that Mr. De La Cruz Jimenez is

attempting to raise. Thus, under 28 U.S.C. § 1631, the second cause of action shall

be transferred to the United States District Court for the Western District of

Louisiana.

2, The Contract Claims

The government has moved to dismiss the first cause of action, which is

purportedly for breach of a contract, see Compl. 4] 180-85, and the third cause of

action, which seeks “specific performance” of the purported contract, id. {{] 191-96,

for failing to state a claim upon which relief can be granted, under RCFC 12(b)(6).

Def.’s Mot. at 2-3. In response, Mr. De La Cruz Jimenez insists that there is an

implied contract between him and the government, construing the government’s

failure to respond to his “Private International Remedy Demand” as the acceptance

of his offer to contract. See Pl.’s Resp. at 3, 9-12, 16; Compl. Exs. A-G.

As the Federal Circuit has long held, an impled-in-fact contract requires the

establishment of several elements: “(1) mutuality of intent to contract;

(2) consideration; ... (3) lack of ambiguity in offer and acceptance”; and (4) that

“the Government representative ‘whose conduct is relied upon [had] actual

authority to bind the government in contract.” City of El Centro v. United States,

922 F.2d 816, 820 (Fed. Cir. 1990) (quoting Juda v. United States, 6 Ct. Cl. 441, 452

(1984)). But even if every fact that Mr. De La Cruz Jimenez alleges is assumed to

be true, see Adams v. United States, 391 F.3d 1212, 1218 Wed. Cir. 2004), no

reasonable inferences can come close to establishing these elements.

Instead of alleging any conduct on the part of the federal government from

which an intent to contract and an unambiguous acceptance of Mr. De La Cruz

Jimenez’s offer Gf the unusual demand document can be viewed as such, see Compl.

Kix. A) may be inferred, plaintiff relies on the government’s failure to respond, a lack

of conduct. For silence or the lack of a response to constitute acceptance of an offer

to contract, special circumstances showing a prior understanding between the

parties must be alleged. See Radtoptics, Inc. v. United States, 223 Ct. Cl. 594, 609

(1980) (“Silence may not be construed as an acceptance of an offer in the absence of

special circumstances existing prior to the submission of the offer.”); Pressman v.

United States, 33 Fed. Cl. 438, 443 (1995) (noting “the general proposition that

silence does not constitute acceptance of an offer, absent some prior

understanding”).

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Nothing of this sort has been alleged by Mr. De La Cruz Jimenez, who merely

mailed a document to the government containing statements such as this: “The

parties are obligated to provide lawful defense by a responsive answer, as defined

herein, or in the alternative consent to all terms and conditions of this notice.”

Compl. Ex. A at 9. Such contrivances have been uniformly rejected by our court and

Federal Circuit as failing to allege the elements of a contract. See, e.g., Gullet-El v.

United States, 666 F. App’x 898, 895 (Fed. Cir. 2016) (holding “the failure of

government officials to affirmatively renounce the terms of the unexecuted

contracts [plaintiff] sent to them is not sufficient to establish that the government

accepted the terms of those contracts”); Martin v. United States, 102 Fed. Cl. 779,

785 (2012) (explaining “silence of the [government] simply does not qualify as an

acceptance of the terms”); Heydt v. United States, 38 Fed. Cl. 286, 302 (1997) (“The

Government's silence, or lack of response, cannot constitute an acceptance of

[plaintiff's] demands for payment.”); Oyer v. United States, No. 18-908, 2019 WL

6358035, at *3-4 (Fed. Cl. Nov. 27, 2019) @ejecting a similar pleading as a

“contrivance” improperly attempting to “launder|] ... tort actions into matters

coming within our jurisdiction over implied-in-fact contracts”); Harris v. United

States, No. 138-69C, 2013 WL 4017276, at *2 (Fed. Cl. July 31, 2018).4

Moreover, rather than identify any prospective consideration he purported to

provide to the government, Mr. De La Cruz only identifies his previous medical

treatment. See Pl.’s Resp. at 12, 16. But “past consideration is no consideration.”

Estate of Bogley, 206 Ct. Cl. 695, 705 (1975); Woll v. United States, 45 Fed. Cl. 475,

477 (1999). And plaintiff makes no effort to establish that the federal officers and

employees who failed to respond to his demand possessed the requisite authority to

bind the government in a contract, see Brunner v. United States, 70 Fed. Cl. 623,

640-41 (2006), instead invoking general concepts of “[r]espondeat [s}uperior” and

“lolfficial [clapacity,” see Pl.’s Resp. at 12, 16. This is far from adequate to satisfy

the authority element. See City of Hl Centro v, United States, 922 F.2d 816, 820-21

(red, Cir. 1990). For all the above reasons, no valid contract. has been alleged, and

thus the first cause of action fails to state a claim upon which relief can be granted.

The government's motion to dismiss that cause of action is accordingly GRANTED.

As the third cause of action seeks specific performance of the contract that

was not adequately pled, see Compl. {| 192—96, it can be dismissed for the same

reasons. But this cause of action suffers from a more fundamental flaw, as it is

1 Indeed, it is disappointing that Mr. De La Cruz Jimenez, who so meticulously

documented his health problems and the BOP’s alleged mistreatment of them,

employed this artifice to try to conjure a contract out of nothing. A lack of

jurisdiction may be found over an alleged breach claim “when the plaintiff's

allegations are frivolous, wholly insubstantial, or made solely for the purpose of

obtaining jurisdiction.” Columbus Regional Hosp. v. United States, 990 F.3d 1380,

1341 (Fed. Cir, 2021).

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well-established that our court cannot order specific performance as a contract

remedy. See Columbus Regional Hosp. v. United States, 990 F.3d 1330, 1354 (Fed.

Cir. 2021) (explaining that our court’s breach of contract jurisdiction extends over

claims “solely for money and not for injunctive relief or specific performance”

(cleaned up)); Massie v. United States, 226 F.3d 1318, 13821 (Fed. Cir. 2000) (holding

our court has “no authority to order” specific performance as a contract remedy);

Wood v. United States, 961 F.2d 195, 199 (Fed. Cir, 1992) (noting that the specific

performance contract remedy is not available in our court),6 Accordingly, the

government’s motion to dismiss that cause of action, for failure to state a claim

upon which relief can be granted, under RCFC 12(b)(6), is GRANTED.

Il. CONCLUSION

For the foregoing reasons, the government’s motion to dismiss this case is

GRANTED-IN-PART and DENIED-IN-PART. The first and third causes of

action are dismissed under RCFC 12(b)(6) as failing to state claims upon which

relief can be granted, and the Clerk shall enter judgment accordingly. But it is in

the interest of justice that the second cause of action, raising tort and Highth

Amendment claims that are outside of our court’s jurisdiction, be transferred

pursuant to 28 U.S.C. § 1631. Accordingly, the Clerk shall TRANSFER the second

cause of action to the United States District Court for the Western District of

Louisiana. No costs shall be awarded.

ITIS SO ORDERED.

Laie

. WOLSEY

udge

5 In Columbus Regional Hospital, 990 F.3d at 13854, the Federal Circuit cited a case

which, in turn, noted that our equitable power in bid protest cases was a narrow

exception to this rule. See Kanemoto v. Reno, 41 F.3d 641, 645 (Fed. Cir. 1994).

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