Buong Van Ho v. United States

52 Fed. Cl. 664, 2002 U.S. Claims LEXIS 109, 2002 WL 823510
CourtUnited States Court of Federal Claims
DecidedApril 25, 2002
DocketNo. 01-324C
StatusPublished
Cited by1 cases

This text of 52 Fed. Cl. 664 (Buong Van Ho v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buong Van Ho v. United States, 52 Fed. Cl. 664, 2002 U.S. Claims LEXIS 109, 2002 WL 823510 (uscfc 2002).

Opinion

OPINION

BRUGGINK, Judge.

This is an action by persons who worked for the United States during the war in Vietnam. They seek compensation for their service prior to the collapse of the South Vietnamese government in 1975. Plaintiffs seek to proceed as a class. Pending is defendant’s motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief may be granted. Also pending is plaintiffs’ motion for class certification and defendant’s motion to stay consideration of class certification pending the outcome of the motion to dismiss. Oral argument was heard on April 22, 2002. As explained below, we find that this court does not have jurisdiction over the claims presented by plaintiffs.

FACTUAL BACKGROUND1

Plaintiffs were, or are, citizens of the former Republic of Vietnam. They were hired at various times prior to April 30, 1975 to work for the United States Government in Vietnam. Plaintiffs claim that they were employees of either the former United States Embassy in the Republic of Vietnam, the Department of the Air Force, the United States Marine Corps, the United States Overseas Mission, the United States Agency for International Development (“USAID”), the Central Intelligence Agency, or other [665]*665government agencies. Although each agency had its own policy, plaintiffs were commonly paid in check by the United States on a bimonthly basis payable in Vietnamese Piasters. On or about April 30, 1975, the North Vietnamese Army invaded South Vietnam and the Provisional Revolutionary Government of Vietnam took control of the country. This resulted in the United States’ swift departure from Vietnam. Between April 30, 1975 and July 2000, there were no relations between the Socialist Republic of Vietnam and the United States.

Currently there are three plaintiffs named in the complaint: Mr. Buong Van Ho, Mr. Tho Truong Vo, and Mr. Minh Van Do. In 1976, Mr. Ho, along with his family, arrived at Fort Chaffee, Arkansas, on a special immigration visa that admitted former employees into the United States as refugees of the war in Vietnam. Mr. Ho left the camp when a sponsor from Lincoln, Nebraska, became available. He currently resides in Westmin-ister, California. The complaint contains less information regarding the arrival in the United States of Mr. Vo and Mr. Do, but they have been in the United States since at least the mid-1980’s.

Plaintiffs complain that the United States left Vietnam without paying for their services. Plaintiffs claim that they are entitled to unpaid final wages and separation allowance benefits, retirement benefits, Tet Bonus, sick leave, annual leave, holiday pay, and cash-subvouchers in the amount of two-thousand dollars issued by defendant. The final wages accrued from April 1, 1975 through April 30, 1975. Some plaintiffs claim that they were not paid for periods before April 1, 1975 because of the breakdown in normal procedures. In lieu of advance separation notice, many of the plaintiffs were entitled under their respective employment agreements to a payment equal to one month’s salary. Pl.’s Ex. I. Potential class members have made demands for these amounts and received unsatisfactory responses from the United States government. The responses can be grouped into two categories: (1) denied based on 31 U.S.C. § 3329 (1994) (disallowing the Treasury to send a check to Vietnam) and Treasury Regulation 31 C.F.R. § 211.1 (withholding delivery of checks),2 or (2) denied based on the 6-year statute of limitations, 31 U.S.C. § 3702(b) (1994 & Supp.1998).3 The exception is a letter from Mr. Cicippio, of the USAID, dated May 5, 1995 to Mr. McCann regarding the claim of Mrs. Nguyen Thi Hao (not a named plaintiff in the pending case). It stated that “A.I.D. has been and will continue to honor all claim[s] to persons holding an Original Receipt issued toward the end of the war in Vietnam, all of which are in the amount of 2,000 dollars.” Pl.’s Ex. M.

On May 29, 2001, plaintiffs filed this action. Their claims for relief include: (1) Breach of Contract, (2) Breach of Fiduciary Duty, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Common Counts, (5) Quantum Meruit, (6) Restitution/Unjust Enrichment, (7) Promissory Estoppel, (8) Constructive Trust, (9) Resulting Trust, (10) Accounting, and (11) Declaratory Relief. Plaintiffs also demand a jury trial.4 -Defendants filed this motion to dismiss and a motion to stay consideration of plaintiffs’ motion for class certification.

DISCUSSION

Plaintiffs bear the burden of establishing jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991), died with ap[666]*666proval in Bobula v. U.S. Department of Justice, 970 F.2d 854, 858 (Fed.Cir.1992). Under the Tucker Act, this court’s primary jurisdictional statute, a suit may only be brought if it is:

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) (1994). In other words, a plaintiff must seek monetary relief, or equitable relief that is “an incident of and collateral to” a claim for money damages. Bobula, 970 F.2d at 859. Although Congress has authorized the Court of Federal Claims “to grant equitable relief in certain limited circumstances, those circumstances do not include the general authority to grant equitable relief whenever a declaratory judgment or an injunction would assist a claimant in obtaining monetary benefits in another forum.” Nat’l Air Traffic Controllers Assn. v. United States, 160 F.3d 714, 716 (Fed.Cir.1998). Plaintiffs’ claims for equitable relief and declaratory relief, counts eight through eleven of their complaint, are therefore not within the jurisdiction of this court.

Defendant argues that plaintiffs’ remaining claims are barred by the statute of limitations. Every claim over which the United States Court of Federal Claims has jurisdiction “shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (1994). On their face, the claims would appear to be barred, having accrued no later than 1975. As a general rule, “a claim accrues when all events necessary to the Government’s liability have occurred ...” L.S.S. Leasing Corp. v. United States, 695 F.2d 1359, 1365 (Fed.Cir.1982).

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Bluebook (online)
52 Fed. Cl. 664, 2002 U.S. Claims LEXIS 109, 2002 WL 823510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buong-van-ho-v-united-states-uscfc-2002.