Crane v. United States

127 Fed. Cl. 169, 2016 U.S. Claims LEXIS 567, 2016 WL 2941327

Opinion

Federal Tort Claims Act, 28 U.S.C. § 2672 (Administrative Adjustment of Claims); Maryland Wage Payment And Collection Law; Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (Jurisdiction); Tucker Act, 28 U.S.C. § 2501 (Statute of Limitations).

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S MOTION TO DISMISS

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND. ¹

Bryan O. Crane is a former civilian employee of the Naval Air Systems Command (“NAVAIR”). Compl. ¶ 2. On February 12, 2000, Mr. Crane was injured in a work-related accident. Compl. at 10,² On February 3, 2003, Mr. Crane reported back to NAVAIR for work. Compl. at 11. On February 7, 2003, Mr. Crane informed NAVAIR that he could not continue working, because “agreed upon ergonomic accommodations were not provided ... [and] would not be forthcoming within a reasonable period of time.” Compl. at 11.

During the subsequent period when Mr. Crane was unable to report to work, he received workers’ compensation benefits. Compl. at 10-11. Between February 14, 2003 and April 13, 2005, however, the Defense Financial and Accounting Services (“DFAS”), NAVAIR’s payroll provider, also continued to pay Mr. Crane’s wages. Compl, Ex. 5, at 12.

On February 13, 2004 and January 3, 2006, to repay wages mistakenly made by DFAS, Mr. Crane sent DFAS two personal checks that totaled $16,837.06. Compl. Ex. 4, at 2; see also Compl. Ex. 7, at 1, 3. In addition, Mr. Crane returned five government cheeks in the total amount of $7,962.38, leaving an outstanding balance of $18,366.84 to be repaid. Compl. Ex. 4, at 2. DFAS also deducted $ 10,280.00 from offset amounts allowable by law.³ Compl. Ex. 4, at 2. These deductions left Mr. Crane with an outstanding balance of approximately $8,000.00. Compl. Ex. 4, at 2.

On July 3, 2006, Mr. Crane retired from federal service for medical reasons. Compl. Ex. 3, at 2. At the time of his retirement, DFAS estimated that Mr. Crane was entitled to a lump-sum of $9,755.00 for accrued annual leave. Compl. Ex. 22. Because of Mr. Crane’s outstanding balance, DFAS applied his annual leave due to eliminate the outstanding balance for overpaid wages. Compl. Ex. 4, at 2. Mr. Crane claimed that DFAS improperly “confiscated $9,755.00 of vacation pay to apply against [his] alleged and nonexistent debt.” Compl. at 13.

On March 19, 2008, Mr. Crane appealed DFAS’s actions to the Office of Personnel Management (“OPM”). Compl. Ex. 3, at 2. Mr. Crane disputed DFAS’s determination that he owed money for salary overpayment during the tax years 2003 through 2006 and requested reimbursement of the lump-sum annual leave payment that he did not receive. Compl. Ex. 3, at 2. On March 31, 2008, OPM informed Mr. Crane that he had to file a claim with the Department of Navy (“Navy”), before he could file a claim with OPM. Compl. Ex. 3, at 2. On March 31, 2008, Mr. Crane filed a claim with the Navy. Compl. Ex. 3, at 2.

On May 5, 2008, Mr. Crane again sent a letter to the Navy disputing the amount owed. Compl. Ex. 4, at 1. Mr. Crane also asked United States Senator Bill Nelson to intervene on his behalf. Compl. Ex, 4, at 1. On April 24, 2008, DFAS responded to Senator Nelson including an audit of Mr. Crane’s pay records that showed Mr. Crane was entitled to are fund of $1,8 86.51 that was paid. Compl. Ex. 3, at 3; Compl. Ex. 4, at -2. On September 15, 2009, Mr. Crane’s claim was denied. Compl. Ex. 3, at 2.

On October 9, 2009, Mr. Crane provided OPM with a copy of the denial letter. Compl. Ex. 3, at 2. On November 17, 2009, OPM accepted the claim and requested an agency administrative report (“AAR”) from the Navy. Compl. Ex. 4; Compl. Ex. 3, at 2. On December 7, 2009, the Navy provided OPM with an AAR, including a detailed Audit Summary of Mr. Crane’s pay records from 2003 through 2006. Compl. Ex, 4, at 1. The December 7, 2009 AAR stated that “[i]t is the position of the [Navy] that the DFAS response to Senator Nelson adequately and completely addresses all of the substantive issues raised by Mr. Crane regarding his salary overpayment and his claim should be disallowed.” Compl. Ex. 4, at 1.

On January 25, 2010, Mr. Crane responded that DFAS wrongfully applied his lump sum annual leave towards the balance he owed for wage overpayments. ■ Compl. Ex. 8, at 3.

On November 15, 2012, OPM issued a decision denying Mr. Crane’s claim, finding that he had failed to establish that “DFAS calculated his salary overpayment incorrectly.” Compl. Ex. 8, at 5.

II. PROCEDURAL HISTORY.

On April 29, 2015, Mr. Bryan O. Crane (“Plaintiff’) filed a Complaint (“Compl.”) in the United States Court of Federal Claims, under 28 U.S.C. § 2672⁴ and the Maryland Wage Payment and Collection Law,⁵ alleging: $49,605.60 for unpaid “vacation and sick pay;” $37,284.18 for “lost investment income from unpaid vacation pay;” $18,540.05 for “lost investment income from unpaid sick pay;” $1,809.36 for unreimbursed travel expenses; and $5,880.42 for “lost investment income from unreimbursed travel expenses.” Compl. at 1. The Complaint also seeks $5,000,000 for “physical and mental damages.” Compl. at 17-18.

On June 29, 2015, the Government filed.a Motion To Dismiss (“Gov’t Mot.”), pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), On January 20, 2016, Plaintiff filed a Response (“PI. Resp.”). On February 16, 2016, the Government filed a Reply (“Gov’t Reply”).

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, “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, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages .,. [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir. 2005) (en banc) (“The Tucker Act ... does not create a substantive cause of action; .. a plaintiff must identify a separate source of substantive law that creates the right to money damages.... [T]hat source must be ‘money-mandating.’ ”). Specifically, a plaintiff must demonstrate that the source of substantive law upon which he relies “can fairly be interpreted as mandating compensation by the Federal Government[.]” Testan, 424 U.S. at 400, 96 S.Ct. 948. And, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[O]nce the [trial] court’s subject matter jurisdiction [is] put in question ... [the plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).

B. Standard Of Review For Pro Se Litigants.

Pro se plaintiffs’ pleadings are held to a less stringent standard than those of litigants ■ represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers”). This court traditionally examines the record “to see if [a pro se ] plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 188 Ct.Cl. 456, 468, 412 F.2d 1285 (1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs complaint, the court “does not excuse [a pro se complaint’s] failures.” Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995).

C. The Government’s June 29, 2015 Motion To Dismiss.

The court is cognizant of its obligation liberally to construe a pro se plaintiffs pleadings. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that a “pro se document is to be liberally construed”). But, pro se plaintiffs must still “comply with the applicable rules of procedural and substantive law.” Walsh v. United States, 3 Cl.Ct. 539, 541 (1983).

1. Whether The Court Has Jurisdiction To Adjudicate The Claims Alleged In The April 29, 2015 Complaint.

a.The Government’s Argument.

The Government argues that the court does not have jurisdiction to adjudicate the claims alleged in the April 29, 2015 Complaint regarding violations of 28 U.S.C. § 2672 and request for physical and mental damages, because the court does not have jurisdiction to adjudicate tort claims. Gov’t Mot. at 6, 8. In addition, the claim regarding violations of the Maryland Wage Payment and Collection Law should be dismissed, because they exceed the court’s subject matter jurisdiction. Gov’t Mot. at 6. As for Plaintiffs claims for unpaid sick leave and unreim-bursed travel expenses, they are barred by the statute of limitations, because the April 29, 2015 Complaint was filed twelve years after his claims for unpaid sick leave and unreimbursed travel expenses accrued in February 2003. Gov’t Mot. at 7. Finally, claims for loss of future profits or missed opportunities for investment growth are not recoverable in these circumstances. Gov’t Mot. at 8.

b.Plaintiffs Response.

Plaintiff responds that he did not intend to file this ease relying on Maryland law, but in a prior case the Government stated the proper venue was the United States Court of Federal Claims. PI. Resp. at 1-2 (citing Crane v. Naval Air Systems Command, 2:04-CV-363-FTM-29SPC (D. FI. 2005).⁶ In addition, Plaintiff argues that there is no statute of limitations on wage issues and cites 28 U.S.C. § 2674 for the proposition that Plaintiff is seeking damages that the court can award since they are not punitive damages, PI. Resp. at 2-3.

c.The Court’s Resolution.

i. Whether The Court Has Jurisdiction To Adjudicate Tort Claims.

The April 29, 2015 Complaint cites 28 U.S.C. § 2672 as authorizing the head of any Federal agency to “consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property ... caused by the negligent or wrongful act ... of any employee of the agency.” 28 U.S.C. § 2672. But, that statute concerns tort claims. It is well-established that the United States Court of Federal Claims does not have jurisdiction to adjudicate tort claims, because the Tucker Act expressly withdraws those claims from the scope of the court’s jurisdiction. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States ... in cases not sounding in tort.” (emphasis added)); see also Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (“[T]ort cases are outside the jurisdiction of the [United States] Court of Federal Claims.”). Likewise, the United States Court of Federal Claims cannot adjudicate a claim for “physical and mental damages,” that is also founded in tort. See Garner v. United States, 230 Ct.Cl. 941, 943 (1982) (citing 28 U.S.C. § 1491) (“[Rjelief for mental distress and psychological damage is founded in tort”).

For these reasons, the court must dismiss the tort claims alleged in the April 29, 2015 Complaint.

ii. Whether The Court Has Jurisdiction To Adjudicate State Law Claims.

The April 29, 2015 Complaint seeks relief under the Maryland Wage Payment and Collection Law. Compl. at 1. The Maryland Wage Payment and Collection Law is a part of the Maryland Labor and Employment state laws that set forth the rights by which Maryland employees receive wages. See Md.Code Ann., Lab. & Empl. § 3-507.2(a) (2008 Repl.Vol., 2010 Supp.). Claims founded on state law, however, exceed the scope of jurisdiction of the United States Court of Federal Claims. See Souders v. South Carolina Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed.Cir.2007) (“Claims founded on state law are also outside the scope of the limited jurisdiction of the [United States] Court of Federal Claims.”).

For these reasons, the court must dismiss the claim alleged under the Maryland Wage Payment and Collection Law requested by the April 29, 2015 Complaint.

iii. Whether The April 29, 2015 Complaint’s Claim For Unpaid Sick Leave And Unreimbursed Travel Are Barred By The Statute Of Limitations.

The April 29, 2015 Complaint alleges that Plaintiff is entitled to unpaid sick leave, as of February 28, 2003, and unreim-bursed travel expenses that occurred on February 3, 2003. Compl. at 16-17. Section 2501 of the Tucker Act provides that “[e]very claim of 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. The United States Supreme Court has interpreted this statute as setting “jurisdictional limits” and is not subject to equitable tolling. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Accordingly, the court cannot adjudicate claims that accrued outside the limitations period, “even if jurisdiction were other wise proper.” Wilder v. United States, 277 Fed.Appx. 999, 1000 (Fed.Cir.2008) (affirming dismissal of payment as time-barred under Section 2501 where the plaintiffs claim accrued ten years before the Complaint was filed.). It is well-established that a claim “accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix the Government’s alleged liability.’” Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc)). The claims for unpaid sick leave and unreim-bursed travel expenses in this case accrued in February 2003, when the events occurred that fixed the Government’s alleged liability.⁷ Compl. at 1, 9,16,17. The Complaint in this case was not filed until April 2015, over twelve years after the claims for unpaid sick leave and unreimbursed travel expenses accrued.

For these reasons, the court must dismiss Plaintiffs claims for unpaid sick leave and unpaid travel expenses alleged in the April 29, 2015 Complaint as barred by the six-year statute of limitations.⁸

iv. Whether The Court Has Jurisdiction To Award Lost Investment Income.

The April 29, 2015 Complaint seeks an award of lost investment income on his unpaid vacation time, sick leave, and un-reimbursed travel expenses. Compl. at 17-18. Plaintiff argues that the court has jurisdiction to make such an award, pursuant to 28 U.S.C. § 2674, because these are not punitive damages. Compl. at 17-18. However, consequential damages, damages for the loss of future profits, or “lost investment income” are not recoverable, because they are too remote or speculative to qualify as compensa-ble damages. See Solar Turbines, Inc. v. United States, 16 Cl.Ct. 304, 316 (1989) (“[Recoverable damages] ... do not include damages that remotely or consequently re-suited from the breach, ie., damages that were too remote or speculative to qualify as compensable damages.”); see also Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741, 744 (1980)) (observing that future profits rely on speculative and remote factors and cannot be rewarded).

For these reasons, the court must dismiss the claims for lost investment income alleged in the April 29, 2015 Complaint.

IV. CONCLUSION.

For these reasons, the Government’s June 29, 2015, Motion to Dismiss is granted. See RCFC 12(b)(1). The Clerk of Court is directed to dismiss the April 29, 2015 Complaint.

IT IS SO ORDERED.

COURT EXHIBIT A

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COURT EXHIBIT B

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COURT EXHIBIT C

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Footnotes

1

. The relevant facts were derived from Plaintiff’s April 29, 2015 Complaint ("Compl”) and exhib its attached thereto ("Compl. Exs, 1-28").

2

, Some portions of the April 29, 2015 Complaint have paragraph numbers; others do not. For those portions not within an enumerated paragraph, the court refers to the page number.

3

. These sources include state and federal taxes, as shown on Navy Audit Summaries from 2003 through 2006. Compl. Ex. 4, at 2-7.

4

. Section 2672 of the Federal Tort Claims Act provides:

The head of each Federal agency or his desig-nee .,. may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for ... loss of property ... under circumstances where the United States, if a private person, would be liable to claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 2672.

5

. Maryland Wage Payment and Collection Law, in relevant part, provides:

Notwithstanding any remedy available under § 3-507 of this subtitle, if an employer fails to pay an employee in accordance with § 3-502 or § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.

Md.Code Ann., Lab. & Empl. § 3-507.2(a) (2008 Repl. Vol., 2010 Supp.).

6

. On May 28, 2004, Plaintiff filed a Complaint in the County Court of the Twentieth Judicial Circuit In and For Lee County, Florida. Court Exhibit A. On July 6, 2004, that case was removed to the United States District Court for the Middle District of Florida. Court Exhibit B. On January 19, 2005, Plaintiff filed a Motion To Dismiss Without Prejudice. Court Exhibit C.

7

. The April 29, 2015 Complaint alleges that Plaintiff did not file a claim for unpaid sick leave at the agency level or at OPM, as follows:

Since Plaintiff • was unable to obtain vacation pay owed to him, Plaintiff did not bother to pursue a claim for sick leave owed to him, until now, Plaintiff felt adding the sick leave issue to his claim was pointless, since Employer/DFAS/DON/OPM could not get his vacation claim straight, Plaintiff seemed it would only serve to further confuse them and accomplish nothing.

Compl. at 9.

8

. Even if Plaintiff were entitled to unpaid sick leave and unreimbursed travel expenses as of the date of his retirement, on July 3, 2006, those claims would still be barred by the six-year statute of limitations, because he filed the April 29, 2015 Complaint almost nine years after Plaintiff's retirement.