Jordan v. United States

• Decision Date: 15 March 2022
• Docket Number: 20-1690C
• Court: U.S. Claims Court
• Parties: TONY JORDAN, Plaintiff, v. THE UNITED STATES, Defendant.

TONY JORDAN, Plaintiff, v. THE UNITED STATES, Defendant.

No. 20-1690C

United States Court of Federal Claims

March 15, 2022

Tony Jordan, pro se, Valrico, FL.

Michael D. Austin, United States Department of Justice, Civil Division, Washington, D.C., for Defendant. With him on the briefs were Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey, Jr., Acting Director, and Allison Kidd-Miller, Assistant Director Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Juliana B. Pierce, Defense Finance and Accounting Service General Counsel Office

OPINION AND ORDER

Matthew H. Solomson, Judge

On November 20, 2020, Plaintiff, Tony Jordan, a retired Army reserve officer, proceeding pro se, filed his original complaint against Defendant, the United States. ECF No. 1 (“Compl.”). The government moved to dismiss Mr. Jordan's complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). ECF No. 11 (“Def. Mot.”). The Court permitted Mr. Jordan to file an amended complaint, ECF Nos. 13, 14 (“Am. Compl.”), which the government also moved to dismiss pursuant to RCFC 12(b)(1), ECF No. 17 (“Def. Mot. Dismiss Am. Compl.”). The parties filed timely response briefs. ECF Nos. 18 (“Pl. Resp.”), 19 (“Def. Reply”). On September 20, 2021, Mr. Jordan filed a motion for leave to respond to the government's reply, ECF No. 20, which this Court granted, ECF Nos. 21, 22 (“Pl. Reply”).

The singular focus of Mr. Jordan's several "causes of action" is a debt of $88, 578.33 which Mr. Jordan claims the Defense Finance and Accounting Authority ("DFAS") unlawfully withheld from his military pay over a period of five years. Compl. at 2; Am. Compl. ¶¶ 54-58.^[1] The government contends that this Court lacks jurisdiction to decide Mr. Jordan's claim because he failed to file his complaint within the six-year statute of limitations. See 28 U.S.C. § 2501; Def. Mot. at 1; Def. Mot. Dismiss Am. Compl. at 2.

For the reasons explained below, the Court agrees with the government and holds that Mr. Jordan's claim is untimely pursuant to the applicable statute of limitations, see 28 U.S.C. § 2501. Accordingly, the Court GRANTS the government's motion to dismiss Mr. Jordan's amended complaint for lack of jurisdiction.

I. JURISDICTION AND STANDARD OF REVIEW

Courts hold the pleadings of pro se plaintiffs to a less rigorous standard than those of represented parties. See Roche v. U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987) ("Pro se petitioners are not expected to frame issues with the precision of a common law pleading."); Perry v. United States, 149 Fed.Cl. 1, 9-10 (2020) ("Courts treat a pro se plaintiff's pleadings with less scrutiny and give them a more liberal construction than pleadings prepared by counsel." (citing Castro v. United States, 540 U.S. 375, 381 (2003))), aff'd, 2021 WL 2935075 (Fed. Cir. July 13, 2021). Accordingly, the Court construes all of Mr. Jordan's legal arguments in the most generous, plausible manner. Moss v. United States, 101 Fed.Cl. 611, 615 (2011).

Pro se plaintiffs cannot, however, evade this Court's jurisdictional requirements. See Ex parte McCardle, 74 U.S. 506, 514 (1868) ("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."); Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (noting that "leniency with respect to mere formalities should be extended to a pro se party," but "a court may not similarly take a liberal view of [a] jurisdictional requirement and set a different rule for pro se litigants only"); Hale v. United States, 143 Fed.Cl. 180, 184 (2019) ("[E]ven pro se plaintiffs must persuade the court that jurisdictional requirements have been met."); RCFC 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

Generally, "[t]he jurisdiction of the Court of Federal Claims is defined by the Tucker Act, which gives the court authority to render judgment on certain monetary claims against the United States." RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009). The Tucker Act, 28 U.S.C. § 1491(a)(1), provides this Court with 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); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004) (noting that the Tucker Act permits "actions pursuant to contracts with the United States, actions to recover illegal exactions of money by the United States, and actions brought pursuant to money-mandating statutes, regulations, executive orders, or constitutional provisions" to be brought in the Court of Federal Claims). The Tucker Act, however, "does not create a substantive cause of action." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). Moreover, "[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act." United States v. Mitchell, 463 U.S. 206, 216 (1983). With respect to "money-mandating" claims, the plaintiff must identify a law that "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Id. at 217 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). Illegal exaction claims allege that money was "improperly paid, exacted, or taken from the claimant," Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967), and do not need to identify a money-mandating statute. Boeing Co. v. United States, 968 F.3d 1371, 1384 (Fed. Cir. 2020); Perry, 149 Fed.Cl. at 32.

The Court of Federal Claims may exercise jurisdiction over a claim against the United States only if the plaintiff files suit within six years of when the claim accrues. 28 U.S.C. § 2501 ("Every 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."). The Supreme Court has "long interpreted" this Court's limitations statute as "absolute" and "jurisdictional." John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008). Consequently, the statute of limitations is not subject to equitable tolling. Id. at 133-39 (discussing the history of the Court of Federal Claims' statute of limitations and concluding that it does not permit equitable tolling); see also Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) ("[E]quitable tolling . . . is foreclosed by John R. Sand & Gravel, wherein the Court held that the Tucker Act's statute of limitations is in the 'more absolute' category that cannot be waived or extended by equitable considerations." (quoting John R. Sand & Gravel Co., 552 U.S. at 133-34)).

Plaintiffs "bear[] the burden of establishing the court's jurisdiction over [their] claims by a preponderance of the evidence." Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). This includes establishing that the complaint was timely filed pursuant to the statute of limitations. Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1376-77 (Fed. Cir. 1998). To determine jurisdiction, this Court generally "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, 659 F.3d at 1163. The Court is not limited to the pleadings, however, when a motion to dismiss disputes jurisdictional facts. Freeman v. United States, 875 F.3d 623, 627 (Fed. Cir. 2017) ("When . . . a motion to dismiss 'challenges the truth of jurisdictional facts,' the Court of Federal Claims 'may consider relevant evidence in order to resolve the factual dispute.'" (quoting Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014))). This Court "will rely on these matters [only] to the extent that they allow the court to determine whether it has jurisdiction over this case." Lechliter v. United States, 70 Fed.Cl. 536, 543 (2006).

II. FACTUAL AND PROCEDURAL BACKGROUND

The Court begins with the facts as alleged in Mr. Jordan's amended complaint and related filings.^[2] Mr. Jordan served in the United States Army Reserves "in various capacities" from early 1981 to late 2014. Am. Compl. ¶ 1. During that period, from October 2, 2009, through October 27, 2014, he held the rank of lieutenant colonel. Compl. at 1.

Between 2003 and 2008, Mr. Jordan served approximately four years and six months of active duty at MacDill Air Force Base in Florida. Am. Compl. ¶ 15. During this active-duty tour Mr. Jordan was the subject of an investigation regarding a "possible lodging fraud concerning plaintiff's travel vouchers submitted incidental to his continuous orders for the period May 1, 2004 through April 29, 2008." Am. Compl. ¶ 16. Notwithstanding this allegation, Mr. Jordan avers that the investigation concluded he was underpaid regarding his housing for this time period. Am. Compl. ¶¶ 22, 31. In February 2009, DFAS established a debt of $106, 051.21 against Mr. Jordan "for the period May 1, 2004 through April 29, 2008." Am. Compl. ¶¶ 26-27. On July 10, 2009, "DFAS issued two debt notices" to Mr. Jordan "in the amount of $106, 051.21." Am. Compl. ¶ 27. On October 7, 2009, Mr. Jordan "received a Leave and Earnings Statement . . . revealing that a collection action was initiated in his...