SUSAN G. BRADEN, Judge.
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.
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 checks 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.
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 a refund of $1,386.51 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. 3, 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. 3, at 5.
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. § 2672
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 ("Pl. Resp."). On February 16, 2016, the Government filed a Reply ("Gov't Reply").
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 (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. 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.").
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 (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 Cl. Ct. 456, 468 (1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff's complaint, the court "does not excuse [a pro se complaint's] failures." Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).
The court is cognizant of its obligation liberally to construe a pro se plaintiff's pleadings. See Estelle v. Gamble, 429 U.S. 97, 106 (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).
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 Plaintiff's claims for unpaid sick leave and unreimbursed 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.
Plaintiff responds that he did not intend to file this case relying on Maryland law, but in a prior case the Government stated the proper venue was the United States Court of Federal Claims. Pl. Resp. at 1-2 (citing Crane v. Naval Air Systems Command, 2:04-CV-363-FTM-29SPC (D. Fl. 2005).
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 (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) ("[R]elief 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.
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.
The April 29, 2015 Complaint alleges that Plaintiff is entitled to unpaid sick leave, as of February 28, 2003, and unreimbursed 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 (2008). Accordingly, the court cannot adjudicate claims that accrued outside the limitations period, "even if jurisdiction were otherwise proper." Wilder v. United States, 277 F.App'x 999, 1000 (Fed. Cir. 2008) (affirming dismissal of payment as time-barred under Section 2501 where the plaintiff's 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 unreimbursed travel expenses in this case accrued in February 2003, when the events occurred that fixed the Government's alleged liability.
For these reasons, the court must dismiss Plaintiff's 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.
The April 29, 2015 Complaint seeks an award of lost investment income on his unpaid vacation time, sick leave, and unreimbursed 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 compensable damages. See Solar Turbines, Inc. v. United States, 16 Cl. Ct. 304, 316 (1989) ("[Recoverable damages] . . . do not include damages that remotely or consequently resulted from the breach, i.e., 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.
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.
FORM 291-3
You are hereby notified that the plaintiff has made a claim and is requesting judgment against you in the sum of
The Court will hold a Pre-trial Conference on this claim on the
PLAINTIFF AND DEFENDANT MUST APPEAR. You should bring any receipts or other written documents with you for this pretrial.
If you desire to file any counterclaim or set-off plaintiff's said claim, it must be filed with the Clerk of Courts by you or by your attorney in writing at least five (5) days prior to the above date set for pretrial of said clam.
You may come with or without an attorney. Each party represented by Counsel shall be ___ Pre-trial Conference by the attorney who expects to conduct the actual trial of the cause. And the attorney must ___ the authorization to settle or his client must be present.
Plaintiff hereby declares that defendant owes plaintiff the sum of $
I accepted a return to work agreement which included specific stipulations. I was forced to report for work in February 2003 prior to my employer fullfilling any agreed upon stipulations. Per our agreement, all ergonomic accommodations were to be in place when I reported. None of the ergonomic accommodations were in place and would not be for an indeterminent amount of time. The Department of Labor, Office of Workers Compensation agreed that my employer was wrong and reinstated my full benefits ___ to the date I left. I am requesting the court award me with reimbursement for ___ and per diem living allowance calculated at the 2003 Federal rates.
Wherefore, plaintiff demands judgment for damages against defendant, plus court costs.
"If you a person will a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Deputy Court Administrator whose office is located at the Lee County justice Center, 1700 Monroe Street, Fort Myers, El 33901, and whose telephone number is (239) 335-2299 within two working days of your receipt of this Statement of Claim; if you are hearing or voice impaired, call 1-800-955-8771."
Dear Mr. Medina,
I received your letter on 10/16/02.
I am forced to accept the offer of 9/4/01 to return to work with the ergonomic recommendations outlined in the offer and will perform the job, as I always have, to the best of my ability. I will report on the date NAVAIR tells me the ergonomic adjustments will be in place.
You are forcing me to return to work contrary to the findings and actions of every qualified physician I have seen as well as numerous personnel from the Naval Air Systems Command (NAVAIR) and Washington Office of Worker's Compensation (WOWCP). You have obviously disregarded everything in my file that indicates I should not work in an office environment and arbitrarily decided that I can and should return to work based on flawed evaluations for ergonomic adjustment by other than physicians qualified to render a valid opinion on my condition. The recommendations in the evaluation were properly discounted by NAVAIR and WOWCP based upon valid logical and technical reasons as to why they would not work for my specific work requirements and condition. There will be a high cost associated with putting the ergonomic adjustments into place, disruption, after a three-year absence, to the NAVAIR office I work in, and a probable exacerbation of my condition.
I was injured on 2/12/00, had successful neck surgery on 3/29/00 that required the reconstruction of five of seven neck vertebrae, and have been unable to work since the accident due to residual permanent spinal cord damage from the accident.
Due to the inexplicable foot-dragging of WOWCP and thereby the extreme uncertainty of our income, my wife and I decided it was in our best interest for her to return to Federal service after a twenty-year absence. My wife accepted a position in December 2001 with the U.S. Army Corps of Engineers (USACE) in Fort Myers, Florida and in late January, 2002 we were relocated to Fort Myers, Florida by the USACE. I will need sufficient time before my notice to report to arrange for living accommodations in the Patuxent River Naval Air Station area. Please notify me as soon as possible of what Worker's Compensation will contribute, if anything, to assist me in relocating my family and/or to provide temporary housing during a trial period to see if I can in fact work without worsening my condition or endangering my health. Also, will Worker's Compensation continue to cover chiropractic treatments for my chronic subluxation problem while I work?
Since it appears you did not bother to read my response of September 30, 2002, be sure you forward it to my caseworker as it includes important information concerning reimbursement for my medical expenses, which I will now need as soon as possible.
MEMORANDUM
From: Head, Accounting Procedures Division
To: Mr. Byran O, Crane, Systems Accountant, GS-0510-13
Subj: RETURN TO DUTY
Ref: (a) Acceptance Letter of 20 Oct 02 From Bryan O. Crane to Jose to Medina, Employment Standards Administration
1. In your letter to Jose R. Medina, Employment Standards Administration, dated 20 October 2002, reference (a), you accepted the offer I made to you, reference (b), to return to your current position in accordance with specified accommodations. Therefore, the date for your return to duty is Monday, 13 January 2003.
2. As stated in reference (b), you will return to your current position as a Systems Accountant GS-0510-13 working a six-hour day and your workstation will be modified prior to your reporting to duty. As outlined in reference (b), the modifications to your workstation will include:
3. Please let me know if you have any questions. My phone number is (301) 757-7736. If you have any questions concerning workers compensation, you may contact Mary Vaughn at (301) 342-6868. Also, consideration will be given to extending your return to duty date if you submit a written request to me within 14 days from your receipt of this memorandum stating your reasons for desiring an extension. Otherwise, you are expected to report to work on Monday, 13 January 2003 as noted in paragraph (1) above.
Dear Mr. Crane:
I am writing in response to your compensation benefits for the period of February 7, 2003, to present. You were re-employed as a part-time Modified Systems Accountant working six hours per day, conforming to the restrictions placed on you by Dr. Weisher, effective February 3, 2003. Due to your re-employment your monetary compensation was reduced effective February based upon your actual earnings.
You worked until February 7, 2003, at which time you withdrew from the part-time Modified Systems Account position and rescinded your acceptance of their job offer, due to the agency not fulfill their obligation to have the ergonomic equipment, based on restrictions imposed by Dr. Weisher, in place when you arrived.
Due to the ergonomic equipment (higher work table and standing and rotating file cabinet) not being in place when you reported to work, it has been determined that the job offer was not suitable, so your Temporary Total Disability benefits will be reinstated retroactively to February 7, 2003, the date you withdrew and rescinded your acceptance of the part-time Modified Systems Accountant position.
The Naval air Systems Command, Department of the Navy, United States Department of Defense, an agency of the United States of America, by and through the United States Attorney for the Middle District of Florida and the undersigned Assistant United States Attorney, pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, hereby removes this action from the County Court of the Twentieth Judicial Circuit of Florida, in and for Lee Country, Florida, to the United States District Court for the Middle District of Florida, Fort Myers Division. The grounds for this removal are as follows:
1. On or about May 28, 2004, the Plaintiff filed a statement of claim initiating a civil action captioned Bryan O. Crane v. Naval Air Systems Command, Case No. 04-SC-002442, County Court, Twentieth Judicial Circuit, in and for Lee County, Florida.
2. Copies of the summons and statement of claim and all other process, pleadings, orders and papers required by Rule 4.02(b) of the Rules of the United States District Court for the Middle District of Florida, are attached hereto and made a part hereof as composite Exhibit 1.
3. The statement of claim alleges that the Plaintiff is entitled to per diem payments and reimbursement for mileage in connection for his return to work pursuant to an agreement with the Naval Air Systems Command in connection with his claim for handicap related workplace accommodations.
4. Title 28, United States Code, Section 1442(a)(1), permits removal of any civil action commenced in a local court against "[t]he United States or any agency thereof . . . for any act under color of such office." This action is against the Naval Air Systems Command for official actions of the Naval Air Systems command, and is thus removable under section 1442(a)(1). Among the defenses to be asserted by the Naval air System Command will be sovereign immunity, lack of subject matter jurisdiction, and failure to exhaust administrative remedies.
5. This Notice is filed within the time required by 28 U.S.C. §§ 1446(b).
6. A copy of this Notice of Removal has also been filed or caused to be filed this date with the Clerk of the Court of Lee County as required by law.
7. Nothing herein a shall be construed to waive any defense available to the United States, including its agencies, officers or employees. Nothing herein constitutes an admission that this Court has jurisdiction of the subject matter of any claim asserted against the United States, including its agencies, officers or employees. Indeed, the United States, including its agencies, officers and employees hereby expressly reserve all defense to this action, including but not limited to jurisdictional defenses.
I hereby certify that a copy of the foregoing has been provided by First Class U.S. Mail on this 6th day of July, 2004, to the following:
This matter comes before the Court on plaintiff's Motion to Dismiss Without Prejudice (Doc. #31), filed on January 19, 2005. No answer or motion for summary judgment has been filed by any defendants, therefore, plaintiff may dismiss the case without consent.
Accordingly, it is now
1. Pursuant to Fed. R. Civ. P. 41 (a) (1), this action is
2. The Clerk is further
28 U.S.C. § 2672.
Md. Code Ann. Lab. & Empl. § 3-507.2(a) (2008 Repl. Vol., 2010 Supp.)
Compl. at 9.
