Flowers v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-5052

MARSHALL KENNETH FLOWERS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Marshall K. Flowers, of Jacksonville, Florida, pro se.

Meredyth D. Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for defendant-
appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General,
Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Margaret M. Sweeney.
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-5052

MARSHALL KENNETH FLOWERS,

Plaintiff-Appellant,
v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 05-CV-1163, Judge Margaret
M. Sweeney.
__________________________

DECIDED: November 5, 2008
__________________________

Before RADER, LINN, and MOORE, Circuit Judges.

PER CURIAM.

Marshall K. Flowers (“Flowers”) appeals from final orders of the United States

Court of Federal Claims denying his motion for discovery and granting the government’s

motions pursuant to Rules 56 (summary judgment), 52.1 (judgment on the

administrative record), 12(b)(1) (lack of subject matter jurisdiction), and 12(b)(6) (failure

to state a claim) of the Rules of the United States Court of Federal Claims (“RCFC”).

Flowers v. United States, 75 Fed. Cl. 615 (2007); Flowers v. United States, 80 Fed. Cl.

201 (2008). Flowers also appeals from the denial of his RCFC 40.1 motion to reassign

the case to a different judge. Flowers v. United States, No. 05-1163C (Fed. Cl. Jan. 29,

2008) (“Recusal Opinion”). For the following reasons, we affirm.
 BACKGROUND

On October 31, 2005, Flowers filed this action in the Court of Federal Claims. In

an amended complaint dated June 27, 2006, Flowers sought relief on the following

counts: (1) coercion into accepting nonjudicial punishment (“NJP”); (2) intimidation and

violation of Army regulations; (3) violation of Fifth Amendment due process and liberty

interests; (4) violation of Fifth Amendment rights arising from the Army’s alleged seizure

of savings bonds; (5) violation of a contractual agreement by the United States

Department of Treasury (“Treasury Department”) regarding the savings bonds; and (6)

breach of contract for damage to household goods. In an order dated March 1, 2007,

the Court of Federal Claims granted the government’s motion for summary judgment on

Counts 5 and 6 of the amended complaint and denied Flowers’s motion for discovery.

Flowers, 75 Fed. Cl. at 636. The remaining counts were dismissed on January 18,

2008. Flowers, 80 Fed. Cl. at 227. In particular, the Court of Federal Claims found

Counts 1-3 to contain interwoven tort, constitutional, and statutory military pay claims,

and disposed those claims as follows: judgment pursuant to RCFC 52.1 on all military

pay claims; dismissal pursuant to RCFC 12(b)(1) of claims sounding in tort, alleging

Fourth Amendment and Fifth Amendment due process and double jeopardy clause

violations, or seeking removal of the Army’s bar to reenlistment; and dismissal pursuant

to RCFC 12(b)(6) of claims alleging ineffective assistance of counsel, requesting

correction of military records, or asserting a Fifth Amendment liberty interest. Id.

Count 4 was dismissed pursuant to RCFC 12(b)(1). Id. On January 29, 2008, the Court

of Federal Claims denied Flowers’s RCFC 40.1 motion to reassign the case to a

different judge. Recusal Opinion, slip op. at 7.

2008-5052 2
 Flowers appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(3).

DISCUSSION

A. Summary Judgment

We review a grant of summary judgment by the Court of Federal Claims de novo.

Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir. 2008). Summary judgment is

appropriate where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. RCFC 56(c).

1. Savings Bond Claim

The Court of Federal Claims granted the government’s motion for summary

judgment on Flowers’s savings bond claim (Count 5), holding that Flowers lacked

standing because he is not the registered owner of the savings bonds and that a prior

federal suit filed by Flowers precludes him from relitigating this same issue. Flowers, 75

Fed. Cl. at 632. In the prior federal suit, the U.S. District Court for the District of Hawaii

found that savings bonds valued less than $10,000 were registered not to Flowers but

to his adult daughters, and that this registration confers ownership to them, not him.

Flowers v. Sec’y of the U.S. Dep’t of Treasury, No. CV-03-16 (D. Haw. Jun. 13, 2003),

aff’d, 132 Fed. Appx. 728 (9th Cir. 2005). When Flowers later brought the instant suit to

recover savings bonds valued over $10,000, the Court of Federal Claims similarly found

that these bonds were registered in the names of his daughters and that the Treasury

Department had already issued checks to the daughters for their respective bonds.

Flowers, 75 Fed. Cl. at 630. Because 31 C.F.R. § 353.5(a) is a federal regulation that

explicitly provides that “registration is conclusive of ownership,” the Court of Federal

2008-5052 3
Claims held that Flowers cannot rely on state law to establish ownership.

Consequently, the Court of Federal Claims rejected Flowers’s argument that a prior

state court’s default judgment against his daughters confers ownership to him. Indeed,

at the time Flowers sued his daughters in state court to establish ownership, his

complaint failed to disclose that the Treasury Department had already made payment to

the daughters on their respective bonds. Under principles of federal supremacy, the

Court of Federal Claims held that 31 C.F.R. § 353.5(a), and not the state court’s default

judgment, determines the bonds’ ownership. Flowers, 75 Fed. Cl. at 631.

On appeal, Flowers attempts to avoid the effect of federal preemption. He

primarily relies on Bodek v. Department of Treasury, 532 F.2d 277 (2d Cir. 1976), for

the proposition that ownership disputes between private parties are to be governed by

state law rather than federal law. In that case, decided prior to the promulgation of 31

C.F.R. § 353 (effective January 1, 1980), the Second Circuit held that an ownership

dispute between a son and his parents over U.S. savings bonds did not fall within the

category of “loss, theft, destruction, mutilation, or defacement” of the applicable statute

under which the Treasury Department was authorized to grant relief. Bodek, 532 F.2d

at 280 (quoting 31 U.S.C. § 738(a)). Rather, the Second Circuit found that the parties’

quarrel, at that time, was a matter to be settled among themselves, either privately or in

a state court. The implementation of 31 C.F.R. § 353.5(a) in 1980 changed that. The

federal regulation now provides, with limited exception, that “registration is conclusive of

ownership.” Id. The only listed exception is for correction of registration errors, which

are not at issue here. Id. § 353.49. Because there is no dispute that the savings bonds

are registered to Flowers’s adult daughters, and because 31 C.F.R. § 353.5(a) controls

2008-5052 4
the question of ownership, the Court of Federal Claims correctly found that the state

default judgment was inapplicable. See also Flowers v. Sec’y of the U.S. Dep’t of the

Treasury, 132 Fed. Appx. 728, 729 (9th Cir. 2005) (“Flowers is not the registered owner

and cannot, under principles of federal supremacy, rely on a contrary state court

judgment to establish ownership.”); Hardymon v. Miller, 718 F. Supp. 723, 725 (S.D.

Ind. 1989) (holding that a contrary state court judgment cannot turn solely-owned

savings bonds into probate assets in violation of 31 C.F.R. § 353.5(a)).

2. Shipment of Household Goods

The Court of Federal Claims granted the government’s motion for summary

judgment on Count 6, in which Flowers seeks to recover the value of his household

goods that were lost or damaged when the Army delivered those goods from Hawaii to

Australia. The trial court found that Flowers had already received $4,425 from the Army

to replace the lost or damaged goods, and that a finality provision of the Military

Personnel and Civilian Employees’ Claims Act (“MPCECA”) precludes judicial review of

the Army’s disallowance of any additional settlement. Flowers, 75 Fed. Cl. at 635

(noting that the MPCECA provides that settlement of a claim by the military is “final and

conclusive”) (quoting 31 U.S.C. § 3721(k)). In addition, the trial court noted that the

MPCECA is not a money-mandating statute; thus, the MPCECA does not create a

substantive right that would allow the Court of Federal Claims to exercise jurisdiction

under the Tucker Act. Flowers, 75 Fed. Cl. at 635 (stating that the Secretary’s authority

under the MPCECA is discretionary because he “may,” but need not, settle claims)

(quoting 31 U.S.C. § 3721(b)(1)).

2008-5052 5
 On appeal, Flowers does not address these major defects in his claim. Nor does

he dispute the fact that he received a $4,425 settlement for his household goods. That

settlement is “final and conclusive” under 31 U.S.C. § 3721(k) and is not subject to

judicial review. Shull v. United States, 228 Ct. Cl. 750 (1981) (holding that the term

“final and conclusive” precludes judicial review of Army claims decisions). We therefore

affirm the grant of summary judgment.

B. Discovery

Discovery orders in the Court of Federal Claims are reviewed for abuse of

discretion. Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1356 (Fed.

Cir. 2002). The trial court limited the scope of discovery to rebutting the government’s

then-pending motion for summary judgment on Counts 5 and 6. Flowers sought to

depose various military officials, Treasury Department officials, and his two daughters.

To support his discovery request, Flowers stated that he “intends to show that U.S.

Saving [sic] Bonds were purchased by him [and] maintained in his possession until

removed by a government person.” Flowers, 75 Fed. Cl. at 629 (quoting Pl.’s Mot. 14).

The trial court denied Flowers’s motion for discovery, finding that no part of the motion

was directed to the dispositive issue of ownership and standing. Like his discovery

motion, Flowers’s appellate brief is directed primarily to the government’s alleged

seizure of his savings bonds, not the registered ownership of those bonds. Because

ownership depends on the bonds’ registration, not their purchase or possession, 31

C.F.R. § 353.5(a), the trial court did not abuse its discretion in denying Flowers’s

request to discover information wholly unrelated to the question of registration.

C. Judgment on the Administrative Record

2008-5052 6
 We review the Court of Federal Claims’s factual determinations in a judgment on

the administrative record for clear error and the court’s legal conclusions without

deference. RCFC 52(a); Lewis v. United States, 458 F.3d 1372, 1376 (Fed. Cir. 2006).

The trial court granted the government’s RCFC 52.1 motion on Flowers’s Military Pay

Act claim, under which Flowers alleges that he was coerced into accepting NJP and

seeks pay that he would have received had he not involuntarily retired.

The trial court found no merit in this claim, and neither do we. Flowers applied

for and was granted voluntary retirement effective January 1, 2000, although that date

was ultimately extended to January 31, 2000. He was compensated through January

31, 2000, his last day of active duty. Flowers now seeks pay exclusively for a period of

time beyond that date. Because Flowers was no longer a service member after January

31, 2000, he is not entitled to relief under the Military Pay Act, 37 U.S.C. § 204. See

James v. Caldera, 159 F.3d 573, 581 (Fed. Cir. 1998) (“Once James’ term of enlistment

ended, he no longer was entitled to pay under 37 U.S.C. § 204, because he was no

longer a service member.”).

The trial court also concluded that Flowers failed to prove that his retirement was

involuntary. We agree. A decision to retire is presumed voluntary. Carmichael v.

United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002). The presumption can be rebutted

if Flowers demonstrates that: (1) he involuntarily accepted the terms of the government;

(2) circumstances permitted no other alternative; and (3) those circumstances were the

result of the government’s coercive acts. Id. Contrary to Flowers’s unsubstantiated

allegations of coercion, the trial court made detailed findings of the circumstances of his

decision to accept NJP, all tending to show that the decision was voluntary. Flowers, 80

2008-5052 7
Fed. Cl. at 219 (noting that Flowers was furnished with alternatives, consulted with

counsel, and participated in setting favorable terms of his retirement). Flowers faced

the prospect of a court-martial on numerous counts of larceny and a dishonorable

discharge; he instead chose to accept NJP, an honorable discharge, and retirement at

full rank. Id. at 221. The most that can be said is that Flowers faced a choice between

two unpleasant alternatives. But, as we have said, “a choice is not involuntary simply

because an employee is faced with an inherently unpleasant situation or his choice is

limited to two unpleasant alternatives.” Terban v. Dep’t of Energy, 216 F.3d 1021, 1026

(Fed. Cir. 2000).

D. Dismissal

“We review the Court of Federal Claims’s decision to dismiss for lack of

jurisdiction and for failure to state a claim without deference.” Gallo v. United States,

529 F.3d 1345, 1348 (Fed. Cir. 2008).

1. Correction of Military Record

The trial court dismissed pursuant to RCFC 12(b)(6) Flowers’s request to correct

his military records, holding that it could not grant equitable relief under 28 U.S.C.

§ 1491(a)(2) because no money damages were owed for back pay. Flowers, 80 Fed.

Cl. at 222 (“The court . . . may correct applicable records only ‘as an incident of and

collateral to’ a judgment against the United States for money damages.”) (quoting 28

U.S.C. § 1491(a)(2)). Because we have affirmed, supra, the trial court’s judgment on

the administrative record of Flowers’s military pay claim, to which equitable relief might

conceivably have been tied, we likewise affirm its holding that the absence of money

damages in this case divests the court of its ability to grant equitable relief. See James

2008-5052 8
v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (“Stated another way, the Court of

Federal Claims has no power ‘to grant affirmative non-monetary relief unless it is tied

and subordinate to a money judgment.’”) (quoting Austin v. United States, 206 Ct. Cl.

719, 723 (1975)).

2. Tort Claims

The trial court dismissed pursuant to RCFC 12(b)(1) all claims sounding in tort.

Those claims included allegations that the Army engaged in various criminal and

tortious acts, as well as racial discrimination. The court found that it lacked jurisdiction

to hear such claims. Accepting as true all of Flowers’s allegations of fact, we agree with

the Court of Federal Claims that those claims fall outside of the court’s limited

jurisdiction. See Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343

(Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the Court of

Federal Claims jurisdiction claims sounding in tort.”); Joshua v. United States, 17 F.3d

378, 379 (Fed. Cir. 1994) (stating that the Court of Federal Claims “has no jurisdiction to

adjudicate any claims whatsoever under the federal criminal code”). To whatever extent

Flowers may be asserting his discrimination claims under Title VII of the Civil Rights

Act, the Court of Federal Claims similarly lacks jurisdiction over them. 28 U.S.C.

§ 1343(a) (vesting original jurisdiction exclusively in “district courts”).

3. Fourth and Fifth Amendment Claims

Flowers has alleged Fourth Amendment violations, as well as Fifth Amendment

Takings, Due Process, and Double Jeopardy Clause violations. Those claims were

dismissed pursuant to RCFC 12(b)(1). Flowers also asserted a Fifth Amendment liberty

2008-5052 9
interest in his military employment. That claim was dismissed pursuant to

RCFC 12(b)(6).

We see no error in the trial court’s dismissal of these claims. Jurisdiction in the

Court of Federal Claims is limited under the Tucker Act to those claims based on “a

separate money-mandating constitutional provision, statute, or regulation, the violation

of which supports a claim for damages against the United States.” James, 159 F.3d at

580. The Fourth Amendment does not mandate the payment of money; therefore, the

Court of Federal Claims lacks jurisdiction over any alleged search and seizure violation.

Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (“Because monetary

damages are not available for a Fourth Amendment violation, the Court of Federal

Claims does not have jurisdiction over . . . such a violation.”). The same is true of Fifth

Amendment Due Process and Double Jeopardy Clause violations. James, 159 F.3d at

581 (“[T]he Court of Federal Claims lacks jurisdiction over [due process and double

jeopardy] claims because neither of the two clauses is a money-mandating provision.”).

Flowers’s appellate brief addresses only the takings claim. He contends that he

should have been given leave to allege additional facts to establish the necessary

cause of action. This takings claim (Count 4), however, is merely a Fifth Amendment

variant of his breach of contract claim (Count 5), on which he lost for failure to establish

ownership of the savings bonds. This lack of ownership is similarly fatal to Flowers’s

takings claim. See Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed. Cir.

2003) (“For any Fifth Amendment takings claim, the complaining party must show it

owned a distinct property interest at the time it was allegedly taken, even for regulatory

takings.”); Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001) (“It is axiomatic

2008-5052 10
that only persons with a valid property interest at the time of the taking are entitled to

compensation.”). As previously mentioned, it is undisputed that the savings bonds were

registered in the names of Flowers’s adult daughters at the time of the alleged taking.

Because “registration is conclusive of ownership” under 31 C.F.R. § 353.5(a), we agree

that Flowers’s takings claim should be dismissed.

Nor did the Court of Federal Claims err in declining to transfer the takings claim

to a district court pursuant to 28 U.S.C. § 1631, which authorizes transfer “in the interest

of justice” only to a court “in which the action . . . could have been brought at the time it

was filed.” The issue of ownership has been repeatedly litigated. The U.S. District

Court for the District of Hawaii found that Flowers has no ownership interest in the

savings bonds valued less than $10,000. Flowers v. Sec’y of the U.S. Dep’t of the

Treasury, No. CV-03-16 (D. Haw. Jun. 13, 2003), aff’d, 132 Fed. Appx. 728 (9th Cir.

2005). The Court of Federal Claims reached the same conclusion for bonds exceeding

$10,000 in value. We therefore reject the argument that this claim should now be heard

again in a district court.

E. Recusal

The trial judge denied Flowers’s RCFC 40.1 motion to reassign the case to a

different judge and also declined recusal pursuant to 28 U.S.C. § 455. Recusal

Opinion, slip op. at 1. Flowers’s unsubstantiated allegations of bias and prejudice

amount to nothing more than mere displeasure with the court’s rulings dismissing his

meritless claims. As the Supreme Court has stated, however, “judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United

States, 510 U.S. 540, 555 (1994). Because Flowers points to no “extrajudicial source”

2008-5052 11
of the alleged bias or prejudice, he must prove that the judicial opinions or remarks

“display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Id. No such inference can be drawn here. Nothing in the record suggests

that Judge Sweeney’s conduct of the proceedings was anything other than evenhanded

and professional. Mindful of the court’s duty to hold pro se plaintiffs to “less stringent

standards than litigants represented by counsel,” Flowers, 80 Fed. Cl. at 209 (citing

Haines v. Kerner, 404 U.S. 519, 520 (1972)), Judge Sweeney excused Flowers’s failure

to address his takings claim in opposition to the government’s motion to dismiss,

Flowers, 80 Fed. Cl. at 225 n.14, and entertained a Fourth Amendment argument raised

for the first time in his reply brief, id. at 214 n.11. These charitable acts certainly do not

evidence a deep-seated favoritism for the government or antagonism against Flowers.

Indeed, on several occasions, Judge Sweeney went out of her way to direct both the

government and the Clerk of the Court to provide Flowers with courtesy copies of all

court filings, even as Flowers submitted over ten notices changing his address during

the course of the litigation. Recusal Opinion, slip op. at 3 n.5. Though Flowers argues

prejudice due to some “missing administrative records,” Judge Sweeney granted

Flowers leave to supplement the record with precisely those documents he now says

are missing. Id. at 2 n.4. Rather than evidencing bias or prejudice, the record shows

that the trial court gave Flowers a fair opportunity to present his case.

CONCLUSION

The judgment of the Court of Federal Claims is affirmed in all respects.

2008-5052 12