Hood v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JULIAN R. HOOD, JR.,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2016-2322
______________________

Appeal from the United States Court of Federal
Claims in Nos. 1:15-cv-01200-MBH and 1:15-cv-01501-
MBH, Judge Marian Blank Horn.
______________________

Decided: November 4, 2016
______________________

JULIAN R. HOOD, JR., Escondido, CA, pro se.

AMANDA TANTUM, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN
F. HOCKEY, JR.
______________________

Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
2 HOOD v. US

PER CURIAM.
Julian R. Hood, Jr. (“Hood”), proceeding pro se, ap-
peals from a final decision of the United States Court of
Federal Claims dismissing his complaint in Case Number
15-1200 and his complaint in Case Number 15-1501
under Rules 12(b)(1) and 12(b)(6) of the Rules of the
United States Court of Federal Claims (“RCFC”). Hood v.
United States, 127 Fed. Cl. 192 (Fed. Cl. 2016). We af-
firm.
I. BACKGROUND
In October 1999, Hood began working as a mail
processing clerk with the United States Postal Service
(“USPS” or “the agency”) in Grand Rapids, Michigan.
Hood, 127 Fed. Cl. at 198. Hood alleges that, while he
was employed with the USPS, “he suffered from numer-
ous medical disabilities, including post-traumatic stress
disorder (PTSD), depression, and anxiety.” Id. According
to Hood, these issues required “occupational accommoda-
tions in the form of time off, hours restrictions, and work-
site preferences.” Id. Ultimately, on August 22, 2003, the
USPS notified Hood that he would be removed from his
position on October 11, 2003, for failure to maintain
regular attendance. Id.
In September 2003, Hood filed an Equal Employment
Opportunity Commission (“EEOC”) complaint alleging
discrimination, denial of Family and Medical Leave Act
(“FMLA”) leave and rights, retaliation, and a hostile work
environment. The agency removed Hood in April 2004.
Id.
Hood entered into a Settlement Agreement with the
USPS in November 2005 that resolved all of his claims
pending before the EEOC. Pursuant to that agreement,
Hood “waived his rights to all claims, including employ-
ment discrimination claims, against the USPS, with the
exception of [his] then-pending claim under the Federal
HOOD v. US 3

Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-
8193 (2012).” Id. In exchange, the agency agreed to pay
Hood compensatory damages and attorney fees, and to
change the entry on his Standard Form 50 (SF-50) Notifi-
cation of Personnel Action in his personnel file from
“removal” to “resignation.” Id.
Between 2014 and 2015, Hood filed several com-
plaints in the United States District Court for the West-
ern District of Michigan stemming from his employment
with the USPS. Id. at 197 n.1 (collecting cases). Relevant
to this appeal, on October 24, 2015, Hood filed Case
Number 1:14-cv-1104, alleging that the USPS discrimi-
nated against him, denied him reasonable accommoda-
tions for his disability, and interfered with his ability to
obtain FMLA coverage. The USPS moved to dismiss
Hood’s complaint for failure to state a claim. The district
court granted the government’s motion, finding, among
other things, that Hood’s claims were barred by his set-
tlement agreement with the agency. Hood v. Brennan,
Case Nos. 1:14-CV-1104, et al., 2015 U.S. Dist. LEXIS
89631 (W.D. Mich. July 10, 2015). Hood timely appealed
that decision to the Sixth Circuit on August 12, 2015
(docketed as Case Number 15-1937), and that appeal
remains pending.
On October 15, 2015, Hood filed a complaint in the
Court of Federal Claims (Case Number 15-1200), alleging
“breach of express contract and implied in fact contract,”
breach of the covenant of good faith and fair dealing,
misrepresentation and fraudulent concealment, and
conspiracy. Hood, 127 Fed. Cl. at 198. 1 According to
Hood, between 2006 and 2008, the USPS breached the
Settlement Agreement on at least three occasions in

1 Hood amended his complaint in Case Number 15-
1200 several times. The allegations discussed herein are
drawn from all of his complaints.
4 HOOD v. US

communications with the Department of Labor when it
stated that Hood’s employment ended as a result of ter-
mination, rather than as a voluntary resignation. Id. at
198-99. Hood also alleged that the USPS terminated him
because he filed an EEOC complaint, in violation of First
Amendment rights, and that he was denied equal protec-
tion and due process. Id. at 199. Hood further alleged
that, between 2001 and 2004, the USPS fraudulently
concealed relevant information pertaining to his qualifica-
tion for protection under the FMLA and misled a FMLA
investigator, resulting in denial of FMLA coverage. Id.
Finally, Hood alleged that the “agency entered into a
conspiracy with the Union and [his] attorney,” such that
he was denied adequate legal representation. Id.
Less than two months later, Hood filed a separate
complaint with the Court of Federal Claims (Case Num-
ber 15-1501) alleging: (1) “regulatory and physical taking
of private property (Job and benefits)”; (2) violations of his
Fifth and Fourteenth Amendment rights; (3) breach of
“Common Law Promissory Estoppel/Quasi contract” for
breach of the collective bargaining agreement (“CBA”);
(4) denial of equal protection and due process of law;
(5) “breach of promise to accommodate under the CBA”;
and (6) “breach of implied covenant of good faith and fair
dealings for failure to provide equal protection in the
workplace.” Compl. at 1, Hood v. United States, No. 15-
cv-1501C (Fed. Cl. Dec. 11, 2015), ECF No. 1. According
to Hood, the USPS concealed facts and made misrepre-
sentations to the EEOC which caused a delay in the
processing of his claim for compensation with the De-
partment of Labor’s Office of Workers’ Compensation
Programs (“OWCP”). Hood, 127 Fed. Cl. at 200.
The government moved to dismiss both of Hood’s
complaints. As to Case Number 15-1200, the government
argued that the Court of Federal Claims lacked jurisdic-
tion to hear his claims, the contract claims were time-
barred under 28 U.S.C. § 2501, and Hood failed to state a
HOOD v. US 5

claim upon which relief may be granted. The government
separately moved to dismiss Hood’s complaint in Case
Number 15-1501, asserting that: (1) his claims were
barred by 28 U.S.C. § 1500, and were otherwise time-
barred, (2) the court lacked jurisdiction to hear certain
claims; and (3) Hood failed to state a claim upon which
relief could be granted.
On May 27, 2016, the Court of Federal Claims issued
a single decision granting both of the government’s mo-
tions. As a threshold matter, the court found Case Num-
ber 15-1501 jurisdictionally barred under 28 U.S.C.
§ 1500. It also found that, even if it could overcome the
jurisdictional hurdle of § 1500, dismissal for lack of juris-
diction and failure to state a claim was warranted. Spe-
cifically, the Court of Federal Claims concluded that it
lacked jurisdiction to address the constitutional claims
Hood asserted in both cases and that his contract claims
were time-barred. The court further concluded that it
lacked jurisdiction to review the tort-based claims in Case
Number 15-1200, and that Hood failed to sufficiently
allege a takings claim in Case Number 15-1501.
Finally, the court recounted the sheer number of com-
plaints Hood filed “across the federal judiciary system.”
Hood, 127 Fed. Cl. at 216. Because Hood’s complaints
included allegations that were not warranted by existing
law, failed to put forth a nonfrivolous argument for ex-
tending or modifying the law, and was “informed on
multiple occasions by other federal courts that his claims
are time-barred or otherwise fatally flawed,” the court
deemed his complaints frivolous and vexatious. Id. As a
sanction, the court barred Hood from filing any future
complaints in the Court of Federal Claims without an
order from a judge of the court approving such a filing.
Id.
Hood timely appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(3). We review the Court of Federal
6 HOOD v. US

Claims’ dismissals de novo. Frazer v. United States, 288
F.3d 1347, 1351 (Fed. Cir. 2002).
II. DISCUSSION
On appeal, Hood argues that the Court of Federal
Claims erred in dismissing his complaints in both Case
Number 15-1200 and Case Number 15-1501. Specifically,
he alleges that the court erred when it: (1) found that it
lacked jurisdiction to consider his claims in Case Number
15-1501 pursuant to 28 U.S.C. § 1500; (2) determined that
it lacked jurisdiction to consider his claims of constitu-
tional violations; (3) failed to apply equitable tolling and
the accrual suspension rule to his contract claims;
(4) determined that he failed to sufficiently allege a
takings claim in Case Number 15-1501; and (5) found that
he failed to plead fraud with particularity in Case Num-
ber 15-1200. For the reasons explained below, each of
these arguments is without merit.
A. Section 1500
At the outset, the Court of Federal Claims found that
Hood’s claims in Case Number 15-1501 were barred under
28 U.S.C. § 1500 because he had previously brought
claims based on the same operative facts in district court,
and those claims were then on appeal. While the Tucker
Act, 28 U.S.C. § 1491(a)(1), grants the Court of Federal
Claims jurisdiction over “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,” § 1500 divests the court of jurisdic-
tion when a related action is pending in another court.
Specifically, § 1500 provides that the Court of Federal
Claims “shall not have jurisdiction of any claim for or in
respect to which the plaintiff or his assignee has pending
in any other court any suit or process against the United
States.” 28 U.S.C. § 1500.
HOOD v. US 7

Determining whether § 1500 applies involves two in-
quiries: “(1) whether there is an earlier-filed ‘suit or
process’ pending in another court, and, if so, (2) whether
the claims asserted in the earlier-filed case are ‘for or in
respect to’ the same claim(s) asserted in the later-filed
Court of Federal Claims action.” Brandt v. United States,
710 F.3d 1369, 1374 (Fed. Cir. 2013) (citation omitted). If
the answer to either of these questions is negative, then
the Court of Federal Claims retains jurisdiction. Id.
As to the first inquiry, whether an earlier-filed suit is
“pending” for § 1500 purposes is determined at the time
the complaint is filed at the Court of Federal Claims. Id.
at 1375. Hood filed suit in the Western District of Michi-
gan in October 2014. Hood, 127 Fed. Cl. at 206. After the
district court dismissed his claims, Hood filed an appeal
in the United States Court of Appeals for the Sixth Cir-
cuit on August 12, 2015. Id. That appeal was still pend-
ing on December 11, 2015, when Hood filed his complaint
in Case Number 15-1501 with the Court of Federal
Claims. See Brandt, 710 F.3d at 1380 (a case is “pending”
under § 1500 once a notice of appeal is filed). Accordingly,
there was an earlier-filed suit pending in the Sixth Circuit
when Hood filed his complaint below.
With respect to the second inquiry, two lawsuits are
“for or in respect to” the same claim(s) if “they are based
on substantially the same operative facts, regardless of
the relief sought in each suit.” United States v. Tohono
O’Odham Nation, 563 U.S. 307, 317 (2011). As detailed in
the decision on appeal, the facts alleged in Hood’s Court of
Federal Claims complaint are nearly word-for-word
identical to the facts alleged in his Western District of
Michigan complaint. Hood, 127 Fed. Cl. at 206-09 (com-
paring the complaints). Both cases are based on a nearly
identical set of alleged interactions between Hood and the
USPS, namely that the agency discriminated against him,
failed to provide reasonable accommodations, and failed
to allow absences that Hood maintains should have been
8 HOOD v. US

permitted. Id. Accordingly, the two suits are “based on
substantially the same operative facts.” Tohono, 563 U.S.
at 317.
On appeal, although Hood states that he “believe(s)
the Court erred when determining that [his] complaints
were barred by 28 U.S.C. § 1500,” he provides no expla-
nation or support for his position. Informal Br. 12.
Because the Court of Federal Claims correctly determined
that Hood’s complaint in Case Number 15-1501 was based
on the same set of operative facts as his pending Sixth
Circuit appeal, we agree that the court lacked subject
matter jurisdiction under § 1500. As explained below,
however, even if Hood’s claims in Case Number 15-1501
were not statutorily-barred by 28 U.S.C. § 1500, we find
no error in the Court of Federal Claims’ decision dismiss-
ing that complaint on other grounds.
B. Constitutional Claims
Turning to Hood’s constitutional claims, it is well es-
tablished that the Court of Federal Claims is a court of
limited jurisdiction. Under the Tucker Act, it has author-
ity over claims for money damages against the United
States based on sources of substantive law that “can fairly
be interpreted as mandating compensation by the Federal
Government.” United States v. Navajo Nation, 556 U.S.
287, 290 (2009) (citations and internal quotation marks
omitted). The Tucker Act is merely “a jurisdictional
statute; it does not create any substantive right enforcea-
ble against the United States for money damages. . . .
[T]he Act merely confers jurisdiction upon it whenever the
substantive right exists.” United States v. Testan, 424
U.S. 392, 398 (1976). Therefore, to pursue a substantive
right within the jurisdiction of the Tucker Act, a plaintiff
must identify a Constitutional provision, federal statute,
executive agency regulation, or a contractual relationship
with the United States that provides a substantive right
to recover money damages. See Todd v. United States,
HOOD v. US 9

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 itself.”).
The Court of Federal Claims correctly concluded that
it was without jurisdiction to consider Hood’s claims
alleging violation of his constitutional right to due process
under the Fifth Amendment and his right to equal protec-
tion under the Fourteenth Amendment. Hood, 127 Fed.
Cl. at 209. It is well established that those constitutional
provisions do not create a substantive right to money
damages from the government. See LeBlanc v. United
States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (“[T]he Due
Process Clauses of the Fifth and Fourteenth Amendments
[and] the Equal Protection Clause of the Fourteenth
Amendment” do not provide “a sufficient basis for juris-
diction because they do not mandate payment of money by
the government.”); see also Crocker v. United States, 125
F.3d 1475, 1476 (Fed. Cir. 1997).
Likewise, the Court of Federal Claims correctly con-
cluded that it lacked jurisdiction to consider Hood’s claim
for “First Amendment Violation of free Speech” in Case
Number 15-1200. Hood, 127 Fed. Cl. at 209-10. “That
amendment merely forbids Congress from enacting cer-
tain types of laws; it does not provide persons aggrieved
by governmental action with an action for damages in the
absence of some other jurisdictional basis.” United States
v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (en banc).
As such, we have held the First Amendment, “standing
alone, cannot be so interpreted to command the payment
of money.” Id. Accordingly, we affirm the Court of Feder-
al Claims’ decision to dismiss Hood’s constitutional claims
in Case Number 15-1200 and Case Number 15-1501.
C. Contract Claims
Hood asserted multiple breach of contract claims in
both Case Number 15-1200 and Case Number 15-1501,
10 HOOD v. US

including breach of the Settlement Agreement, breach of
an implied-in-fact contract, breach of common law prom-
issory estoppel, breach of an implied covenant of good
faith and fair dealing as to the Settlement Agreement,
breach of the promise to accommodate, and breach of the
implied covenant of good faith and fair dealing for failure
to provide equal treatment in the workplace. Hood, 127
Fed. Cl. at 213. The Court of Federal Claims found that
Hood’s contract claims were time-barred under 28 U.S.C.
§ 2501, and that neither equitable tolling nor accrual
suspension applied. The court likewise rejected Hood’s
contention that his alleged disability tolled the statute of
limitations. As explained below, we find no error in the
court’s analysis.
Suits against the United States are subject to a six-
year statute of limitations. See 28 U.S.C. § 2501 (“Every
claim of which the United States Court of Federal Claims
has jurisdiction shall be barred unless the petition there-
on is filed within six years after such claim first ac-
crues.”). It is well established that this limitations period
“is jurisdictional and may not be waived or tolled.”
FloorPro, Inc. v. United States, 680 F.3d 1377, 1380-81
(Fed. Cir. 2012) (citing John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 136-39 (2008)).
The statute of limitations begins to run, and a Tucker
Act 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, entitling the claimant to demand pay-
ment and sue’” for money. Martinez v. United States, 333
F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (quoting Nager
Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl.
1966)). The question of “whether the pertinent events
have occurred is determined under an objective standard;
a plaintiff does not have to possess actual knowledge of all
the relevant facts in order for the cause of action to ac-
crue.” FloorPro, 680 F.3d at 1381 (citation omitted).
HOOD v. US 11

Generally, “[i]n the case of a breach of a contract, a cause
of action accrues when the breach occurs.” Holmes v.
United States, 657 F.3d 1303, 1317 (Fed. Cir. 2011) (quot-
ing Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998)).
The Court of Federal Claims found that, in Case
Number 15-1501, Hood’s factual allegations spanned from
December 2000 through August 2008, and his allegations
in Case Number 15-1200 spanned from August 2006
through September 2008. Hood, 127 Fed. Cl. at 214.
Hood filed his complaint in Case Number 15-1200 on
October 15, 2015, and his complaint in Case Number 15-
1501 on December 11, 2015—both over six years after the
last alleged breach. Because Hood’s contract claims were
filed more than six years after they accrued, the Court of
Federal Claims was without jurisdiction to consider them.
Hood argues that the Court of Federal Claims should
have applied principles of equitable tolling and accrual
suspension to find his complaint timely. We disagree.
First, as noted, equitable tolling is precluded under
§ 2501. See FloorPro, 680 F.3d at 1382 (“Because section
2501’s time limit is jurisdictional, the six-year limitations
period cannot be extended even in cases where such an
extension might be justified on equitable grounds.”);
Holmes, 657 F.3d at 1318 n.11 (“[T]he accrual suspension
rule is distinct from equitable tolling, which the Supreme
Court has stated is precluded under 28 U.S.C. § 2501.”).
As the Court of Federal Claims noted, however, the
accrual of a claim under 28 U.S.C. § 2501 may be sus-
pended in certain limited scenarios. The accrual suspen-
sion rule provides that “the accrual of a claim against the
United States is suspended, for purposes of 28 U.S.C.
§ 2501, until the claimant knew or should have known
that the claim existed.” Martinez, 333 F.3d at 1319. For
the rule to apply, the plaintiff “must either show that
defendant has concealed its acts with the result that
12 HOOD v. US

plaintiff was unaware of their existence or it must show
that its injury was ‘inherently unknowable’ at the accrual
date.” Id. (citation omitted). “It is a plaintiff’s knowledge
of the facts of the claim that determines the accrual date.”
Young v. United States, 529 F.3d 1380, 1385 (Fed. Cir.
2008).
The Court of Federal Claims correctly concluded that
Hood was not entitled to the benefit of the accrual sus-
pension rule. As the court explained, Hood did not allege
that the USPS concealed from him “the actions which
form the basis of the breach claims, or that information
regarding the alleged breaches was inherently unknowa-
ble.” Hood, 127 Fed. Cl. at 215.
Hood maintains on appeal that he was unaware of his
claims until, as part of his Merit Systems Protection
Board appeal, the administrative law judge “advised” him
that “the agency’s actions were arbitrary and capricious.”
Informal Br. 9. According to Hood, he then requested his
records from the Department of Labor’s Office of Workers’
Compensation Programs (“OWCP”) in December 2013,
and “discover[ed] that the agency breached the agree-
ment.” Hood, 127 Fed. Cl. at 215.
As the Court of Federal Claims found, however, Hood
did not “allege[] that these records were unavailable, or
that he could not have accessed them, prior to December
2013.” Id. Instead, “the record suggests that the docu-
ments which [Hood] alleges contain various breaches of
the Settlement Agreement were readily available and
that he received them upon request.” Id. And, although
Hood alleges that he was not aware of his claims, the law
is clear that “[i]gnorance of rights which should be known
is not enough” to suspend the accrual of a claim. Braude
v. United States, 585 F.2d 1049, 1051 (Ct. Cl. 1978) (quot-
ing Japanese War Notes Claimants Ass’n v. United States,
373 F.2d 356, 358-59 (Ct. Cl. 1967)). Given these circum-
stances, and because the accrual suspension rule is
HOOD v. US 13

“strictly and narrowly applied,” we agree with the Court
of Federal Claims that Hood’s claims should not be sus-
pended to avoid application of the six-year statute of
limitations. See Martinez, 333 F.3d at 1319 (quoting
Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir.
1985)).
Hood also alleges that the Court of Federal Claims
erred in rejecting his claim for tolling due to his alleged
legal disability. Section 2501 states that “[a] petition on
the claim of a person under legal disability . . . at the time
the claim accrues may be filed within three years after
the disability ceases.” As our predecessor court explained,
“[o]nly a serious impediment can qualify to suspend
running of the statute [of limitations].” Goewey v. United
States, 612 F.2d 539, 544 (Ct. Cl. 1979). Because the law
presumes “sanity and competency rather than insanity
and incompetency,” a plaintiff bears a heavy burden of
demonstrating a “legal disability” for purposes of § 2501.
Id.
Section 2501 “require[s] a mental derangement pre-
cluding a person from comprehending rights which he
would be otherwise bound to understand.” Id. at 545. In
Goewey, for example, although the plaintiff was diagnosed
as obsessive compulsive, depressed, and had a diagnosis
of “latent schizophrenia,” the court found no “legal disabil-
ity” given his “active involvement” in “efforts to secure”
benefits. Id. at 543-45. The court explained that the
plaintiff’s activities “ma[d]e it abundantly clear that [he]
was able to understand such complexities and was decid-
edly not adverse to protecting his interests to the utmost.”
Id. at 545.
Hood argues that the Court of Federal Claims erred
when it “determined that [he] was not under a psychiat-
ric/mental illness in 2007.” Informal Br. 7. According to
Hood, he has “been under a psychiatric disability for ptsd,
anxiety, and major depression commencing December
14 HOOD v. US

2000 and continuing into the present.” Id. at 8. The
Court of Federal Claims found that, although Hood’s
medical documents “suggest various medical issues,” his
complaint “falls short of sufficiently asserting or estab-
lishing an inability by plaintiff to comprehend his legal
rights during the relevant statute of limitations time
period.” Hood, 127 Fed. Cl. at 215. The court further
found that Hood failed to allege “sufficient facts to deter-
mine that he suffered from an alleged disability in 2004
when he was removed from his job at the USPS, or since
that date.” Id. at 216.
As the Court of Federal Claims explained, “[t]he gen-
eral rule is that after the termination of a legal disability
the statute of limitations commences to run and the
tolling is not reinstated by a recurrence of the disability.”
Goewey, 612 F.2d at 546. Even assuming that Hood did
suffer a legal disability at one time, the court noted that
one of the documents he submitted, which was “labeled as
a physician’s initial exam and purportedly a medical
record,” stated that, as of November 14, 2007, “[c]ognitive
functioning and fund of knowledge is intact and age
appropriate” and “[t]here are no signs of anxiety.” Hood,
127 Fed. Cl. at 215. The court concluded that, even if
Hood had a disability that terminated on exactly Novem-
ber 14, 2007, “if his disability reoccurred later, the statute
of limitations would have continued to run.” Id. at 216.
Thus, even if Hood had a disability in 2006, when his
claim would have otherwise begun to accrue, that claim
would have expired before he filed either complaint in
2015. Id. 2

2 Hood submitted several documents for the first
time on appeal, including additional medical evidence and
2016 correspondence from the OWCP regarding payment
of compensation for an unnamed disability. See Informal
Br. Ex. B; Motion to Add Additional Medical Evidence,
HOOD v. US 15

We agree with the Court of Federal Claims that Hood
failed to provide evidence to meet his burden of showing
that a mental impairment precluded him from compre-
hending his legal rights and pursuing his claims. Hood,
127 Fed. Cl. at 215. Because neither tolling nor the
accrual suspension rule serves to avoid application of the
six-year statute of limitations, we agree with the Court of
Federal Claims that Hood’s contract claims are time-
barred.
D. Takings Claim
In Hood’s sole remaining claim in Case Number 15-
1501, he alleges that the government’s action in terminat-
ing his employment amounted to a regulatory and physi-
cal taking of private property. The Court of Federal
Claims dismissed Hood’s takings claim, finding that he
failed to “allege a property interest subject to a valid
constitutional takings claim.” Hood, 127 Fed. Cl. at 211.
We agree.
The Takings Clause of the Fifth Amendment provides,
in part, that private property shall not “be taken for
public use without just compensation.” U.S. CONST.
amend. V, cl. 4. We have developed a two-part test to
determine whether a taking has occurred. First, we must
determine whether the claimant has established a proper-
ty interest for purposes of the Fifth Amendment. Adams
v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004). “It

Hood v. United States, No. 16-2322 (Fed. Cir. Aug. 15,
2016), ECF No. 12. Because our review is limited to the
evidence in the record before the Court of Federal Claims,
we cannot consider new materials presented for the first
time on appeal. See Biery v. United States, 818 F.3d 704,
710 (Fed. Cir. 2016) (“In general, an appellate court’s
review is limited to the record presented at the court
below.”); see Fed. R. App. P. 10(a).
16 HOOD v. US

is axiomatic that only persons with a valid property
interest at the time of the taking are entitled to compen-
sation.” Am. Pelagic Fishing Co., L.P. v. United States,
379 F.3d 1363, 1372 (Fed. Cir. 2004) (citation and quota-
tion marks omitted). Second, if the court identifies a valid
property interest, it must determine “whether the gov-
ernmental action at issue amounted to a compensable
taking of that property interest.” Id.
The Court of Federal Claims found that, to the extent
Hood alleges that he had a property interest in his posi-
tion with the USPS, he “has not sufficiently alleged a
cognizable property interest.” Hood, 127 Fed. Cl. at 211.
This court has recognized that, “[i]f the government gives
a public employee assurances of continued employment or
conditions dismissal only for specific reasons, the public
employee has a property interest in continued employ-
ment.” Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368,
1374 (Fed. Cir. 1999). As the Court of Federal Claims
found, Hood failed to specify whether he received such
assurances with respect to his employment with the
USPS. Hood, 127 Fed. Cl. at 211.
On appeal, Hood submits that: (1) he was “a member
of the collective bargaining agreement (CBA), which
guaranteed employment rights”; and (2) he believed his
position with the USPS was permanent. Informal Br. 11-
12. These allegations are not sufficient to show that Hood
had a property interest in his continued employment, and
even if they were, Hood has not identified a property
interest compensable under the takings clause of the Fifth
Amendment. Notably, as the Court of Federal Claims
concluded, Hood did not allege “that he possessed the
right to dispose of, transfer, or exclude others from the
USPS job.” Hood, 127 Fed. Cl. at 211; see also Members of
the Peanut Quota Holders Ass’n v. United States, 421 F.3d
1323, 1331 (Fed. Cir. 2005) (“[T]he decisions by both the
Supreme Court and this court imply that a compensable
interest [under the takings clause] is indicated by the
HOOD v. US 17

absence of express statutory language precluding the
formation of a property right in combination with the
presence of the right to transfer and the right to ex-
clude.”).
As the Court of Federal Claims explained, moreover,
when an employee has a property interest in continued
public employment, that interest is protected under the
due process clause of the Fifth Amendment—not under
the takings clause. See Stone, 179 F.3d at 1374-75. And,
as explained previously, the Court of Federal Claims does
not have jurisdiction over claims arising under the due
process clause of the Fifth Amendment. Accordingly, the
Court of Federal Claims did not err in dismissing Hood’s
takings claim for failure to state a claim upon which relief
may be granted.
E. Tort Claims
Finally, we address Hood’s tort claims. “The plain
language of the Tucker Act excludes from the Court of
Federal Claims jurisdiction claims sounding in tort.”
Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008); see also 28 U.S.C. § 1491(a)(1)
(limiting jurisdiction “to claims for damages not sounding
in tort”). In his second amended complaint in Case Num-
ber 15-1200, Hood alleges fraud and conspiracy, both of
which are tort claims. See Brown v. United States, 105
F.3d 621, 623 (Fed. Cir. 1997) (“Because Brown and
Darnell’s complaints for ‘fraudulent assessments’ are
grounded upon fraud, which is a tort, the court lacks
jurisdiction over those claims.”); Hickman v. United
States, 629 F. App’x 988, 991 (Fed. Cir. 2015) (“Because
Ms. Hickman’s Complaint alleged injuries recognized as
torts—i.e., misrepresentation, fraud, and conspiracy—the
court lacked the subject matter jurisdiction to hear her
claims.”). The Court of Federal Claims therefore correctly
concluded that it lacked jurisdiction to consider Hood’s
allegations of fraud and conspiracy.
18 HOOD v. US

The court further found that, to the extent Hood’s
fraud allegations could be construed as claims of contract
fraud, he failed to properly state a claim for relief. Hood,
127 Fed. Cl. at 212. We find no error in the court’s con-
clusion. Rule 9(b) of the Rules of the Court of Federal
Claims, which is identical to its counterpart in the Feder-
al Rules of Civil Procedure, provides that, “[i]n alleging
fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.” As we
have explained in the context of the Federal Rules of Civil
Procedure, a plaintiff must plead “the who, what, when,
where and how” of the alleged fraud. Exergen Corp. v.
Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir.
2009) (citation and quotation marks omitted).
Here, the Court of Federal Claims found that, alt-
hough Hood’s complaint in Case Number 15-1200 “alleges
that defendant engaged in fraud,” he “does not specifically
identify individuals who he asserts committed such
fraudulent conduct.” Hood, 127 Fed. Cl. at 213. Nor does
he allege underlying facts from which the court could
infer that any of the government’s actions were “commit-
ted with the requisite state of mind.” Id.
On appeal, Hood argues that the Court of Federal
Claims should have allowed his fraud claims to go for-
ward because he satisfied the pleading requirements set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). But
those cases considered the pleading standard set forth in
Rule 8 of the Federal Rules of Civil Procedure, not Rule
9(b). Indeed, citing Rule 9, the Court in Twombly specifi-
cally recognized that, “[o]n certain subjects understood to
raise a high risk of abusive litigation, a plaintiff must
state factual allegations with greater particularity than
Rule 8 requires.” 550 U.S. at 569 n.14.
Hood claims that he sufficiently pled “contract fraud
and mistake” with particularity when he alleged that “the
HOOD v. US 19

agency reasons for taking such action was to defraud me
of my employment.” Informal Br. 11. In his amended
complaint in Case No. 15-1200, Hood alleged that the
Settlement Agreement “was the result of fraud, coercion,
and I was under duress because of my psychiatric condi-
tions.” Amended Compl., Hood v. United States, No. 1:15-
cv-1200 (Fed. Cl. Dec. 11, 2015), ECF No. 8 at 4. As the
Court of Federal Claims found, however, Hood failed to
identify any individual who committed the alleged fraudu-
lent acts. Hood, 127 Fed. Cl. at 213. Nor has he alleged
any facts from which a court could infer that a specific
individual acted with the requisite state of mind. See
Exergen, 575 F.3d at 1327. The Court of Federal Claims
therefore correctly determined that Hood’s allegations
were deficient under Rule 9(b).
III. CONCLUSION
We have carefully considered Hood’s remaining ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm the Court of Federal Claims’ decision
dismissing Hood’s complaints.
AFFIRMED