Mone v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

SADE MONE,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2018-2208
______________________

Appeal from the United States Court of Federal Claims
in No. 1:17-cv-01819-PEC, Judge Patricia E. Campbell-
Smith.
______________________

Decided: March 26, 2019
______________________

SADE MONE, Savannah, GA, pro se.

TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.
______________________

Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
2 MONE v. UNITED STATES

PER CURIAM.
Sade Mone appeals from a decision of the United States
Court of Federal Claims (the “Claims Court”) dismissing
her complaint for lack of subject matter jurisdiction and de-
clining to transfer the case to district court. Mone v. United
States, 138 Fed. Cl. 279 (2018). Because the Claims Court
did not err in its dismissal and because any error in its
analysis of the transferee court’s jurisdiction was harmless,
we affirm.
BACKGROUND
Sade Mone, formerly known as Tabitha Robinson, filed
a complaint in the Claims Court alleging that she was sub-
jected to illegal housing conditions and illegal eviction pro-
ceedings by the Housing Authority of the City of
Charleston (“CHA”) while she was a resident at one of the
city’s housing projects. See id. at 280. CHA is a public
housing agency created under state law. See S.C. Code
Ann. § 31-3-310. The United States Department of Hous-
ing and Urban Development (“HUD”) is a federal agency
that provides annual contributions to help the public hous-
ing agencies maintain and operate low-income housing pro-
jects. See 42 U.S.C. § 1437 et seq.
Mone’s complaint details the distressing living situa-
tion she experienced including (1) construction resulting in
water damage; (2) the manager distributing “the master
key to [her] unit so that random people could enter without
[her] prior knowledge or consent”; (3) CHA employees giv-
ing “tenants permission to impose themselves, their
friends, children, other relatives, companions, etc. upon
[her]”; (4) offensive behaviors such as loitering, profanity,
drug use and dealing, alcohol, loud music, and vandalism;
(5) CHA instructing the police “not to file a police or inci-
dent report whenever a call came in” from her address;
(6) CHA harassing her with “meritless” ejection proceed-
ings that were unsuccessful; and (7) HUD’s annual inspec-
tions in 2009, 2010, and 2011 resulting in a pass even
MONE v. UNITED STATES 3

though there was “black mold” throughout the house and
CHA’s own inspection detailed that there was “mold cover-
ing every room of the unit including walls, windows, and
attic.” Complaint ¶ 4, Mone v. United States, 138 Fed. Cl.
279 (2018) (No. 17-1819C), ECF No. 1; J.A. 9–11 (“Com-
plaint”).
Because of these conditions, Mone sent a letter to
HUD’s Columbia Field Office on June 19, 2010 complaining
about the conditions and CHA. See Plaintiff’s Motion of
Opposition, Ex. 2, Mone v. United States, 138 Fed. Cl. 279
(2018) (No. 17-1819C), ECF No. 12. According to Mone, she
received no response. See Complaint ¶ 4. On November
16, 2011, Mone was evicted. Mone was then homeless for
the next two years and her health declined. She had to be
hospitalized multiple times and was diagnosed with sev-
eral illnesses. During this time, she sent another letter on
September 13, 2012—this time to HUD’s Atlanta Regional
Office—but again, she states that she received no response.
Id.; see Plaintiff’s Motion of Opposition, Ex. 3, Mone v.
United States, 138 Fed. Cl. 279 (2018) (No. 17-1819C), ECF
No. 12. On November 17, 2017, Mone filed her complaint
at the Claims Court alleging that the “gross negligence of
HUD employees who refused to respond to [her] complaints
and falsified inspections” resulted in her “permanent
health problems.” Complaint ¶ 4. Mone requested $13.5
million in damages. Id. ¶ 5.
The Claims Court granted the government’s motion to
dismiss under Rule 12(b)(1) for lack of subject matter juris-
diction. The court concluded that it lacked jurisdiction be-
cause Mone’s claims sounded in tort, which is expressly
excluded from the court’s jurisdiction under the Tucker
Act. See 28 U.S.C. § 1491. The court then declined to
transfer the case to another district court because it deter-
mined that Mone’s tort claims were time-barred. See 28
U.S.C. § 2401(b). The court determined that her claim ac-
crued on her eviction date of November 16, 2011. Accord-
ing to the court, the statute of limitations thus expired on
4 MONE v. UNITED STATES

November 16, 2013 based on the two-year statute of limi-
tations in § 2401(b). Her complaint was not filed at the
court until November 17, 2017, which was at least four
years too late. See Mone, 138 Fed. Cl. at 282. Because her
claims were time-barred, the court held that no district
court could exercise jurisdiction and the case could not be
properly transferred. See id. The Claims Court thus dis-
missed the complaint without prejudice. Id.
Mone timely appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo dismissals by the Claims Court for
lack of jurisdiction. Frazer v. United States, 288 F.3d 1347,
1351 (Fed. Cir. 2002). We review for abuse of discretion a
decision by the Claims Court concerning whether to dis-
miss or transfer a case to another court. See Rick’s Mush-
room Serv., Inc. v. United States, 521 F.3d 1338, 1342 (Fed.
Cir. 2008). “The underlying determination of whether the
transferee court has jurisdiction over the claim is a ques-
tion of law,” which we review de novo. Id. at 1342–43.
I
Mone argues that the Claims Court erred by failing to
address HUD’s violation of its own regulations as well as
her constitutional rights under the Due Process Clause of
the Fifth Amendment, which states that no one shall be
“deprived of life, liberty, or property without due process of
law.” U.S. Const. amend. V. According to Mone, while
CHA’s actions “were of tort, the actions of HUD were not.”
Appellant’s Br. 1. She contends that the court erred by not
addressing the implied contract she had with HUD through
HUD regulations as defined in HUD’s Title VIII “Fair
Housing Complaint Process.” Id.
The government responds that the Claims Court did
not fail to take into account any relevant facts. The gov-
ernment contends that the court properly reviewed the
MONE v. UNITED STATES 5

facts alleged in her complaint and found that all the claims
sounded in tort, which that court lacks jurisdiction to con-
sider. To the extent that Mone alleged a constitutional vi-
olation, the government also argues that the Claims Court
lacks jurisdiction to hear claims under the Fifth Amend-
ment’s Due Process Clause. While the Claims Court did
not address her implied contract claim, Mone never raised
it before the court, and the government argues it is waived
on appeal. Thus, according to the government, the court
properly dismissed her complaint.
We agree with the government that the Claims Court
properly concluded that it did not have jurisdiction to hear
Mone’s claims. The Tucker Act grants the Claims Court
jurisdiction over claims 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 liqui-
dated or unliquidated damages in cases not sounding in
tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). The Tucker
Act is “only a jurisdictional statute; it does not create any
substantive right enforceable against the United States for
money damages.” United States v. Testan, 424 U.S. 392,
398 (1976). “Instead, to invoke jurisdiction under the
Tucker Act, a plaintiff must identify a contractual relation-
ship, constitutional provision, statute, or regulation that
provides a substantive right to money damages.” Khan v.
United States, 201 F.3d 1375, 1377 (Fed. Cir. 2000).
Mone’s allegations against HUD are based on its as-
serted negligence in failing to address her housing prob-
lems and falsified inspections. Both the negligence and
fraud claims sound in tort, which the Claims Court does
not have jurisdiction to hear. See § 1491(a)(1). Mone’s
claims may be read to arise under the Federal Tort Claims
Act (“FTCA”), see Mone, 138 Fed. Cl. at 281, and Congress
has provided that “the district courts” have “exclusive ju-
risdiction” over those claims, 28 U.S.C. § 1346(b)(1). The
Claims Court also lacks jurisdiction to hear claims alleging
6 MONE v. UNITED STATES

a violation of the Due Process Clause of the Fifth Amend-
ment because it does not mandate payment of money by the
government. See LeBlanc v. United States, 50 F.3d 1025,
1028 (Fed. Cir. 1995). We therefore agree that the Claims
Court correctly determined that it lacks subject matter ju-
risdiction over Mone’s claims.
II
We also conclude that the Claims Court did not abuse
its discretion in deciding not to transfer the case to a dis-
trict court. Under 28 U.S.C. § 1631,
[w]henever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such
court . . . in which the action or appeal could have
been brought at the time it was filed or noticed . . . .
Id. We have interpreted § 1631 to require satisfaction by a
transferring court that a “transferee court has jurisdiction
to hear the case” before transferring it. See Jan’s Helicop-
ter Serv., Inc. v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008)
(quoting Gonzales & Gonzales Bonds & Ins. Agency, Inc. v.
Dep’t of Homeland Sec., 490 F.3d 940, 944 (Fed. Cir. 2007)).
The Claims Court purported to do so here and determined
that there was no court in which the claims could have been
filed because the FTCA claims were time-barred under 28
U.S.C. § 2401(b), 1 and, based on that finding, decided not
to transfer the case. Cf. Robleto v. United States, 634 F.
App’x 306, 308 (Fed. Cir. 2015) (concluding that because

1 We note the Supreme Court has held that the stat-
ute of limitations for complaints filed in the Claims Court
under § 2501 is jurisdictional; however, the time limits of
§ 2401(b) are not. Compare John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133–34 (2008), with United
States v. Wong, 135 S. Ct. 1625, 1632–34 (2015).
MONE v. UNITED STATES 7

the claim was time-barred, dismissal instead of transfer of
case was proper even though § 2401(b) is not jurisdic-
tional).
Under § 2401(b),
[a] tort claim against the United States shall be for-
ever barred unless it is presented in writing to the
appropriate Federal agency within two years after
such claim accrues or unless action is begun within
six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim
by the agency to which it was presented.
Id. (emphases added). Although written using the disjunc-
tive, this provision, as interpreted by several of our sister
courts of appeals, requires that the claimant both present
the claim to the appropriate agency within two years after
accrual of the claim and file a complaint in district court
within six months after the agency finally denies the
claim. 2 The Claims Court thus erred in interpreting

2 See, e.g., Sconiers v. United States, 896 F.3d 595,
599 (3d Cir. 2018) (collecting cases); Sanchez v. United
States, 740 F.3d 47, 50 n.6 (1st Cir. 2014) (“We read this
disjunctive language [of § 2401(b)] as setting out two dead-
lines, both (not just either) of which must be satisfied.”);
Ellison v. United States, 531 F.3d 359, 362 (6th Cir. 2008)
(holding that both deadlines must be satisfied); Phillips v.
United States, 260 F.3d 1316, 1317 (11th Cir. 2001) (“It is
undisputed that under section 2401(b), a tort claim must
be presented to the appropriate federal agency within two
years after the claim accrues and the lawsuit must be com-
menced within six months after the receipt of a final agency
decision.”); Houston v. U.S. Postal Serv., 823 F.2d 896, 902
(5th Cir. 1987) (“Though phrased in the disjunctive, this
statute requires a claimant to file an administrative claim
8 MONE v. UNITED STATES

§ 2401(b) to require filing a complaint within two years af-
ter such claim accrues; the statute, as generally inter-
preted, requires presentment to an agency “within two
years after such claim accrues” and filing a complaint
“within six months after . . . final denial of the claim by the
agency to which it was presented.” § 2401(b).
Applying that interpretation of § 2401(b), and assum-
ing arguendo that the Claims Court properly found that
the date of accrual was the eviction date of November 16,
2011, the statute requires Mone to have presented her
claim to the appropriate agency by November 16, 2013.
Mone alleged that she “sent two letters intended to serve
as formal complaints to HUD” dated June 19, 2010 and
September 13, 2012. Mone, 138 Fed. Cl. at 282. It is un-
clear from the current record that HUD ever received these
letters or that the letters otherwise constitute proper pre-
sentment of Mone’s claims to HUD. If it were clear that
Mone properly presented her claims, then she may have
satisfied the first requirement under § 2401(b), because

within two years and file suit within six months of its de-
nial.”); Dyniewicz v. United States, 742 F.2d 484, 485 (9th
Cir. 1984) (“Under the Federal Tort Claims Act a claim
must be filed with the appropriate federal agency within
two years of its accrual and suit must be commenced within
six months of the agency’s denial of the claim.”) (Kennedy,
J.); Willis v. United States, 719 F.2d 608, 612–13 (2d Cir.
1983) (considering the legislative history and concluding
that § 2401(b) requires that both deadlines must be met);
Schuler v. United States, 628 F.2d 199, 201 (D.C. Cir. 1980)
(en banc) (per curiam) (“Though the section is not happily
drafted, common sense and the legislative history tell us
that it requires the claimant both to file the claim with the
agency within two years after accrual of the claim and then
to file a complaint in the District Court within six months
after the agency denies the claim.”).
MONE v. UNITED STATES 9

Mone sent the letters before the two-year statute of limita-
tions expired on November 16, 2013.
She also may have satisfied the second requirement
under § 2401(b). After receiving a final denial from the
agency, a claimant has six months to file a complaint in
district court. See § 2401(b). Mone alleges that she never
received a response from the agency regarding her claims.
See Complaint ¶ 4. The FTCA provides that “[t]he failure
of an agency to make final disposition of a claim within six
months after it is filed shall, at the option of the claimant
any time thereafter, be deemed a final denial of the claim
for purposes of this section.” 28 U.S.C. § 2675(a) (emphasis
added). This provision requires that Mone have waited at
least six months after presentment before she may deem
her claim denied and file a complaint, if she so chose. See
id. Mone did wait the requisite six months, and, in fact,
waited more than five years after she sent her second letter
before filing her complaint at the Claims Court. Thus, as-
suming that Mone met the jurisdictional requirements of
the FTCA, which we discuss next, her claim may not have
been time-barred under § 2401(b).
III
While § 2401(b) governs the timing for filing an FTCA
claim, § 2675(a) provides the jurisdictional requirement
that claimants must exhaust their administrative reme-
dies prior to filing an FTCA claim. See McNeil v. United
States, 508 U.S. 106, 111 (1993); see also see Canuto v.
United States, 615 F. App’x 951, 953 (Fed. Cir. 2015). Un-
der § 2675(a), tort claims against the United States “shall
not be instituted . . . for money damages . . . unless the
claimant shall have first presented the claim to the appro-
priate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or reg-
istered mail.” § 2675(a) (emphases added). Congress has
thus prescribed two requirements for a claimant to exhaust
10 MONE v. UNITED STATES

her administrative remedies. First, the claimant must pre-
sent a claim for money damages to the appropriate agency
(the “presentment requirement”). Id. Second, the claimant
must receive a final denial from the agency (the “final de-
nial requirement”). Id. Because Mone alleges that she
never received a response from HUD, she had the option to
treat the lack of response as a deemed denial, as we have
previously discussed. See supra at 9. Therefore, Mone may
have met the second requirement—the final denial require-
ment.
To satisfy the first requirement, though, the present-
ment requirement, the action against the government must
be “for money damages” that the claimant shall “have first
presented . . . to the appropriate Federal agency.”
§ 2675(a). That requires the claimant to notify the agency
of the claim and request money damages, usually in a sum
certain. 3 But, as noted above, the current record is inade-
quate. There is no evidence supporting a finding that Mone

3 See Barber v. United States, 642 F. App’x 411, 414
(5th Cir. 2016); White-Squire v. U.S. Postal Serv., 592 F.3d
453, 457–58 (3d Cir. 2010); Medina v. City of Phila., 219 F.
App’x 169, 172 (3d Cir. 2007); Dalrymple v. United States,
460 F.3d 1318, 1324–25 (11th Cir. 2006); Blair v. IRS, 304
F.3d 861, 864 (9th Cir. 2002); see also 24 C.F.R. § 17.2(a)
(“[A] claim shall be deemed to have been presented when
the Department receives . . . an executed Claim for Dam-
ages or Injury, Standard Form 95, or other written notifi-
cation of an incident, accompanied by a claim for money
damages in a sum certain for injury to or loss of property,
for personal injury, or for death alleged to have occurred by
reason of the incident.”); 28 C.F.R. § 14.2(a) (“A claim shall
be deemed to have been presented when a Federal agency
receives from a claimant . . . written notification of an inci-
dent, accompanied by a claim for money damages in a sum
certain . . . .”).
MONE v. UNITED STATES 11

requested money damages, nor is there evidence showing
that HUD received the letters she sent. Section 1631 re-
quires satisfaction by a transferring court that a transferee
court has jurisdiction to hear a case before transferring it.
See Jan’s Helicopter Serv., 525 F.3d at 1304. Because the
current record does not contain sufficient facts supporting
presentment, we cannot be satisfied that the transferee
court would have jurisdiction under § 2675(a) and that her
FTCA action was timely under § 2401(b). Therefore, the
Claims Court did not abuse its discretion in deciding not to
transfer the case.
As a result, although the Claims Court erred in its use
and interpretation of § 2401(b), the error was harmless.
Moreover, because the Claims Court dismissed the com-
plaint without prejudice, Mone is not left without recourse.
Mone may bring suit on the same issues in district court.
Indeed, a district court would be well-equipped to assess its
own jurisdiction. It could, for instance, order jurisdictional
discovery to determine if Mone satisfied the presentment
requirement under § 2675(a). If jurisdictional discovery re-
veals that the letters constitute proper presentment, then
the district court may find that Mone satisfied the two-year
statute of limitations under § 2401(b). The district court
may also confirm through additional discovery that be-
cause Mone never received a response from HUD, she had
the option of treating the lack of response as a deemed de-
nial and timely filed her complaint within the six-month
statute of limitations under § 2401(b). Even if it disagrees,
the district court may equitably toll the requirements be-
cause § 2401(b) is not jurisdictional. Thus, the Claims
Court’s error in its use and interpretation of § 2401(b) did
not “affect the substantial rights” of Mone and was there-
fore harmless error. See 28 U.S.C. § 2111.
IV
Lastly, Mone argues that the Claims Court failed to
consider her claim that HUD breached an implied contract.
12 MONE v. UNITED STATES

Mone argues that she alleged an implied contract claim in
her complaint. See Appellant’s Br. 1. The government re-
sponds that Mone waived this argument for not raising it
before the Claims Court. We hold pro se litigants to “less
stringent standards than formal pleadings drafted by law-
yers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). How-
ever, even with the leniency afforded to pro se litigants,
issues not raised before the Claims Court are waived on
appeal. See Soliman v. United States, 724 F. App’x 936,
941 (Fed. Cir. 2018); Maxberry v. United States, 722 F.
App’x 997, 999–1000 (Fed. Cir. 2018); Kenyon v. United
States, 683 F. App’x 945, 949 (Fed. Cir. 2017); see also San
Carlos Apache Tribe v. United States, 639 F.3d 1346, 1354–
55 (Fed. Cir. 2011) (stating that arguments not raised be-
fore the Claims Court are “waived on appeal”). Because
Mone did not raise the implied contract claim before the
Claims Court, that argument is waived.
CONCLUSION
We have considered Mone’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the Claims Court’s decision dismissing Mone’s com-
plaint and declining to transfer the case to district court.
AFFIRMED
COSTS
No costs.