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No. 16-570
Fifed: January 17,20'17 FILED
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* JAN 1 7 2017
JULIAN R. HOOD, JR., *
Plaintiff,
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fug plaintiff; 28 U.S.C. S 1500.
UNITED STATES, *
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Defendant.
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Julian R. Hood, pro se, Escondido, CA.
Anthony F. Schiavefti, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. Also with
him was Allison Kidd-Miller, Assistant Director, Robert E. Kirschman, Jr., Director,
Commercial Litigation Branch, Benjamin C, Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Department of Justice, Washington, D.C.
OPINION
HORN. J.
FINDINGS OF FACT
Pro se plaintiff, Julian Hood, has initiated several actions in various United States
District Courts related to his deceased mother's waiver of her insurance policy under the
Federal Employees'Group Life Insurance Act (FEGLI), 5 U.S.C. S 8701-16 (2012). As
discussed in detail below, since 2015, plaintiff has been a frequent filer in the judicial
system, filing complaints based on the same nucleus of facts after receiving results he
finds unsatisfactory or, apparently, when he has run out of patience to await a decision.
Plaintiffs complaint in the above-captioned case alleges that the United States
Office of Personnel Management (OPM) wrongfully accepted his mother's waiver of her
life insurance policy under FEGLI in March 2002, and, as a result of the waiver, plaintiff
was not entitled to receive benefits under FEGLI. Plaintiff asserts that this "action is
brought under the Federal Group Life Insurance Act of 1954, 5 U.S.C. $$ 8701-8716 for
breach of contract, Common Law Promissory Estoppel/Quasi-contract claim, breach of
?0Iq l,aoE 0000 1053 h330
express and implied contract, breach covenant of good faith and fair dealings with the
FEGLI contract."l
According to the complaint, plaintiffs mother, "Debora Covington," was a federal
employee who submitted a "waiver of life insurance" to OPM on March 18, 2002 that
"cancelled her Federal Employees' Group Life Insurance . . . policy retroactively to June
of 2000." Plaintiff asserts that, approximately ten years later, Ms. Covington "contacted
OPM to request an original Standard Form 2823 'Designation of Beneficiary' form," and,
"[o]n March 18, 2012, OPM accepted an original carbon copy standard form 2823
'Designation of Beneficiary' for FEGLI benefits" from Ms. Covington. Ms. Covington died
on September 22,2013. According to plaintiff, after Ms. Covington died, plaintiff contacted
OPM on September 27, 2013 and "was told that there was no life insurance policy."
Subsequently, plaintiff submitted a request to "OPM Retirement Operations" for an
explanation regarding his deceased mother's FEGLI benefits. According to plaintiff, "OPM
Retirement Operations Legal Administrative Specialist decided that I was not eligible for
benefits under FEGLI and sent a notice with reconsideration rights." Plaintiff asserts that
he requested a reconsideration of OPM's initial decision, and "[o]n June 2, 2015, OPM
Legal Reconsideration Branch Administrative Specialist affirmed OPM's initial decision
stating that there are no medical records, which shows [sic] that my Mother was
incompetent when she signed the waiver in March of 2002 and was able to manage her
affairs." On October 8,2014, plaintiff "submitted a claim for FEGLI benefits to the Office
of Federal Employees' Group Life Insurance (OFEGLI) and MetLife Inc.," which was
denied on February 12, 2015 "because OPM did not certify FEGLI coverage" as Ms.
Covington had waived her FEGLI benefits more than ten years before her death.
After plaintiff administratively was denied benefits, he repeatedly filed lawsuits for
those benefits across the federal judiciary system seeking a resolution that he considers
satisfactory. A history of plaintiff's litigation activity follows. On April 20,2015, he filed a
complaint against OPM in the United States District Court of the Western District of
Michigan seeking to challenge Ms. Covington's waiver of her life insurance through the
Federal Employee Group Life Insurance Program. Hood v. Office of Pers. Mgmt., No. 15-
418 (W.D. Mich. Apr. 20, 2015). Two months later, on June 10, 2015, plaintiff filed a
second, nearly identical, complaint against OPM in the United States District Court of the
Western District of Michigan involving the same subject matter as the April 20,2015
complaint, seeking a "[r]eview of agency decision to deny life insurance benefits due
under FEGLI" and challenging Ms. Covington's waiver of "her life insurance through the
Federal Employee Group Life Insurance Program." Hood v. Office of Pers. Mqmt., No.
15-609 (W.D. Mich. June 10,2015). After reviewing the two complaints, the Western
Michigan District Court in Case No. 15-418 held:
[P]laintiff has filed two almost identical actions against the OPM, which
challenge the validity of his mother's March 18,2002 waiver of life
insurance, and which seek judicial review of the OPM's denial of FEGLI life
1
Capitalization, grammar, punctuation, and other errors quoted in this opinion are as they
appear in plaintiffls submissions.
insurance benefits due to the death of his mother. lt was unnecessary for
plaintiff to file two separate lawsuits which seek the same relief. . . . This
present action, being redundant of case no. 1 :1 5-cv-609, is DISMISSED.
Hood v. Office of Pers. Mqmt., No. 15-4'18 (W.D. Mich. July 20, 2015).
On May 17,2016, a Magistrate Judge of the United States District Court for the
Western District of Michigan issued a Report and Recommendation in Hood v. Office of
Personnel Manaqement, No. 15-609, explaining that "the Court construes plaintiffs
amended complaint as brought under FEGLIA, S U.S.C. S 8715, and contesting the
OPM's cancellation of [Ms. Covington]'s life insurance coverage on May 14, 2002,
because she was 'mentally incapable' of executing the waiver of insurance on March 18,
2002." See Hood v. Office of Pers. Mqmt., No. 15-609 (W.D. Mich. May 17,2016). ln
granting defendant's motion to dismiss plaintiff's complaint for lack of subject matter
jurisdiction, the court determined in the Report and Recommendation that "the
government had no legal duty to independently ascertain whether plaintiffs mother was
'mentally capable' of executing the March 18,2002life insurance waiver." The court relied
on Graber v. Metropolitan Life lnsurance Co., 855 F. Supp. 2d 673 (N.D. Ohio 2012), in
which another District Court found that the only legal duty imposed on the United States
under FEGLI is to ensure that the correct FELGI policy is negotiated and issued. On
August 18,2016, Western Michigan District Court Chief Judge Robert J. Jonker issued
an order approving and adopting the Magistrate Judge's Report and Recommendation in
Hood v. Office of Personnel Manaqement, No. 15-609. Accordingly, plaintiff's complaint
was dismissed and judgment was entered in favor of defendant. On September 12,2016,
plaintiff filed a pro se Notice of Appeal to the United States Court of Appeals for the Sixth
Circuit. That appeal remains pending. See Hood v. Office of Pers. Mqmt., No. 16-2276
(6th Cir. Jan. 17,2017\.
During the same period of time in which plaintiff's complaint was before the District
Court for the Western District of Michigan, plaintiff filed a complaint in the United States
Court of Federal Claims on October 9,2015 "alleging that sometime in March of 2002,
the Office of Personnel Management wrongfully accepted a waiver of life insurance from
my Mother," and that "OPM is responsible for administering the life insurance contract in
which it failed to do when erroneously accepting a waiver of life insurance from my
Mother." Hood v. United States, No. 15-1 158 (Fed. Cl. Oct. 9, 2015). Just as in the above-
captioned case currently before this court, in Case No. 15-1 158, plaintiff stated that the
"action is brought under the Tucker Act and Federal Group Life Insurance Act of 1954, 5
U.S.C. SS 8701-8716 for breach of contract due to denial of FEGLI death benefits." Hood
v. United States, No. 1 5-1 1 58 (Fed. Cl. Oct. 9, 2015). After plaintiff failed to pay the court
filing fee pursuant to the court's Order in Case No. 1 5-1 158, on February 26, 2016, the
court dismissed the case and entered judgment against plaintiff. Three days later, on
February 29, 2016, plaintiff appealed the dismissal to the United States Court of Appeals
for the Federal Circuit. See Hood v. United States, No. 16-1641 (Fed. Cir. Feb. 29, 2016).
On June 27,2016, the Federal Circuit affirmed the decision of the lower court in Hood v.
United States, No.'t5-1 158
On February 11,2016, while plaintiff's cases before the United States District Court
for the Western District of Michigan and the United States Court of Federal Claims were
pending, plaintiff filed another complaint in the United States District Court for the
Southern District of New York again alleging violations of FEGLI based on his deceased
mother's waiver of her life insurance policy. Hood v. MetLife lnc., No. 16-1 150 (S.D.N.Y.
Feb. 11, 2016). On March B, 2016, the United States District Court for the Southern
District of New York transfened Hood v. MetLife lnc., No. 16-1 150 to the United States
Court of Federal Claims "in the interest of justice," citing plaintiff's earlier-filed action
already pending in the United States Court of Federal Claims in which plaintiff had been
ordered to pay the filing fee, Hood v. United States, No. 15-1 158.
After plaintiffs case was transferred, it was filed in this court on May 12,2016 as
Hood v. United States, No. 16-570, and assigned to the undersigned. Similar to plaintiffs
previous case filed in this court, Hood v. United States, No. 15-1 158, in the above-
captioned case plaintiff, yet again, failed to pay the filing fee in accordance with an Order
of this court, and the case was dismissed without prejudice on July 1 , 2016. On
September 13, 2016, however, just one day after plaintiff appealed the decision of the
District Court for the Western District of Michigan in Hood v. Office of Personnel
Manaqement, No. 15-609 to the Sixth Circuit, plaintiff paid the filing fee in this court and
filed a motion to re-open the above-captioned case, which was granted. On October 4,
2016, by leave of the court, plaintiff filed his amended complaint, which sets forth several
legal theories based on the same nucleus of facts as plaintiffs previous complaints in
Hood v. Office of Personnel Manaqement, No. 15-418 (W.D. Mich. Apr.20,2015); Hood
v. Office of Personnel Manaqement, No. 15-609 (W.D. Mich. May 17,2016); and Hood v.
United States, No. 15-1 158 (Fed. Cl. Oct. 9, 2015). Plaintiffs complaint alleges breach of
contractual and fiduciary duties under FEGLI, arbitrary and capricious action by OPM,
breach of the covenant of good faith and fair dealings, breach of an implied contract,
promissory estoppel, unjust enrichment, conversion, and violation of California Civil Code
SS 1709, 1710,1572, and 1573. Plaintiff seeks the following damages: "All compensatory
and economic (monetary) damages," "Special money damages," "Liquidated money
damages," "All reasonable expenses incurred by Julian R. Hood Jr., including court costs
and reasonable and necessary attorney fees," and "Pre-judgment and posljudgment
interest." Plaintiff also seeks declaratory and injunctive relief.
Defendant moved to dismiss plaintiffls complaint under Rules 12(bX1) and 12(bX6)
of the Rules of the United States Court of Federal Claims (RCFC) (2016) for lack of
subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
DISCUSSION
The court recognizes that plaintiff is proceeding pro se, without the assistance of
counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'q denied,405 U.S. 9 B (972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429
U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir.2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff d,
603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[t]here is
no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled
out in his [or her] pleading.""' Lenqen v. United States, 100 Fed. Cl.317,328 (201'l)
(alterations in original) (quoting Scoqin v. United States,33 Fed. C|.285,293 (1995)
(quoting Clark v. Nat'l Travelers Life lns. Co., 518 F.2d 1167,1169 (6th Cir. 1975))); see
also Bussiev. United States,96 Fed. C|.89,94, atf'd,443 F. App'x 542(Fed.Cu.2011);
Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a pro se plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States,93 Fed. Cl. 163, 165 (2010)
(citing Huqhes v. Rowe,449 U.S. at g and Tavlorv. United States, 303 F.3d 1357, 1359
(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'q and reh'q en banc denied (Fed. Cir.2002)); see also Shelkofskv v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities
in a pro se plaintiffs complaint, the court 'does not excuse [a complaint's] failures."'
(quoting Henke v. United States,60 F.3d 795,799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiffs pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
cl. at 253)).
Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(bX1)
for lack of subject matter jurisdiction, and RCFC 12(b)(6), for failure to state a claim for
which relief may be granted. The Tucker Act, 28 U.S.C. S 1491, grants jurisdiction to this
court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. $ 1a91(a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'o and reh's en banc denied
(Fed. Cir.2007), cert. denied,552 U.S. 1142(2008): Palmerv. United States, 168 F.3d
1310. 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. Inc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir.2008) ("[P]laintiff must. . . identify a
substantive source of law that creates the right to recovery of money damages against
the United States."); Golden v. United States, 118 Fed. Cl.764,768 (2014). In Ontario
Power Generation. Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fal
within the Tucker Act's waiver. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directlv or in effect, and seeks return of all or part of that sum."
Eastoort S.S. lCorp. v. United States, 178 Ct. Cl. 599,605-06,] 372F.2d
[1 002,] 1007-08 [(1 967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. United States,127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d aI 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.
1392,1 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario Power Generation. Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);
see also Two. of Saddle Brook v. United States , 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at472;united
States v. Mitchell,463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts)."). "'lf the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv.. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv.. Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint." (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteoration. Inc. v. United States.659 F.3d
1159, 1163 (Fed. Cir.2011).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiffs claim, independent of any
defense that may be interposed." Hollev v. United States ,124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'q
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl.203,208 (2011): Gonzalez-McCaulley Inv. Grp.. Inc. v. United States, 93 Fed. Cl.710,
713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2)
(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Ail. Corp. v.
Twombly, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,
"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
supporta claim." Bradlevv. Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir.'1998); seealso
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir.2007) (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), affd, 460 U.S. 325 (1983). 'A plaintiff's factual allegations must'raise
a right to relief above the speculative level' and cross 'the line from conceivable to
plausible."'Three S Consultinq v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting
Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed. Cir.), reh,q
denied (Fed. Cn.2014). As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550
U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twomblv, 550 U.S. at 555).
Defendant argues that the court does not possess jurisdiction to entertain plaintiff s
claims because jurisdiction is barred by 28 U.S.C. S 1500 (2012), which limits the court's
jurisdiction when a related action is pending in another District Court. Defendant asserts
that plaintiff's complaint in the above-captioned case and plaintiffs complaint in the
District Court of the Western District of Michigan, Hood v. Office of Personnel
Manaqement, No. 15-609, contain factual allegations that "stem from Mr. Hood's
allegations that OPM's acceptance and processing of his mother's waiver of her FEGLI
life insurance was improper." According to defendant, plaintiff filed his complaint in Hood
v. Office of Personnel Manaqement, No. 15-609, on June 10,2015, and that case
remained pending in the District Court of the Western District of Michigan on February
11,2016 when Mr. Hood filed his complaint in the Southern District of New York, Hood v.
Metlife. Inc., No. 16-1150, as well as on May 12,2016 when Hood v. Metlife lnc., No. 16-
1150, was transferred to the United States Court of Federal Claims and the above-
captioned case was assigned to the undersigned. Defendant asserts that "[b]ecause
whether an earlier filed suit is considered pending for the purposes of section 1500 is
determined at the time that the complaint is filed, Mr. Hood's complaint in this action is
barred by section 1500."
Plaintiff argues that 28 U.S.C. g 1500 does not bar this court from exercising
jurisdiction over the above-captioned case because, according to plaintiff, the complaint
in this case was filed on October 9, 2015. As explained above, however, plaintiff filed his
complaint in Hood v. United States, No. 15-1158, a separate case before this court, on
October 9, 2015, and that case was dismissed on February 24,2016. Subsequenily, on
May 6, 2016, the United States Court of Appeals for the Federal Circuit affirmed the rower
court's dismissal of Hood v. United States, No. 15-'l 1 58. Plaintiff cannot rely on the date
of a complaint he filed in an entirely separate action before this court to survrve
defendant's motion to dismiss in the above-captioned case.
The statute at 28 U.S.C. g 1500 provides:
The United States 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 or any person
who, at the time when the cause of action alleged in such suit or process
arose, was, in respect thereto, acting or professing to act, direc y or
indirectly under the authority of the United States.
28u.s.c.S1500. Theapplicationofsection'l500turnsonwhetherplaintiffhadpending,
at the time he filed suit in the court of Federal claims, a suit in another court against the
United States or a person acting under authority of the United States, baseo on
substantially the same operative facts as the suit filed in this court, regardless of the relief
sought. See United States v. Tohono O'Odham Nation, 563 U.S. 307,315 (2011); see
also Ministerio Roco Solida v. United States , 129 Fed. Cl. 140, 143 (2016)..The question
of whether another claim is 'pending' for purposes of $ 1500 is determined at the time at
which the suit in the Court of Federal Claims is filed, not the time at which the Government
moves to dismiss the action." Loveladies Harbor. Inc. v. United States, 27 F.3d 1545,
1548 (Fed. Cir. 1994) (discussing the Supreme Court's opinion in Keene Corp. v. United
States, 508 U.S. 200 (1993)) ovenuled on other qrounds, United States v. Tohono
O'Odham Nation, 563 U.S. at 31 5. Indeed, "'the jurisdiction of the Court depends upon
the state of things at the time of the action brought."' Keene Corp. v. United States, 508
U.S. at207 (quoting Mollan v. Torrance,22U.S.537,539 (1824) (Marshall, C.J.) (other
citations omitted) (noting that the Court of Federal Claims correctly applied section 1500
by "looking to the facts existing when Keene filed each of its complaints."). When a diskict
court has entered judgment dismissing a case, the United States Court of Appeals for
the Federal Circuit has established that once "a notice of appeal is filed," then the case
is "pending" under 28 U.S.C. S 1 500. Brandt v. United States, 710 F.3d 1 369; 1380 (Fed.
Cu.2013). "[O]nce a claim is dismissed or denied, it is no longer'pending'for g 1500
purposes until a motion for reconsideration or notice of appeal is filed." Brandt v. United
States, 710 F.3d at 1380.
The United States Supreme Court offered some clarification regarding the effect
of 28 U.S.C. S 1500 in Tohono O'Odham Nation. In the words of the United States
Supreme Court, section 1500 "bars jurisdiction in the CFC [Court of Federal Claims] not
only if the plaintiff sues on an identical claim elsewhere - a suit'for'the same claim - but
also if the plaintiff s other action is related although not identical - a suit 'in respect to' the
same claim." United States v. Tohono O'Odham Nation, 563 U.S. at 312. The Supreme
Court explained, "two suits are for or in respect to the same claim when they are based
on substantially the same operative facts." ld. at 318 (citing Keene Corp. v. United States,
508 U.S. 200,206 (1993)).
There is, however, no set test to determine when, according to the Supreme Court,
"two suits have sufficient factual overlap to trigger the jurisdictional bar." United States v.
Tohono O'Odham Nation, 563 U.S. at 318. Although the assessment must be on a case
by case factual basis, the Tohono O'Odham Nation case provides a general framework
for consideration. In its decision, the Supreme Court stated in Tohono O'Odham Nation:
The remaining question is whether the Nation's two suits have sufficient
factual overlap to trigger the jurisdictional bar. The CFC [United States
Court of Federal Claimsl dismissed the action here in part because it
concluded that the facts in the Nation's two suits were, "for all practical
purposes, identical." 79 Fed. Cl. 645, 656 (2007). lt was correct to do so.
The two actions both allege that the United States holds the same assets in
trust for the Nation's benefit. They describe almost identical breaches of
fiduciary duty - that the United States engaged in self-dealing and
imprudent investment, and failed to provide an accurate accounting of the
assets held in trust, for example. Indeed, it appears that the Nation could
have filed two identical complaints, save the caption and prayer for relief,
wathout changing either suit in any significant respect. Under g 1S00, the
substantial overlap in operative facts between the Nation's District Court
and CFC suits precludes jurisdiction in the CFC.
ld. at 317.
The history of plaintiffs filings in this court and in the District Court for the Western
District of Michigan reveals that plaintiff had filed a claim in another District Court before
filing his complaint in the above-captioned case, and that action at the Western Michigan
District Court was pending when the plaintiff filed his complaint in the Southern District of
New York on February 11, 2016, when the case was transferred to the United States
Court of Federal Claims on March 8, 2016, and at the time plaintiff filed his transfer
complaint in the above-captioned case on May 27,2016. The United States Court of
Appeals for the Federal Circuit held in Brandt v. United States, 710 F.3d at 1375, that
"[w]hether an earlier-filed 'suit or process' is'pending'for $ 1500 purposes is determined
at the time the complaint is filed with the Court of Federal Claims." ld. In the above-
captioned case, plaintiff filed his complaint with the United States Court of Federal Claims
on May 27,20'16, however, nearly one year earlier, on June 10,2015, plaintiff had filed a
case before the Western District of Michigan, Hood v. Office of Personnel Manaqement,
No. 15-609, which was pending. Approximately two months after plaintiff filed his
complaint with the United States Court of Federal Claims, on August 18, 2016, the
Western District of Michigan dismissed Hood v. Office of Personnel Manaqement, No.
15-609.
The court notes that the above-captioned case is distinctive because it initially
began in the Southern District of New York and was subsequently transferred to the
United States Court of Federal Claims, however, even if the court considers the date on
which plaintiff filed his complaint in the Southern District of New York, which was February
11,2016, that date was nearly eight months after plaintiff filed his complaint in Hood v.
Office of Personnel Manaqement, No. 15-609, in the Western Michigan District Court.
Thus, even if the court considers the earlier date on which plaintiff filed his complaint in
the Southern District of New York, it would not change the $ 1500 analysis because
plaintiff had already filed an earlier suit in the Western District of Michigan. Additionally,
on September 12,2016, while the above-captioned case was pending, plaintiff appealed
the decision of the Michigan District Court to United States Court of Appeals for the Sixth
Circuit, and that appeal remains pending. See Hood v. Office of Pers. Mqmt., No. 16-
2276 (6th Cir. Jan. 17 ,2017).
Having established that at the time plaintiff filed his complaint in this court there
was an earlier-filed pending case before another Diskict court, the court considers
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 at 1374 (citing Trusted lnteqration. Inc. v. United States, 659 F.3d 1 159,
1163-64 (Fed. Cir. 2011)). As explained above, two suits are for, or in respect to, the
same claim if they are based on substantially the same operative facts, regardless of the
relief sought. See id. ln the case before the District Court in Michigan, plaintiff alleged that
""[o]n March 18,2002, while underthe influence of a cocktail of Actiq lollipops, OxyContin,
Vicodin, Ambien, valium, and many more, my mother waived her life insurance through
the Federal Employee Group Life Insurance Program (FELGI) and lam requesting to
challenge that waiver." Hood v. Office of Pers. Momt., No. 15-609. Plaintiff furtheralleged
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in that case that "[o]n June 2, 2015, the U.S. Office of Personnel Management denied my
request for reconsideration and affirm [sic] their initial decision, which was issued in
November 2014. I do not agree the decision [sic] and I am contacting this Honorable court
seeking to have that decision reversed." Hood v. Office of Pers. Mqmt., No. 15-609.
Plaintiff's allegations in the above-captioned case are nearly, if not entirely, identical.
Plaintiff alleges "[o]n March 18, 2002, The Office of Personnel Management (OPM)
wrongfully accepted a waiver of life insurance from my Mother, Debora Covington and
cancelled her Federal Employees' Group Life Insurance (FEGLI) policy retroactively to
June of 2000," and that "[o]n February 12, OFEGLI and MetLife, Inc., denied benefits,
because OPM did not certify FEGLI coverage." In both cases, plaintiff alleges that OPM
wrongfully accepted his deceased mother's waiver. A review and comparison of the
complaints that Mr. Hood filed in this court and the District Court for the Western District
of Michigan makes clear that plaintiff's complaints in both cases arise from the same set
of ooerative facts.
Because Hood v. Office of Personnel Manaoement, No. 15-609, was pending in
the Western District of Michigan at the time the above-captioned case commenced,2 and
plaintiff's claims in that case were based on the same operative facts as plaintiff's claims
in the above-captioned case, this court is statutorily-baned from exercising jurisdiction
over plaintiffs complaint pursuant to 28 U.S.C. S 1500.
Furthermore, the undersigned previously adjudicated two cases filed by Mr.
Hood, Hood v. United States, No. 15-1200, and Hood v. United States, No. 15-1501, in
Hood v. United States, 127 Fed. Cl. 192 (2016), affld, 2016 WL 6543529, at .3 (Fed. Cir.
Nov. 4, 2016), which are significant to the above-captioned case because, on appeal, the
United States Court of Appeals for the Federal Circuit affirmed this court's finding that 28
U.S.C. S 1500 barred the court from exercising jurisdiction over Mr. Hood's case. See
Hood v. United States, 2016 WL 6543529, at -3 (Fed. Cir. Nov. 4,2016). Although Hood
v. United States, 127 Fed. Cl. 192, previously decided by this court, arose from different
facts, prior to filing those actions Mr. Hood had filed similar claims in another District Court
and those claims were then on appeal at the United States Court of Appeals for the Sixth
Circuit when Mr. Hood initiated the action before the undersigned in the United States
Court of Federal Claims. This court found that, because Mr. Hood's earlier-filed case in
another District Court was on appeal, this court did not have jurisdiction to consider Mr.
Hood's claims which were based on the same operative facts. Mr. Hood appealed this
court's decision, and the Federal Circuit held that "the Court of Federal Claims conectly
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," therefore, the Federal Circuit
agreed "that the court lacked subject matter jurisdiction under S 1500.' Hood v. United
States, 2016 WL 6543529, at *3 (Fed. Cir. Nov. 4,2016\. On appeal, the Federal Circuit
held that "[d]etermining whether $ 1500 applies involves two inquiries: '(1) whether there
is an earlier-filed "suit or process" pending in another court, and, if so, (2) whether the
2 As noted above, plaintiffs appeal of the Western Michigan District Court's dismissal
remains pending. See Hood v. Office of Pers. Mqmt., No. 16-2276 (6th Cir. Jan.17,2017\.
11
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."'Hood v. United States, 2016
WL 6543529, at .3 (Fed. Cir. Nov. 4,2016) (citing Brandt v. United States, 710 F.3d 1369,
1374 (Fed. Cir. 2013)). The Federal Circuit concluded that because plaintiffls complaint
at the United States Court of Federal Claims were based on the same set of operative
facts as plaintiffs pending appeal to the United States Court of Appeals for the Sixth
Circuit, plaintiff's claims were statutorily-barred by 28 U.S.C. S 1500.
Plaintiffs duplicative filings across the federal judicial system, coupled with the
evidence that he is, or should be, aware of the statutory limitations of 28 U.S.C. S 1500,
as explained to him by this court and by the United States Court of Appeals for the Federal
Circuit, lays bare his intentional and time-wasting scheme to forum shop and tax the
judiciary in an effort to obtain an outcome he deems favorable. In Hood v. United States,
127 Fed. Cl. 192, a case that involved different allegations than the above-captioned
case, this court issued sanctions against Mr. Hood based on his repeated frivolous and
baseless pleadings. Given the prior decisions of this court and of the United States Court
of Appeals forthe Federal Circuit, as well as the explanation included in this decision, Mr.
Hood has been duly informed that, pursuant to 28 U.S.C. S 1500, neither this court nor a
federal District Court can exercise jurisdiction over his claims when they are based on the
same set of operative facts as an earlier-filed complaint pending before another District
Court, or on appeal.
CONCLUSION
For the reasons discussed above, plaintiffs complaint is DISMISSED. The Clerk
of the Court is directed not to file future complaints in which Mr. Hood asserts allegations
that arise from the same facts set forth in Case Number 16-570 in this court.
IT IS SO ORDERED.
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MARIAN BLANK HORN
Judge
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