BROWN v. CARTER

Filing 34

MEMORANDUM OPINION accompanying the final order issued separately this day. Signed by Chief Judge Beryl A. Howell on 12/7/18.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VICTOR IVY BROWN,

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Plaintiff,
v.
JAMES MATTIS,
Defendant.

Civil Action No. 16-1025 (BAH)
Chief Judge Beryl A. Howell

MEMORANDUM OPINION
The pro se plaintiff, Victor Ivy Brown, sues the Secretary of Defense for money damages
and declaratory relief. This action is “spawned” from the plaintiff’s prior employment
discrimination case in this court, Compl. at 2, ECF No. 1 (citing Brown v. Dep’t of the Navy, No.
86-cv-1582 (closed Oct. 1, 1987) (“Brown I”), where he prevailed against the Department of
Navy and was awarded injunctive relief and “gross damages of $121,706.64,” Brown v. United
States, No. 14-1185T, 2015 WL 4450109, at *1 (Fed. Cl. July 17, 2015). In this case, the
plaintiff “seeks to recover the sum of $11,849.24” that the defendant allegedly “seized” from the
award “and then used . . . to pay taxes and penalties for which the [p]laintiff was not obligated.”
Compl. at 2. The plaintiff “further seeks compensatory damages for loss of the use of said
monies retroactive to 7 April 1988.” Id.
Pending is the Defendant’s Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), ECF No. 19, and the Plaintiff’s Opposition and Motion to
Compel an Answer from the defendant, ECF Nos. 29, 30, respectively. For the reasons
explained below, the defendant’s motion is granted, the plaintiff’s motion is denied, and this case
is dismissed for lack of subject matter jurisdiction.
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I. BACKGROUND
A. Procedural Posture
Since 2002, the plaintiff has filed a number of unsuccessful actions in this Court and in
the U.S. Court of Federal Claims to recover $2,727 that he claimed was “erroneously deducted
from his back pay award.” Brown, 2015 WL 4450109, at *1; see id. at 2 (noting that “[t]his suit
is the latest iteration of plaintiff’s quest for the return of the $2,727.00”); Brown v. Dalton, 312
F.R.D. 239, 244 (D.D.C. 2015) (“Plaintiff has been litigating his claims regarding the 1987 tax
withholding since at least 2002.”) (citing Brown v. Dep’t of the Navy, No. 86-1582 (D.D.C. Aug.
11, 2003)). On September 21, 2012, this Court dismissed the plaintiff’s complaint on res
judicata grounds, finding:
Without question, the plaintiff’s claim to $2,727.00 arises from the judgment
entered in his favor in the prior Title VII suit against the Department of the Navy.
The plaintiff’s opportunity to litigate the amount owed to him pursuant to that
judgment—and the $2,727.00 allegedly withheld from him and erroneously paid
in Social Security taxes on his behalf in 1988—has come and gone.
Brown v. Mabus, 892 F. Supp. 2d 115, 118 (D.D.C. 2012), aff'd, 548 Fed. App’x 623 (D.C. Cir.
2013) (per curiam) (on appeal from No. 11-cv-1922 (BAH)). The United States Court of
Appeals for the District of Columbia Circuit affirmed the dismissal order, stating:
Even assuming, without deciding, that appellant’s claim did not accrue until the
date of discovery, and even assuming, without deciding, that equitable tolling
applies, appellant did not file his complaint within the period specified by 28
U.S.C. 2401(a). We reject appellant’s argument that his claim did not accrue
until March 9, 2010, because he was on notice of his claims by 2001, or by 2004
at the latest. Moreover, because appellant’s complaint did not seek relief under
Title VII, this case does not implicate the interaction between the limitations
period set out in § 2401(a) and the period set out in 42 U.S.C. § 2000e-16(c). In
any event, the complaint was not timely filed even under the latter provision.
Brown, 548 Fed. App’x at 624.

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Almost three years later, on March 9, 2016, the plaintiff lodged with the Clerk of Court
the instant 40-page complaint asserting, in Counts I through XI, myriad claims regarding the
defendant’s alleged “illegal seizure of all of the monies at issue” that were used “to pay taxes and
penalties on behalf of the Plaintiff” back in 1988, Compl. at 38, and expressly conceding that, for
some claims at least, he “hereby repeats the argument which he sought to pursue in the previous
courts to which he has brought this matter,” id.; see also id. at 39 (stating that he “merely repeats
the argument which he uttered before this Court in CA 86-cv-1582”). On May 31, 2016, the
Court dismissed the case sua sponte on the grounds that the complaint was barred by res judicata
and by time. See Mem. Op. at 2, ECF No. 4. The plaintiff appealed to the D.C. Circuit. On
appeal, the defendant “argue[d] that a 2003 district court decision denying a contempt motion
serve[d] as the res judicata bar.” Brown v. Mattis, 701 Fed. App’x 3 (D.C. Cir. Oct. 12, 2017)
(per curiam). The D.C. Circuit rejected that argument, and it could not discern “which claims the
[district] court [had] deemed untimely.” Id. Therefore, it remanded the case for this Court “to
consider in the first instance the timeliness and other arguments” of the parties. Id. The case
was then reassigned to the undersigned Judge on January 26, 2018.
B. Factual Posture
The plaintiff alleges the following relevant facts, which also formed the basis of Civil
Action No. 11-1922. See Brown, 892 F. Supp. 2d at 115. By check dated April 7, 1988, in the
amount of $80,839.30, the defendant “paid the bulk of the monies ordered to be paid” in Brown
I. Compl. at 10, ¶ 5. At that time, the defendant provided the plaintiff “with detailed
computations indicating that the gross amount of the damages . . . was $121,706.64.” Id. ¶ 6.
The “damage award . . . covered the period” between December 27, 1982 and January 31, 1988,
for back pay. Compl. at 3.

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In 1997, the plaintiff “was first notified by the Social Security Administration that [the
Department of Navy] had deducted $2,727.00 from the back-pay award in 1988.” Id. at 5.
According to the plaintiff, the defendant “had no authority to levy Social Security taxes against
[him]” for that period; he “was not liable” for said taxes; and the Internal Revenue Service
Commissioner confirmed in a letter dated February 19, 2002, that he “was not obligated to pay
Social Security taxes for the tax year 1988.” Compl. at 10, ¶¶ 8-10. In August 2001, upon
examining “all of [his] pay statements” dating from April 9, 1988, the plaintiff “observed that the
[Department of Navy] had deducted $9,122.24 from the . . . back pay award, purportedly for the
[p]laintiff having been indebted to the Government” before April 1988. Compl. at 4, 5.
Allegedly, in a document dated December 10, 2015, which the plaintiff has not supplied, the
Department of Treasury “notified the [p]laintiff that the government has no record of the
[p]laintiff ever having been indebted to the Government.” Id. at 4. Hence, the plaintiff’s claim
to a total of $11,849.24.
The plaintiff’s causes are captioned as follows:
Count I: Violation of 42 U.S.C. 2000e-5(f)(3) and 42 U.S.C. 2000e-3(a)
Retaliation
Count II: Violation of 42 U.S.C. 2000e-5(f)(3) and 42 U.S.C. 2000e-3(a)
Retaliation
Count III: Violation of 42 U.S.C. § 1983 and The Constitution, Amendment
IV/Illegal Seizure/Deprivation of right of possession
Count IV: Violation of 42 U.S.C. § 1983 and The Constitution, Amendment
IV/Illegal Seizure/Deprivation of right of possession
Count V: Violation of 42 U.S.C. § 1983 and The Constitution/Amendment IV/
Deprivation of Due Process
Count VI: Violation of 42 U.S.C. § 1983 and The Constitution/Amendment IV/
Deprivation of Due Process

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Count VII: Violation of 42 U.S.C. § 1983 and The Constitution/Amendment I/
Deprivation of right of free speech
Count VIII: Violation of 42 U.S.C. § 1983 and The Constitution/Amendment I/
Deprivation of right of free speech
Count IX: Violation of Title 5, U.S.C.: Willful failure to follow administrative
procedure: abuse of discretion
Count X: Violation of The Constitution/Art. 1, sec. 8/Illegal Taxation
Count XI: Violation of The Constitution/Amendment XVI/Illegal Taxation
The plaintiff purports to “transfer[ ]” counts IX, X and XI “from CA 11-cv-1922.” Compl. at 3031.
II. APPLICABLE LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of
demonstrating the court’s subject matter jurisdiction over the claims asserted. Arpaio v. Obama,
797 F.3d 11, 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited jurisdiction,’ possessing
‘only that power authorized by Constitution and statute.’ ” Gunn v. Minton, 568 U.S. 251, 256
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed,
federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC,
548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider
whether the constitutional and statutory authority exist for us to hear each dispute,’ ” James
Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v.
Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over
a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006); Fed. R.
Civ. P. 12(h)(3) (requiring dismissal of action “at any time” the court determines it lacks subject
matter jurisdiction).

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When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “ ‘construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005)). The court need not accept inferences drawn by the plaintiff, however, if those
inferences are unsupported by facts alleged in the complaint or amount merely to legal
conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Moreover, in evaluating subject matter jurisdiction, the court “may consider materials
outside the pleadings.” Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016);
Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Herbert, 974 F.2d at 197
(in disposing of motion to dismiss for lack of subject matter jurisdiction, “where necessary, the
court may consider the complaint supplemented by undisputed facts evidenced in the record, or
the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”).
Where, as here, a defendant files a motion to dismiss under both Rule 12(b)(1) and Rule
12(b)(6), the Rule 12(b)(1) grounds for dismissal are examined first “as subject matter
jurisdiction presents a threshold question.” El Paso Natural Gas Co. v. United States, 750 F.3d
863, 874 (D.C. Cir. 2014) (citing Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) and
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).
III. DISCUSSION
Consistent with the D.C. Circuit’s remand, the defendant argues, among other things, that
this action is untimely no matter the causes of action the plaintiff has asserted. See Def.’s Mem.
at 9-12. The defendant is correct. Specifically, if jurisdiction could properly be exercised in this

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case, as this Court found in 2012, the plaintiff’s opportunity to litigate the amount owed to him
pursuant to the judgment rendered in the 1986 case “has come and gone.” Brown, 892 F. Supp.
2d at 118. In reviewing that decision, the Court of Appeals agreed, concluding in 2013 that the
complaint seeking to recover the same $2,727.00 forming part of the basis of this action “was not
timely filed” under either 28 U.S.C. § 2401 (“Time for commencing action against United
States”) or 42 U.S.C. § 2000e-16(c) (“[T]ime for bringing” Title VII employment discrimination
claims against the federal government). Similarly, the plaintiff alleges that he became aware of
the additional deduction of $9,122.24 in August 2001, Compl. at 5, fifteen years before the
commencement of this action. Notwithstanding the obvious mismatch between the listed causes
of action and the requested relief, the Court clarifies for the sake of finality that Counts I through
VIII of the complaint are time-barred for the simple reason that they are part and parcel of the
1986 case. Therefore, the Title VII counts (I and II) are untimely under the Act’s 90-day
limitations period. 42 U.S.C. § 2000e-16(c). The constitutional counts (III – VIII) are untimely
under the general six-year limitations period, which is a “jurisdictional condition attached to the
government’s waiver of sovereign immunity[.]” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52,
55 (D.C. Cir. 1987). Finally, the plaintiff’s purported “transfer” of counts IX, X and XI from
dismissed case “CA 11-cv-1922,” Compl. at 30-31, is inapposite and otherwise foreclosed by res
judicata.
In any event, this Court is deprived of subject matter jurisdiction under the Tucker Act
and, consequently, “[w]ith the case in this posture, the court [can] no more rule in favor of the
government than against it.” Simpkins v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997). The
Tucker Act “was designed ‘to give the people of the United States what every civilized nation of
the world has already done—the right to go into the courts to seek [monetary] redress against the

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Government for their grievances[.]’ ” Howard v. Pritzker, 775 F.3d 430, 436 (D.C. Cir. 2015)
(quoting United States v. Mitchell, 463 U.S. 206, 213-14 (1983)). Indisputably, the plaintiff is
seeking only to recover monies from the government that he believes he is owed from the
judgment in Brown I. He has not actually pleaded a new cause of action under Title VII, and
none of his enumerated counts “sound[s] in tort.” 28 U.S.C. § 1491(a)(1) and § 1346 (a)(2). 1
This leaves the Tucker Act and its jurisdictional limitations.
The Tucker Act grants the district court concurrent jurisdiction with the U.S. Court of
Federal Claims over claims “not exceeding $10,000.” 28 U.S.C. § 1346(a)(2). Claims over that
amount are the exclusive province of the Court of Federal Claims. Palacios v. Spencer, 906 F.3d
124, 127 (D.C. Cir. 2018). The plaintiff’s claim to $11,849.24 deprives this Court of jurisdiction
and therefore is dismissed. See id. at 126-27 (affirming district court’s dismissal for want of
jurisdiction where “[t]he complaint expressly demanded the entry of a judgment including an
award of back pay exceeding $10,000”) (citations omitted)); Chandler v. Fed. Bureau of Prisons,
226 F. Supp. 3d 1, 7 (D.D.C. 2016) (“Only the Court of Federal Claims has jurisdiction over a
claim in excess of $10,000[.]” (citing 28 U.S.C. § 1491 (a)(2)).
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss for lack of subject matter
jurisdiction is granted, and the plaintiff’s motion to compel is denied as moot. A separate Order
consistent with this Memorandum Opinion will be filed contemporaneously.
/s/

DATE: December 7, 2018

Beryl A. Howell
CHIEF JUDGE

The Tucker Act, ch. 359, 24 Stat. 505 (1887), is codified as amended in scattered sections of Title 28 of the United
States Code. The Act authorizes the appropriate court “to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon
any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1) and § 1346(a)(2).

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