Huff v. At&T Inc. et al

MOTION to Dismiss for Failure to State a Claim

D. Md.May 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES EDWARD HUFF, Plaintiff, v. AT&T INC., et al., Defendants. Case No. 1:16-cv-03670-GLR DEFENDANTS’ MOTION TO DISMISS Defendants AT&T Inc. (f/k/a SBC Communications, Inc.), Southwestern Bell Telephone Company and Fidelity Workplace Services LLC (collectively, “Defendants”) 1 , through undersigned counsel, and pursuant to Rules 8, 12(b)(6) and 41(b) of the Federal Rules of Civil Procedure, respectfully request entry of an order dismissing the pro se Plaintiff James Edward Huff’s (“Plaintiff”) Complaint (ECF No. 1) with prejudice.2 As explained more fully in the accompanying Memorandum of Points and Authorities, the Court should dismiss the Complaint because: (1) it does not provide notice of the claim or claims purportedly asserted; (2) it fails to set forth facts sufficient to state a claim to relief that is plausible on its face; and (3) Plaintiff fell short of complying with the Court’s May 9, 2017 Memorandum (ECF No. 19), which ordered Plaintiff to file a more definite statement of the allegations in his Complaint. 1 In 2005, SBC Communications, Inc. acquired AT&T Corp. and changed SBC Communications, Inc.’s name to AT&T Inc. 2 Plaintiff, who is appearing pro se, is advised that the failure to respond to a dispositive motion may result in the district court granting the motion and dismissing the case. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Case 1:16-cv-03670-GLR Document 21 Filed 05/30/17 Page 1 of 2 2. Dated: May 30, 2017 Respectfully submitted, LITTLER MENDELSON, P.C. /s/ Ethan D. Balsam Ethan D. Balsam (Bar No. 18761) ebalsam@littler.com 815 Connecticut Avenue, N.W., Suite 400 Washington, DC 20006 Tel: 202.842.3400 Fax: 202.842.0011 Counsel for Defendants AT&T Inc. (f/k/a SBC Communications, Inc.), Southwestern Bell Telephone Company and Fidelity Workplace Services LLC CERTIFICATE OF SERVICE I hereby certify that, on May 30, 2017, a copy of the foregoing Defendants’ Motion to Dismiss, Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and proposed Order were served by first class mail, postage prepaid, upon the following: James Edward Huff 706 Vine Street Baltimore, Maryland 21201 Pro Se Plaintiff /s/ Ethan D. Balsam Ethan D. Balsam Case 1:16-cv-03670-GLR Document 21 Filed 05/30/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES EDWARD HUFF, Plaintiff, v. AT&T INC., et al., Defendants. Case No. 1:16-cv-03670-GLR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Defendants AT&T Inc. (f/k/a SBC Communications, Inc.), Southwestern Bell Telephone Company and Fidelity Workplace Services LLC (collectively, “Defendants”) 1 , through undersigned counsel, and pursuant to Rules 8, 12(b)(6) and 41(b) of the Federal Rules of Civil Procedure, hereby submit this Memorandum of Points and Authorities in Support of their Motion to Dismiss. For the reasons set forth below, Defendants request that their Motion be granted, and the Complaint dismissed with prejudice. I. INTRODUCTION AND BACKGROUND On November 9, 2016, Plaintiff James Edward Huff (“Plaintiff”), who is proceeding pro se, commenced the instant action for reasons that remain beyond comprehension. According to the Civil Cover Sheet prepared by Plaintiff, he purports to bring this action pursuant to the Americans with Disabilities Act (“ADA”) based on “identify theft to justify a termination.” (ECF No. 1-1). The Complaint, however, makes absolutely no mention of the ADA or identity theft. (Compl. passim, ECF No. 1). Rather, the substantive allegations in the Complaint vaguely 1 In 2005, SBC Communications, Inc. acquired AT&T Corp. and changed SBC Communications, Inc.’s name to AT&T Inc. Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 1 of 9 2. reference an “administrative court” proceeding, a “termination conspiracy attempt” and Plaintiff’s purported career and personal accomplishments dating back to the 1970s. (Compl. 6- 7). Due to the perplexing nature of the Complaint, Defendants filed a Motion for More Definite Statement, arguing that “the allegations contained in the Complaint are unintelligible, vague and/or ambiguous, which makes responding to the Complaint in any meaningful way extremely difficult, if not impossible.” (ECF No. 5-1 at 1).2 The Court agreed, and on May 9, 2017, ordered Plaintiff “to file a more definite statement of the allegations in his Complaint . . . .” (Mem. 2, ECF No. 19). On May 15, 2017, Plaintiff filed the antithesis of a more definite statement of the allegations in his Complaint. (See ECF No. 20). In fact, the document (hereinafter referred to as “Response to May 9 Order”) Plaintiff filed does not address (or come close to correcting) the pleading deficiencies outlined in Defendants’ Motion for More Definite Statement; rather, it is rife with convoluted, largely unintelligible and, at times, paranoiac statements wholly unconnected to viable claims. (Id.) In addressing the ‘“ADA’ filing” for example, Plaintiff states: I’ve given this court a glimpse into the legal parameters leading up to the ‘ADA’ filings; which shows the same thresh holds of yesterday are still being violated today. What’s the violations? All of the above and more. It also shows criminal intent to divert huge sums of revenue, while incriminating the uninformed. They are treating us as ‘Babes’. How so? We are responsible for reporting deceptions and embezzlements on our tax returns each year, which I’ve done, until 2008, when an alleged auditor removed deductions from our tax return and took the plaintiff’s off the tax return and 2 While Defendants’ Motion for More Definite Statement was pending, Plaintiff filed three bizarre, nonsensical and only minimally intelligible motions. (See ECF Nos. 14, 16 and 17). On May 9, 2017, the Court denied Plaintiff’s Motion for Release of Funds (ECF No. 14). (Mem. 1 n.3). Plaintiff’s remaining frivolous motions, viz., Motions to be Placed into Administrative Custody (ECF No. 16) and to Reveal Cloning (ECF No. 17) remain pending, but should be denied. (See ECF No. 18). Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 2 of 9 3. giving his wife a new tax bill from $0 to thousands owed the Government. What a frame up! But the threat of going to jail by them impostures, has had her living in fear, of their tactics. So, we have been living as strangers even since that happened. Also, we’re being punished because of our faith, by them removing our gifts to God. And we do not live in Russia. How sad! (Id. at 2). Plaintiff then briefly mentions “identity theft” in the following bewildering manner: Moreover, this computerize model of attorneys, is only seeking information to prevent showing the courts, that they have not stolen the plaintiff’s identity, but no evidence from the defendants. Why? They’re using computerized programs. Am I speaking to a real attorney? No. Also, they haven’t showed him his Government credentials, when he speaks about such programs as ‘LEAP,’ A $750,000 Grant. Why? The computer can’t do research, only humans. (Id.) The remainder of the Response to May 9 Order is a rambling and largely unintelligible narrative referencing, among many other seemingly unrelated subjects, Plaintiff’s medical discharge from the military, a so-called “Constructive Service Doctrine” and a “Social Security’s [sic] award letter from 1991[.]” (Id.)3 According to Plaintiff, he seeks “relief from this military breach; regarding this case of $2.2 Billion Dollars; however, he will consider the reinstated amount of $848,628,339.00, in addition to the $1.6 million advance.” (Id. at 3). Simply stated, the Response to May 9 Order, in conjunction with the Complaint allegations, see, e.g., Givens v. Main Street Bank, et al., 2009 U.S. Dist. LEXIS 35313, at *11 (N.D. W. Va. Apr. 24, 2009) (treating response to motion for definite statement as 3 The Court may take judicial notice of “relevant facts from the public record at the pleading stage” so long as it “construe[s] such facts in the light most favorable to the plaintiff.” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015). This Court has held that “[m]atters of public record include ‘items appearing in the record’ of a [federal] court case.” Constructure Mgmt. v. Berkley Assur. Co., Civil Action No. GLR-16-0284, 2017 U.S. Dist. LEXIS 29354, at *3 n.4 (D. Md. Mar. 2, 2017). Here, Defendants request that the Court take judicial notice of Plaintiff’s prior complaints against SBC Communications, Inc. and the Department of the Army, and the disposition of same, as it could be that Plaintiff is attempting to litigate claims against the Defendants that prior courts have already found to be without merit. See, e.g., James E. Huff v. Department of the Army, 93-0876-CV-W- 1 (W.D. Mo. Sept. 21, 1993) (Civil Complaint), attached as Exhibit 1 hereto; James E. Huff v. SBC Communications, Inc., S-99-CV-3133 (D. Md. Oct. 15, 1999) (Complaint for Employment Discrimination), attached as Exhibit 2 hereto; James E. Huff v. SBC Communications, Inc., S-99-CV-3133 (D. Md. Oct. 25, 1999) (Memorandum and Order), attached as Exhibit 3 hereto; James E. Huff v. United States Dep’t of the Army, 508 F. Supp. 2d 459 (D. Md. 2007), attached as Exhibit 4 hereto, aff’d 2010 U.S. App. LEXIS 16598 (4th Cir. Aug. 4, 2010). Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 3 of 9 4. “supplementing rather than supplanting [the plaintiff’s] original complaint[]”), do not provide Defendants with notice of the claim (or claims) asserted and, in particular, fail to identify the alleged act or omission by Defendants (either collectively or individually) that purportedly caused damage or harm to Plaintiff. Based on the Complaint’s fundamental and ostensibly incurable defects, Defendants’ Motion should be granted, and the Complaint dismissed with prejudice. II. ARGUMENT A. The Complaint Fails to Set Forth a Plausible Claim for Relief. Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed R. Civ. P. 8(a)(2). Moreover, each “allegation must be simple, concise and direct.” Fed R. Civ. P. 8(d)(1). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To satisfy the minimal requirements of Rule 8(a)(2), and overcome a Rule 12(b)(6) motion, the complaint must contain factual allegations sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. In other words, it must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action. Id. at 556. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint has not shown that “the pleader is entitled to relief.” Wright v. Carroll County Bd. of Educ., Case No. 11-3103, 2013 U.S. Dist. LEXIS 120892, at *18 (D. Md. Aug. 26, 2013) (quoting Iqbal, 556 U.S. at 679). Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 4 of 9 5. Complaints filed by pro se plaintiffs are “to be liberally construed . . . and a pro se complaint, however, inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Betts v. Montgomery College, Case No. 12-3802, 2013 U.S. Dist. LEXIS 115996, at *15-16 (D. Md. Aug. 16, 2013) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, “even a pro se complaint must meet a minimum threshold of plausibility.” Id. (quoting Hawkins v. Hairston, Case No. 12-1366, 2012 U.S. Dist. LEXIS 162113, at *2 (D. Md. Nov. 8, 2012)). In fact, “[w]hile pro se complaints may ‘represent the work of an untutored hand requiring special judicial solicitude’ a district court is not required to recognize ‘obscure or extravagant claims defying the most concerted efforts to unravel them.’” Weller v. Dep’t of Social Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985), cert denied, 475 U.S. 1088 (1986)). The Court has already held that “[Plaintiff’s] vague and almost entirely nonsensical [Complaint] allegations fail to provide enough information for Defendants to frame an adequate responsive pleading.” (Mem. 2). Thus, the Complaint standing alone defies the fundamental purpose of Rule 8, which is give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether res judicata is applicable. Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977); see also Beatty v. BAC Home Loans Servicing, LP, Civil Action No. GLR-12-1148, 2012 U.S. Dist. LEXIS 119632, at *8-9 (D. Md. Apr. 23, 2012) (“Because the central purpose of the complaint is to provide the defendant ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests,’ the plaintiff’s legal allegations must be supported by some factual basis sufficient to allow the defendant to prepare a fair response.” (quoting Twombly, 550 U.S. at 556 n.3). Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 5 of 9 6. Likewise, Plaintiff’s rambling and largely unintelligible Response to May 9 Order does nothing to salvage his Complaint from dismissal. (See Resp. to May 9 Order, ECF No. 20) Instead of clarifying his Complaint allegations, as he was required to do, Plaintiff did the exact opposite. The Response to May 9 Order does not reasonably inform Defendants of the asserted causes of action; rather, it presents a series of random, fantastical and delusional scenarios with no discernible factual allegations from which a cause of action might be assembled. (Id.) In fact, Plaintiff does not sufficiently plead in the Response to May 9 Order a cause of action, nor does he provide any actual elements to a cause of action that would support the “$2.2 Billion Dollars” he is requesting as relief. (Id.) Because “[a] Court is not obliged to ferret through a complaint in search of viable claims[,]” and where “[t]he instant Complaint ‘places an unjustifiable burden on [D]efendants to determine the nature of the claim against them and to speculate on what their defenses might be’ and imposes a burden on the Court to sort out the factual basis for any claims fairly raised[,]” dismissal under Rule 8 is the appropriate result. Greene v. Colvin, 2015 U.S. Dist. LEXIS 179225, at *3-4 (D. Md. May 20, 2015) (quoting Holsey v. Collins, 90 F.R.D. 122, 123-24 (D. Md. 1981)). Therefore, Defendants request the dismissal of the Complaint without hesitation. See, e.g., Taylor v. Bd. of Educ., 2013 U.S. Dist. LEXIS 83753, at *2 (D. Md. June 14, 2013) (dismissing complaint for failing to comply with Rule 8 where “the convoluted narratives, together with the unsubstantiated conclusions, render[ed] the complaint incomprehensible.”) But, even if the Court were to look to the Civil Cover Sheet to determine the gravamen of Plaintiff’s Complaint (see Mem. 2 - “In his Civil Cover Sheet, [Plaintiff] indicates that he sues under the Americans with Disabilities Act (“ADA”) based on ‘identity theft to justify a termination[]”), dismissal is still warranted under Rule 12(b)(6). Sinclair v. Purnell, Civil Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 6 of 9 7. Action No. GLR-13-1735, 2014 U.S. Dist. LEXIS 111816, at *7 (D. Md. Aug. 13, 2014) (“Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted.”). First, Plaintiff does not identify any particular statutory or common law basis for an identity theft claim. (See Compl. passim; Resp. to May 9 Order). The federal identity theft statute, 18 U.S.C. § 1028, is criminal in nature and provides no private cause of action or civil remedy. Rahmani v. Resorts Int’l Hotel Inc., 20 F. Supp. 2d 932, 937 (E.D. Va. 1998), aff’d 182 F. 3d 909 (4th Cir. 1999). The same is true for the state identity theft statute. See Md. Code Ann., Crim. Law § 8-301; see also Sucklal v. MTGLQ, Investors LP, Civil No.: WDQ-10-1536, 2011 U.S. Dist. LEXIS 14264, at *14 (D. Md. Feb 14, 2011) (“Identity theft in Maryland is a crime, not a civil claim”). Accordingly, to the extent Plaintiff purports to bring a claim for identity theft, this claim must be dismissed. Second, Plaintiff altogether fails to plead any facts that would plausibly state a claim under the ADA. See Jeffries v. Wal-Mart Stores East, LP, 2016 U.S. Dist. LEXIS 95051 (D. Md. Jul. 11, 2016) (dismissing complaint and identifying the necessary elements to state a claim for failure to accommodate, retaliation and wrongful discharge under the ADA), aff’d 2016 U.S. App. LEXIS 18601 (4th Cir. Oct. 17, 2016); Robertson v. Foster, 2017 U.S. Dist. LEXIS 42921, at *11-13 (D. Md. Mar. 23, 2017) (dismissing complaint and identifying necessary elements to state a claim under Title III (public accommodations) of the ADA). Other than citing the ADA in his Civil Cover Sheet, Plaintiff provides no factual substantiation for a claim under that statute or, as applicable, that he exhausted administrative remedies. See Byington (Kennedy) v. NBRS Fin. Bank, 903 F. Supp. 2d 342, 348 (D. Md. 2012) (Russell, J.) (noting that “an individual cannot bring suit under the . . . ADA until he has exhausted the administrative process.”); see Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 7 of 9 8. also Ex. 3 at 3 (dismissing Plaintiff’s complaint against SBC Communications, and observing that “Mr. Huff does not state whether he filed a complaint with either the EEOC or the Maryland Human Relations Commission, and if so, when he received a right to sue letter. However, in light of the fact that his complaint concerns events which took place nearly ten years ago, it is clear that it is time barred.”). Accordingly, to the extent Plaintiff purports to bring a claim for disability discrimination, this claim too should be dismissed. B. Plaintiff’s Failure to Comply with the Court’s May 9 Order Warrants Dismissal of the Complaint. Rule 41(b) provides, in relevant part, that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b); see also Hodge v. Taylor Gas Co., 2005 U.S. Dist. LEXIS 47884, at *14 (D. Md. Dec. 5, 2005) (“The court may dismiss with prejudice a complaint that fails to state a claim upon which relief can be granted.”) (citing Fed R. Civ. P. 41(b)). In deciding whether Rule 41(b) dismissal is appropriate, courts consider: “(i) the degree of personal responsibility of the plaintiff; (ii) the amount of prejudice caused the defendant; (iii) the existence of a history of deliberately proceeding in a dilatory fashion, and (iv) the existence of sanctions less drastic than dismissal.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). However, “[a] District Court need not engage in a rigid application of [the foregoing] test when a litigant ignores an express warning that failure to comply with an Order will result in the dismissal of his claim.” Slep-Tone Entm’t Corp. v. Mainville, 2012 U.S. Dist. LEXIS 14223, at *5-6 (W.D.N.C. Feb. 7, 2012) (citing Ballard, 882 F.2d at 95-96). In granting Defendants’ Motion for More Definite Statement, the Court ordered Plaintiff “to file a more definite statement of the allegations in his Complaint within fourteen days of the date of this Order.” (Mem. 2) (emphasis added). Although Plaintiff partially complied with the Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 8 of 9 9. Court’s directive by filing a document within the timeframe prescribed by the Court, he did not file a more definite statement of the allegations in his Complaint. (See Resp. to May 9 Order passim). In fact, Plaintiff has yet to file anything with the Court that states a claim “‘clearly enough for the [D]efendants to know how to defend themselves.’” Jarvis v. Grady Mgmt., Inc., 2010 U.S. Dist. LEXIS 106395, at *9 (D. Md. Oct. 6, 2010), aff’d 2011 U.S. App. LEXIS 8990 (4th Cir. May 2, 2011). Under these circumstances, and in the absence of any semblance of a viable cause of action, the Court should dismiss Plaintiff’s Complaint with prejudice. III. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant its Motion in full and dismiss the Complaint in its entirety with prejudice. Dated: May 30, 2017 Respectfully submitted, LITTLER MENDELSON, P.C. /s/ Ethan D. Balsam Ethan D. Balsam (Bar No. 18761) ebalsam@littler.com 815 Connecticut Avenue, Suite 400 Washington, DC 20006 Tel: 202.842.3400 Fax: 202.842.0011 Counsel for Defendants AT&T Inc. (f/k/a SBC Communications, Inc.), Southwestern Bell Telephone Company and Fidelity Workplace Services LLC Case 1:16-cv-03670-GLR Document 21-1 Filed 05/30/17 Page 9 of 9 Case 1:16-cv-03670-GLR Document 21-2 Filed 05/30/17 Page 1 of 4 Case 1:16-cv-03670-GLR Document 21-2 Filed 05/30/17 Page 2 of 4 Case 1:16-cv-03670-GLR Document 21-2 Filed 05/30/17 Page 3 of 4 Case 1:16-cv-03670-GLR Document 21-2 Filed 05/30/17 Page 4 of 4 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 1 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 2 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 3 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 4 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 5 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 6 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 7 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 8 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 9 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 10 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 11 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 12 of 13 Case 1:16-cv-03670-GLR Document 21-3 Filed 05/30/17 Page 13 of 13 Case 1:16-cv-03670-GLR Document 21-4 Filed 05/30/17 Page 1 of 4 Case 1:16-cv-03670-GLR Document 21-4 Filed 05/30/17 Page 2 of 4 Case 1:16-cv-03670-GLR Document 21-4 Filed 05/30/17 Page 3 of 4 Case 1:16-cv-03670-GLR Document 21-4 Filed 05/30/17 Page 4 of 4 LEXSEE Caution As of: May 25, 2017 JAMES E. HUFF, Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY, Defendant. CIVIL NO. L-05-805 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND 508 F. Supp. 2d 459; 2007 U.S. Dist. LEXIS 67796 September 13, 2007, Decided SUBSEQUENT HISTORY: Affirmed by Huff v. United States Dep't of the Army, 2010 U.S. App. LEXIS 16598 (4th Cir. Md., Aug. 4, 2010) CASE SUMMARY: PROCEDURAL POSTURE: Pro se plaintiff former serviceman sued defendant, the U.S. Army, requesting back pay, disability and hospital benefits, and correction of his military records. He also alleged fraud against the Army, claiming that upon his 1970 discharge, he was told by Army officials that he would have to wait 20 years to file for compensation. The Army moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). OVERVIEW: The serviceman had sued the Army in 1993, alleging wrongful discharge in 1970, but the suit was dismissed. In the present suit he reasserted the 1993 claims and also alleged fraud. Under the Tucker Act, 28 U.S.C.S. § 1346, the serviceman's backpay claim fell within the jurisdiction of the Court of Federal Claims since it exceeded $ 10,000. However, the court declined to transfer the case because this claim was time-barred since it accrued at his discharge, and he did not file suit within the six year limitations period. Although a claim for disability retirement benefits did not accrue until a military board either denied the claim or refused to hear it, this claim was also time-barred because the serviceman asserted in his 1993 lawsuit that he had presented his claims to the Army Board for Correction of Military Records, but they were denied, and more than six years had elapsed. The serviceman's claims for benefits were outside the ambit of § 702 of the Administrative Procedure Act, 5 U.S.C.S. § 702, and his fraud claim failed because the jurisdictional grant of the Federal Tort Claims Act, 28 U.S.C.S. § 2680(h), did not extend to claims arising out of misrepresentation or deceit. OUTCOME: The court granted the Army's motion and dismissed the complaint. CORE TERMS: military, disability, sovereign immunity, statute of limitations, jurisdictional, Tucker Act, tort claims, correction, Tucker Act's, causes of action, judicial review, subject matter jurisdiction, administrative procedures, discharged, accrue, wait, Little Tucker Act, present action, wrongful discharge, limitations period, misrepresentation, reinstatement, construe, monetary, enlistment, wrongfully, reinstate, Act FTCA, disability retirement benefits, reasons stated LexisNexis(R) Headnotes Page 1 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 1 of 7 Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > Summary Judgment > Motions for Summary Judgment > General Overview Evidence > Inferences & Presumptions > Presumptions > General Overview Evidence > Procedural Considerations > Burdens of Proof > Allocation [HN1]On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), a plaintiff has the burden of proving that subject matter jurisdiction exists. In reviewing a motion to dismiss in which a defendant challenges the veracity of a plaintiff's jurisdictional allegations, a court may look beyond the complaint and determine if there are facts to support those allegations. A trial court may consider evidence by affidavit, depositions or live testimony without converting the process into one for summary judgment. No presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts will not preclude a trial court from evaluating for itself the merits of jurisdictional claims. A court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements Evidence > Inferences & Presumptions > Presumptions > General Overview Governments > Courts > Authority to Adjudicate [HN2]Federal courts are of limited subject matter jurisdiction, and as such there is no presumption that a court has jurisdiction. The facts establishing jurisdiction must be affirmatively alleged in a plaintiff's complaint. Fed. R. Civ. P. 8(a)(1) requires that pleadings setting forth a claim for relief provide a short plain statement of the grounds upon which a court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds to support it. Fed. R. Civ. P. 8(a)(1). Civil Procedure > Federal & State Interrelationships > Sovereign Immunity > General Overview Civil Procedure > Federal & State Interrelationships > Sovereign Immunity > Waiver Governments > Federal Government > Claims By & Against Torts > Public Entity Liability > Immunity > Sovereign Immunity [HN3]Where a plaintiff is attempting to sue the United States, he must allege an unequivocal waiver of sovereign immunity. Such waivers may not be implied, and must be strictly construed in favor of the sovereign. Civil Procedure > Parties > Self-Representation > Pleading Standards [HN4]A lower standard of pleading is generally afforded to pro se litigants. Administrative Law > Sovereign Immunity Civil Procedure > Jurisdiction > Jurisdictional Sources > Statutory Sources Governments > Federal Government > Claims By & Against [HN5]The Tucker Act, 28 U.S.C.S. §§ 1346, 1491, provides the exclusive basis of jurisdiction over non-tort monetary claims against the United States. Administrative Law > Sovereign Immunity Civil Procedure > Jurisdiction > Jurisdictional Sources > Statutory Sources Governments > Courts > Courts of Claims Governments > Federal Government > Claims By & Against Governments > Legislation > Statutes of Limitations > Time Limitations [HN6]Pursuant to the so-called "Little Tucker Act," 28 U.S.C.S. § 1346(a)(2), the district courts share original jurisdiction with the United States Court of Federal Claims over actions where the amount in controversy does not exceed $ 10,000. In actions exceeding this amount, the Court of Federal Claims has exclusive jurisdiction. When a claim exceeding $ 10,000 is filed in district court, a court has authority to transfer the action to the Court of Federal Claims pursuant to 28 U.S.C.S. § 1631. All claims under the Tucker Act are subject to a six-year statute of limitations, 28 U.S.C.S. § 2501. This statute is jurisdictional in nature and, as an express limitation on the Tucker Act's waiver of sovereign immunity, cannot be waived. 508 F. Supp. 2d 459, *; 2007 U.S. Dist. LEXIS 67796, ** Page 2 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 2 of 7 Administrative Law > Sovereign Immunity Governments > Federal Government > Claims By & Against Governments > Legislation > Statutes of Limitations > Time Limitations Labor & Employment Law > Wrongful Termination > Remedies > Backpay [HN7]As a general matter, a cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred to fix the government's alleged liability, entitling the claimant to demand payment and sue here for his money. A cause of action for backpay accrues at the time of a plaintiff's discharge. Where a plaintiff does not file suit within the six-year period prescribed in 28 U.S.C.S. § 2501, he has lost all rights to sue for the loss of pay stemming from the challenged discharge. Governments > Federal Government > Claims By & Against Governments > Legislation > Statutes of Limitations > Time Limitations Military & Veterans Law > Servicemembers > Retirement [HN8]Claims of entitlement to disability retirement pay generally do not accrue until the appropriate military board either finally denies such a claim or refuses to hear it. When, however, a serviceman has actual or constructive notice of his disability prior to discharge, his failure to request a board hearing upon his discharge triggers the statute of limitations. Administrative Law > Sovereign Immunity [HN9]Section 702 of the Administrative Procedure Act (APA) constitutes a limited waiver of sovereign immunity, authorizing judicial review of final agency action in claims seeking relief other than money damages. 5 U.S.C.S. § 702. Pursuant to § 704 of the APA, however, the application of section 702 is limited to claims for which there is no other adequate remedy in a court. 5 U.S.C.S. § 704. Torts > Public Entity Liability > Liability > Federal Tort Claims Act > Exclusions From Liability > General Overview Torts > Public Entity Liability > Liability > Federal Tort Claims Act > Jurisdiction [HN10]The jurisdictional grant provided by the Federal Tort Claims Act does not extend to claims arising out of misrepresentation or deceit. 28 U.S.C.S. § 2680(h). Governments > Federal Government > Claims By & Against Governments > Legislation > Statutes of Limitations > Time Limitations Torts > Public Entity Liability > Liability > Federal Tort Claims Act > Procedural Requirements [HN11]Claims under the Federal Tort Claims Act are subject to a two-year statute of limitations, 28 U.S.C.S. § 2401, rather than the default six-year period generally applicable to suits against the United States. 28 U.S.C.S. § 2501. COUNSEL: [**1] James E. Huff, Plaintiff, Pro se, Baltimore, MD. For United States Department of the Army, Defendant: Allen F Loucks, LEAD ATTORNEY, Office of the United States Attorney, Baltimore, MD. JUDGES: Benson Everett Legg, Chief Judge. OPINION BY: Benson Everett Legg OPINION [*461] MEMORANDUM Pro se Plaintiff James E. Huff ("Huff" or "Plaintiff") initiated this action in April 2005 against the United States Department of the Army ("the Army"), requesting back pay, disability and hospital benefits, and correction of his military records. Now before the Court is the Army's Motion to Dismiss. Because the briefs adequately present the issues, no hearing is necessary. See Local Rule 105(6) (D. Md. 2004). For the reasons stated herein, the Army's motion is GRANTED pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. I. Facts Huff's filings are difficult to understand. It appears that he entered into a three-year enlistment contract with the Army in 1970, but was discharged later that year, apparently for medical reasons. (Am. Compl. P 3-5). 1 In September 1993, Huff sued the Army in the United States District Court for the Western District of Missouri, 508 F. Supp. 2d 459, *; 2007 U.S. Dist. LEXIS 67796, ** Page 3 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 3 of 7 alleging that he was wrongfully [**2] discharged and seeking correction of his military records. 2 His complaint averred that he had presented his claims to the Army Board for Correction of Military Records in August 1993, but he was denied relief "for lack of evidence[.]" 3 Ultimately, the District Court dismissed Huff's complaint without prejudice for failure to tender the required filing fee. 4 1 The Court will construe Plaintiff's "Motion to Respond" as an amended complaint. 2 See 4:93-cv-00876-DW (W.D. Mo. Sept. 21, 1993). 3 Id. 4 See id. (W.D. Mo. Dec. 14, 2003). Almost 12 years later, Huff filed the present action on April 21, 2005. As he did in 1993, he alleges that he was wrongfully discharged, that he was denied compensation and benefits for a service connected disability, and that his military records are inaccurate. (Am. Compl. P 1). He also adds two new claims: first, he alleges that, upon his discharge in 1970, he was told by the Army that he would have to wait 20 years to file for compensation. (Compl., P 3). Second, he asserts that he was provided certain hospital benefits following his discharge, which were wrongfully taken away when he filed for compensation in 1999. (Id.) In light of these allegations, Huff [**3] states that he is bringing causes of action for wrongful discharge, reinstatement of military benefits, and fraud. (Am. Compl. P 1.) The Army has moved to dismiss Huff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). After the Army filed its motion, Huff filed a "Motion to Proceed Pro Se," which the Court will construe as a response. The Army has filed a reply. 5 According to the Army, Plaintiff's complaint fails to establish a valid jurisdictional basis or waiver of sovereign immunity. The Army further alleges that Huff's claims are barred by the statute of limitations. 5 After the Army filed its reply, Huff filed a "motion to reinstate," in which he asks to be reinstated into the Army. Although the Court will consider this filing to the extent that it helps clarify Huff's factual contentions, it will DENY the motion. II. Standard of Review [HN1]On a motion to dismiss pursuant to Rule 12(b)(1), "the plaintiff has the burden of [*462] proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In reviewing a motion to dismiss in which the defendant challenges the veracity of the plaintiff's [**4] jurisdictional allegations, the Court may look beyond the complaint and determine if there are facts to support those allegations. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The trial court may consider "evidence by affidavit, depositions or live testimony without converting the process into one for summary judgment." Id., see also Star Scientific Inc. v. R.J. Reynolds Tobacco Co., 174 F. Supp. 2d 388, 392 (D. Md. 2001). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977); see also Adams, 697 F.2d at 1219 ("The court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction."). III. Discussion The Army contends that Huff has failed to establish a valid jurisdictional basis for his claims or an unequivocal waiver of sovereign immunity. [HN2]Federal courts are of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction. See Pinkley v. City of Frederick, Md., 191 F.3d 394, 399 (4th Cir. 1999) [**5] (citing Lehigh Mining & Manufacturing Co. v. Kelly, 160 U.S. 327, 327, 16 S. Ct. 307, 40 L. Ed. 444 (1895). Accordingly, the facts establishing jurisdiction must be affirmatively alleged in the plaintiff's complaint. Pinkley, 191 F.3d at 399 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936). To this end, Federal Rule of Civil Procedure 8(a)(1) requires that pleadings setting forth a claim for relief provide "a short plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds to support it." Pinkley, 191 F.3d at 399; Fed. R. Civ. P. 8(a)(1). [HN3]As Huff is attempting to sue the United States, he must also allege an unequivocal waiver of sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (quoting United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 23 L. Ed. 2d 508 F. Supp. 2d 459, *461; 2007 U.S. Dist. LEXIS 67796, **1 Page 4 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 4 of 7 52 (1969). Such waivers may not be implied, and must be "strictly construed in favor of the sovereign." See McMahon v. United States, 342 U.S. 25, 27, 72 S. Ct. 17, 96 L. Ed. 26 (1951). Consistent with [HN4]the lower standard of pleading generally afforded to pro se litigants, see Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980), the Court construes Huff's complaint as making the following jurisdictional arguments: [**6] first, to the extent he seeks back pay, reinstatement, and correction of his military records, the Court will presume that Huff alleges a contractual claim pursuant to [HN5]the Tucker Act, 28 U.S.C. § 1346, 1491, which provides the exclusive basis of jurisdiction over non-tort monetary claims against the United States. See Mitchell v. United States, 930 F.2d 893, 895 (Fed. Cir. 1991). Second, to the extent Huff seeks judicial review of his discharge, the Court interprets his complaint as alleging jurisdiction under 28 U.S.C. § 1331 and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. Finally, insofar as Huff alleges fraud or misrepresentation - either in the alteration of his military records or in the statement that he would have to wait 20 years to file for compensation - the Court presumes that he is seeking to proceed under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., which constitutes a limited waiver of sovereign [*463] immunity in tort claims against the United States. A. Huff's Claims Under the Tucker Act: As stated above, the Tucker Act provides the exclusive basis of jurisdiction over non-tort monetary claims against the United States. See Mitchell, 930 F.2d at 895. [**7] [HN6]Pursuant to the so-called "Little Tucker Act," 28 U.S.C. § 1346(a)(2), the district courts share original jurisdiction with the United States Court of Federal Claims over actions where the amount in controversy does not exceed $ 10,000. In actions exceeding this amount, the Court of Federal Claims has exclusive jurisdiction. See Randall v. United States, 95 F.3d 339, 347. When a claim exceeding $ 10,000 is filed in district court, the court has authority to transfer the action to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. All claims under the Tucker Act are subject to a six-year statute of limitations, see 28 U.S.C. § 2501. This statute "is jurisdictional in nature and, as an express limitation on [the Tucker Act's] waiver of sovereign immunity, cannot be waived." Hart v. United States, 910 F.2d 815, 818-19 (Fed. Cir. 1990). 6 6 Pursuant to the Federal Courts Improvement Act, 28 U.S.C. § 1295, et seq., the United States Court of Appeals for the Federal Circuit has appellate jurisdiction in all cases arising under the "Big" and "Little" Tucker Acts. 28 U.S.C. 1295(a)(1)-(2). Accordingly, its rulings in Tucker Act cases should be followed by this Court. See, e.g., Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422 (Fed. Cir. 1984)(Acknowledging [**8] the Court's "mandate" to provide guidance to district courts in cases involving the Little Tucker Act). Huff does not clearly state the amount he is seeking. His complaint is most logically interpreted, however, as requesting compensation for the remainder of his three-year enlistment contract, plus benefits for a service connected disability beginning on his date of discharge in July 1970. (Compl., PP 1-4). Even according to a conservative calculation, compensation for three years of salary plus 25 years of disability retirement benefits would clearly exceed $ 10,000. 7 As Huff has not limited his damages, his claim falls squarely within the exclusive original jurisdiction of the Court of Federal Claims. 7 Disability benefits are calculated pursuant to the guidelines set forth in 10 U.S.C. § 1401. Such payments are capped at 75% of the retired pay base on which the calculation is based. See 10 U.S.C. 1401(a). Although the Court is authorized to transfer this action to the Court of Federal Claims pursuant to 28 U.S.C. § 1631, it declines to do so here, as Huff's claims are barred by the Tucker Act's statute of limitations. [HN7]As a general matter, "[a] cause of action cognizable in a Tucker [**9] Act suit accrues as soon as ... all events have occurred to fix the Government's alleged liability, entitling the claimant to demand payment and sue here for his money." See Catawba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1570 (Fed. Cir. 1993). Insofar as Huff's complaint asserts a claim for back pay, it is well established that such a cause of action accrues at the time of the plaintiff's discharge. See Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003); Bowen v. United States, 292 F.3d 1383, 1386 (Fed. Cir. 2002). Accordingly, Huff's claim for back pay accrued immediately upon his discharge in mid-1970. Because Huff did not file suit within the six-year period prescribed in 28 U.S.C. § 2501, he therefore lost "all rights to sue for the loss of pay 508 F. Supp. 2d 459, *462; 2007 U.S. Dist. LEXIS 67796, **5 Page 5 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 5 of 7 stemming from the challenged discharge." See Martinez, 333 F.3d at 1304. Huff's claim for back pay has been asserted outside the limitations period, and must be dismissed for lack of jurisdiction. [*464] Application of the Tucker Act's statute of limitations is slightly more complicated with respect to Huff's claim for disability retirement benefits. Unlike a claim for back pay, which accrues immediately upon the plaintiff's [**10] discharge, [HN8]"claims of entitlement to disability retirement pay generally do not accrue until the appropriate military board either finally denies such a claim or refuses to hear it," See Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005)(citing Real v. United States, 906 F.2d 1557, 1560) (Fed. Cir. 1990). When, however, a serviceman has actual or constructive notice of his disability prior to discharge, his failure to request a board hearing upon his discharge triggers the statute of limitations. See Real, 906 F.2d at 1562. Even assuming that Huff lacked actual or constructive notice of his disability when he was discharged in mid-1970, his 1993 complaint states that he "presented his claims" earlier that year to the Army Board for Correction of Military Records (ABCMR), but they were denied "for lack of evidence." 8 Under the Federal Circuit's "first competent board rule," the Tucker Act's six-year statute of limitations was triggered upon the ABCMR's rejection of Huff's claim. See Chambers, 417 F.3d at 1225 (citing Friedman v. United States, 310 F.2d 381, 389, 159 Ct. Cl. 1) ("[N]o cause of action arises (and the statute of limitations does not run) until a proper board has acted or declined [**11] to act.") Although Huff filed his 1993 complaint well within the Tucker Act's six-year limitations period, his complaint in the present action - filed 12 years later - is clearly time-barred. The Court therefore declines to transfer Huff's action for disability benefits to the Court of Federal Claims, and will instead dismiss for lack of jurisdiction. 8 4:93-cv-00876-DW (W.D. Mo. Sept. 21, 1993). B. Huff's Claims Under the Administrative Procedure Act: To the extent that Huff seeks judicial review of his discharge, his complaint may be interpreted as alleging a cause of action under 28 U.S.C. § 1331 and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq. [HN9]Section 702 of the APA constitutes a limited waiver of sovereign immunity, authorizing judicial review of final agency action in claims "seeking relief other than money damages." 5 U.S.C. § 702. Pursuant to section 704 of the APA, however, the application of section 702 is limited to claims "for which there is no other adequate remedy in a court." 5 U.S.C. § 704. See also Mitchell v. United States, 930 F.2d 893 (Fed. Cir. 1991) (Holding section 702 inapplicable because former reserve officer would receive adequate review [**12] of his claim for reinstatement, back pay, and active duty credit in the Court of Federal Claims). Although Huff's filings are far from clear, the gravamen of his complaint suggests that his wrongful discharge in 1970, combined with errors in his military records, has prevented him from obtaining disability pay and other military benefits. (Am. Compl., P 1). 9 Stated another way, it appears that Huff seeks judicial review of his discharge primarily to fix the Army's liability for benefits. Accordingly, Huff's request is properly construed as monetary in nature and outside the ambit of section 702's limited waiver of sovereign immunity. [*465] Insofar as Huff seeks to proceed under 28 U.S.C. § 1331 and the APA, then, the Court is without jurisdiction to consider his claims. 9 In his "Motion to Reinstate," Huff asserts that his wrongful discharge is "blocking his disability pay associated with [his] original [enlistment] contract," and that "subsequently it has affected all of his military and VA administrative procedures and benefits." (Docket No. 19). Furthermore, Huff's claim is manifestly not one "for which there is no adequate remedy in a court." 5 U.S.C. § 704. The Court of Federal Claims [**13] is more than capable of providing ail the relief that Huff requests. "The Claims Court has, in fact, ordered back pay, restoration to military office, placement in correct retirement status, and correction of military records." Mitchell, 930 F.2d at 896 (internal citations omitted). Accordingly, Huff's claim falls comfortably within section 704's limitation on the waiver of sovereign immunity set forth in section 702. If Huff is in fact seeking judicial review of his discharge, he is therefore precluded from bringing his claim under the APA. C. Huff's Claims Under the Federal Tort Claims Act: Huff's amended complaint states that he is bringing a 508 F. Supp. 2d 459, *463; 2007 U.S. Dist. LEXIS 67796, **9 Page 6 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 6 of 7 cause of action for fraud. (Am. Compl. P). Specifically, he alleges that, upon his discharge in 1970, he was told by the Army that he would have to wait 20 years before "filing for compensation." (Compl., P 1). 10 Plaintiff also appears to claim that his military records were "tampered with" to reflect a "medical but honorable discharge." (Am. Compl. PP 6-7). As both claims are grounded in the tort of misrepresentation, Plaintiff must look to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., for a waiver of sovereign immunity. [**14] [HN10]The jurisdictional grant provided by the FTCA, however, does not extend to claims arising out of misrepresentation or deceit. 28 U.S.C. § 2680(h). Accordingly, Plaintiff has failed to establish a jurisdictional basis for either of the claims set forth above. 10 In his "Motion to Reinstate," Plaintiff further contends that "my discharging officers verbally commanded me to wait 20 years after discharge to file for benefits, while my paperwork, years later, reflected yet another story." (Docket No. 19). In addition, even if Huff's claims did fall within the FTCA's limited waiver of sovereign immunity, they would be barred by the statute of limitations. [HN11]Claims under the FTCA are subject to a two-year statute of limitations, see 28 U.S.C. § 2401, rather than the default six-year period generally applicable to suits against the United States. 28 U.S.C. § 2501. Even assuming that Huff was unaware of the Army's allegedly tortious conduct until he "filed for compensation" in 1999 (Compl. P 3), he did not initiate the present action until April 2005, well after the two-year limitations period applicable to tort claims against the federal government. IV. Conclusion Huff's complaint may plausibly [**15] be read to assert claims under the Tucker Act, the Administrative Procedure Act, and the Federal Tort Claims Act. As the discussion above makes clear, however, none of these provisions provide the court with jurisdiction over the present action. Accordingly, the Court will, by separate order, GRANT defendant's motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and DIRECT the Clerk to CLOSE the CASE. It is so ORDERED this 13 day of September, 2007. Benson Everett Legg Chief Judge ORDER For the reasons stated in the Memorandum of even date, the Court hereby: (i) GRANTS Defendants' Motion to Dismiss; [*466] (ii) DIRECTS the Clerk to close the case. Dated this 13th day of September, 2007. Benson Everett Legg Chief Judge 508 F. Supp. 2d 459, *465; 2007 U.S. Dist. LEXIS 67796, **13 Page 7 Case 1:16-cv-03670-GLR Document 21-5 Filed 05/30/17 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES EDWARD HUFF, Plaintiff, v. AT&T INC., et al., Defendants. Case No. 1:16-cv-03670-GLR ORDER Upon consideration of Defendants’ Motion to Dismiss, the Memorandum of Points and Authorities in Support thereof, any Opposition thereto, and any Reply in further support of the Motion, it is hereby: ORDERED that Defendants’ Motion to Dismiss is GRANTED, and the Complaint (ECF No. 1) is hereby dismissed with prejudice. Date: __________________ ___________________________________ Honorable George L. Russell, III United States District Judge Case 1:16-cv-03670-GLR Document 21-6 Filed 05/30/17 Page 1 of 1