Thirplus Tino Moose Bey v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THIRPLUS TINO MOOSE BEY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1924
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01699-MHS, Judge Matthew H. Solomson.
______________________
Decided: February 9, 2024
______________________
T HIRPLUS T INO MOOSE BEY , Bastrop, TX, pro se.
MARGARET J ANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. B OYNTON, L ISA L EFANTE D ONAHUE, P ATRICIA M.
MCCARTHY .
______________________
Before L OURIE, D YK, and STARK, Circuit Judges.
Case: 23-1924 Document: 17 Page: 1 Filed: 02/09/2024

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BEY v. US 2
P ER CURIAM .
Thirplus Tino Moose Bey appeals from a decision of the
United States Court of Federal Claims (“the Claims Court”)
dismissing his complaint for lack of subject-matter jurisdic-
tion. Moose Bey v. United States, No. 22-1699C, SAppx.
11–16 (Fed. Cl. Mar. 8, 2023) (“Decision”).1 The Claims
Court also held that Bey’s breach of contract claims were
barred by principles of res judicata. Decision at 5. For the
following reasons, we affirm.
BACKGROUND
Bey, a federal prisoner incarcerated in Balstrop, Texas,
alleges that he entered into a “novation agreement” with
the U.S. government that altered the terms of his plea
agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). Id. at 1.
The terms of the alleged “novation agreement” in ques-
tion mandate Bey’s immediate release from prison, SAppx.
4, subject to certain conditions of continued supervision
and repayment, SAppx. 2–3. The alleged “agreement” also
provides that the government “agrees to all herein stated
via a non[-]response to this Notice of Novation within seven
days of receipt of this notice.” SAppx. 6. Additionally, the
purported novation includes a “Penalty Clause” requiring
the payment of $100,000,000 to Bey in the event that the
government breaches the “agreement.” SAppx. 5.
Bey sent the purported “novation agreement” to an As-
sistant United States Attorney (“AUSA”) via U.S. Mail, and
it was received on September 15, 2021. SAppx. 7. After
the government failed to respond, Bey subsequently mailed
a “Notice of Enforcement” on October 6, 2021, informing
1 “SAppx.” refers to the supplemental appendix that
the government filed in this court with its informal re-
sponse brief.
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BEY v. US 3
the government of its purported breach due to its failure to
order Bey’s immediate release. SAppx. 8–10. He then filed
a complaint in the Claims Court on November 14, 2022.
Decision at 1.
The Claims Court dismissed Bey’s complaint sua
sponte pursuant to Rule 12(h)(3) of the United States Court
of Federal Claims, holding that it lacked subject-matter ju-
risdiction. Id. at SAppx. 13. The court held that it (1) could
not hear Bey’s claims against the recipient AUSA, as those
claims were against an individual federal official, (2) could
not hear Bey’s claims against the United States regarding
false imprisonment, as those claims “sound[ed] in tort,” (3)
could not hear Bey’s claims predicated on state law, (4)
could not hear Bey’s claims against the United States re-
garding breach of contract, as Bey never alleged the exist-
ence of a valid contract, and (5) could not order Bey’s
immediate release from prison, as that is criminal injunc-
tive relief beyond the court’s power. Id. at SAppx. 13–15.
The Claims Court also held that Bey’s claims regarding
breach of contract were barred by principles of res judicata,
identifying a Fifth Circuit case, among others, in which Bey
put forward substantially similar arguments regarding an
alleged unilateral amendment of his plea agreement
through a purported novation. Id. at SAppx. 15. Bey sub-
sequently filed a motion for reconsideration attempting to
supplement his breach of contract claims, which the Claims
Court denied. SAppx. 17–19.
Bey timely appeals to this court. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
We “review the Court of Federal Claims findings of fact
for clear error and its legal rulings without deference.”
John R. Sand & Gravel Co. v. United States, 457 F.3d 1345,
1353 (Fed. Cir. 2006), aff’d, 552 U.S. 130 (2008). The exist-
ence of jurisdiction in the Claims Court is a legal issue re-
viewed de novo. RAMCOR Servs. Grp., Inc. v. United
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BEY v. US 4
States, 185 F.3d 1286, 1288 (Fed. Cir. 1999). Additionally,
“[i]t is well-established that the plaintiff bears the burden
of establishing the court’s jurisdiction by a preponderance
of the evidence.” Brandt v. United States, 710 F.3d 1369,
1373 (Fed. Cir. 2013).
Furthermore, “[t]he jurisdiction of the Court of Federal
Claims is defined by the Tucker Act, which gives the court
authority to render judgment on certain monetary claims
against the United States.” RadioShack Corp. v. United
States, 566 F.3d 1358, 1360 (Fed. Cir. 2009) (citing
28 U.S.C. § 1491(a)(1)). However, “[t]he Tucker Act itself
does not create a substantive cause of action; in order to
come within the jurisdictional reach and the waiver of [sov-
ereign immunity of] the Tucker Act, a plaintiff must iden-
tify a separate source of substantive law that creates the
right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (citing United States v. Mitch-
ell, 463 U.S. 206, 216 (1983); United States v. Testan, 424
U.S. 392, 398 (1976)).
Bey no longer seeks his immediate release from incar-
ceration and limits his appeal to seeking monetary dam-
ages under the purported novation’s “Penalty Clause”
totaling $100,000,000. Appellant’s Informal Reply Br. at 6.
Each of Bey’s arguments regarding subject-matter jurisdic-
tion on appeal is now premised on his “breach of contract”
theory, which alleges that the government failed to meet
its obligations under Bey’s Rule 11(c)(1)(C) plea agreement
as amended by the alleged “novation agreement” in ques-
tion.
Bey argues that the Supreme Court has treated plea
agreements as “essentially contracts.” Puckett v. United
States, 556 U.S. 129, 137 (2009); Appellant’s Informal Br.
at 6. However, the Court also warned that “the analogy
may not hold in all respects.” Puckett, 556 U.S. at 137. The
relevant question in this case is whether or not the alleged
“novation agreement” effectively altered the terms of Bey’s
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BEY v. US 5
plea agreement, as Bey does not allege any breach of the
original terms of his plea agreement. As such, the pur-
ported novation is the primary focus of our analysis. And
we conclude that the so-called “novation agreement” did
not alter the terms of Bey’s plea agreement as the govern-
ment never agreed to it.
Specifically, Bey argues that the government accepted
his proposed novation by failing to respond to it within
seven days of its receipt. He relies on the clause within the
alleged “novation” that explicitly provides that the govern-
ment “agrees to all herein stated via a non[-]response to
this Notice of Novation within seven days of receipt of this
notice.” SAppx. 6. And, because the government failed to
respond within that specified time period, Bey contends
that the proposed novation was accepted, thereby altering
the terms of his original plea agreement.
The Claims Court held otherwise, and we agree with
the court that Bey has failed to allege any non-frivolous,
non-conclusory allegations of fact suggesting that the “no-
vation agreement” comprised a valid contract with the
United States government.
General principles of contract law instruct that silence
should only be treated as an acceptance of an offer in very
limited instances. See Restatement (Second) of Contracts
§ 69 (Am. L. Inst. 1981). Bey argues that his situation falls
within one of those narrow exceptions, specifically “[w]here
because of previous dealings or otherwise, it is reasonable
that the offeree should notify the offeror if he does not in-
tend to accept.” Id. at § 69(1)(c). Bey contends that the
criminal proceeding in district court resulting in his origi-
nal plea agreement and incarceration constituted previous
dealings wherein it is reasonable that the government
should have notified Bey if it did not intend to accept his
novation agreement. Appellant’s Informal Br. at 8–9. That
is not correct. A federal criminal prosecution that involves
a plea agreement is not a previous dealing that would
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BEY v. US 6
reasonably imply that silence following another offer
should be treated as acceptance. A criminal prosecution is
quite different from the type of longstanding, repetitious
previous dealings that may form a reasonable basis for in-
terpreting silence in a commercial negotiation as an ac-
ceptance. See Restatement (Second) of Contracts § 69 cmt.
d (Am. L. Inst. 1981).
That treatment is supported by Federal Rule of Crimi-
nal Procedure 11, which governs procedures regarding plea
agreements. Among other requirements, Rule 11 man-
dates that “[t]he parties must disclose the plea agreement
in open court when the plea is offered, unless the court for
good cause allows the parties to disclose the plea agree-
ment in camera.” Fed. R. Crim. P. 11(c)(2). Furthermore,
in the case of Rule 11(c)(1)(A) or (C) plea agreements, “the
court may accept the agreement, reject it, or defer a deci-
sion until the court has reviewed the presentence report.”
Fed. R. Crim. P. 11(c)(3)(A). Rule 11’s requirements for
public disclosure and judicial oversight prior to finalizing a
plea agreement further support the conclusion that a crim-
inal prosecution involving a plea agreement does not pro-
vide a basis for treating silence following a later offer as
acceptance.
Accordingly, the government’s silence following its re-
ceipt of the “novation agreement” did not constitute an ac-
ceptance of its terms, and no valid contract was formed that
would alter the terms of Bey’s original plea agreement. As
such, the Claims Court correctly determined that it lacked
jurisdiction in this case based on a purported breach of the
so-called “novation agreement.” That determination fore-
closes many of Bey’s other arguments regarding whether
or not an AUSA possesses authority to bind the govern-
ment to a “novation agreement.” Furthermore, we need not
assess the preclusive effect of a similar Fifth Circuit deci-
sion in another case brought by Bey, although we note that
that court arrived at the same conclusion as we do here.
See Moose v. FNU LNU, No. 22-50002, 2022 WL 4493720
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BEY v. US 7
(5th Cir. Sept. 27, 2022) (“Here, Moose attempts to unilat-
erally change the terms of his plea agreement and sentence
to obtain immediate release and asserts that the Govern-
ment has agreed to this novation by its silence. This con-
tention is without merit.”). Bey has therefore failed to
establish the Claims Court’s jurisdiction over his complaint
by a preponderance of the evidence.
CONCLUSION
We have considered Bey’s remaining arguments but
find them unpersuasive. For the foregoing reasons, the de-
cision of the Claims Court is affirmed.
AFFIRMED
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