Case: 21-1872 Document: 34 Page: 1 Filed: 02/27/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN LAMONTE BREWER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1872
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01209-ZNS, Judge Zachary N. Somers.
______________________
Decided: February 27, 2023
______________________
KEVIN BREWER, Grand Prairie, TX, pro se.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, DEBORAH ANN BYNUM, MARTIN F.
HOCKEY, JR.
______________________
Before NEWMAN, CLEVENGER, and STOLL, Circuit Judges.
Case: 21-1872 Document: 34 Page: 2 Filed: 02/27/2023
2 BREWER v. US
PER CURIAM.
Kevin Lamonte Brewer appeals from the final decision
of the United States Court of Federal Claims dismissing
his complaint for monetary relief under
28 U.S.C. § 1495.
For the reasons set forth below, we affirm the dismissal of
Mr. Brewer’s complaint.
BACKGROUND
Section 1495 provides that the Court of Federal Claims
“shall have jurisdiction to render judgment upon any claim
for damages by any person unjustly convicted of an offense
against the United States and imprisoned.” A companion
statute,
28 U.S.C. § 2513, provides that any person suing
under § 1495 must allege and prove, among other things,
that his conviction has been reversed and that “his acts,
deeds, or omissions in connection with the charge on which
he was convicted constituted no offense against the United
States, or any State . . . .” A plaintiff can prove these nec-
essary facts by obtaining a certificate of innocence from the
federal district court that has jurisdiction over the alleg-
edly improper imprisonment.
In this case, Mr. Brewer was charged and convicted in
the United States District Court for the Western District of
Arkansas, and then imprisoned, for failing to register as a
sex offender under the Sex Offender Registration and No-
tification Act (SORNA), codified at
34 U.S.C. § 20911 et seq.
Mr. Brewer successfully challenged his conviction as un-
lawfully applying SORNA retroactively to his case. United
States v. Brewer,
766 F.3d 884, 892 (8th Cir. 2014).
On September 16, 2020, Mr. Brewer filed a complaint
seeking monetary relief under § 1495. To support his
claim, Mr. Brewer filed a request for a certificate of inno-
cence from the Western District of Arkansas. That court
denied his request, on the grounds that Mr. Brewer had
“not demonstrated that his own misconduct or neglect did
not cause his prosecution” and also because his “conduct
Case: 21-1872 Document: 34 Page: 3 Filed: 02/27/2023
BREWER v. US 3
was a violation of state law.” United States v. Brewer,
No. 6:09-CR-60007-RTD,
2020 WL 8267582, at *2 (W.D.
Ark. Dec. 10, 2021), adopted in full,
2021 WL 261541 (Jan.
26, 2021). Mr. Brewer appealed that decision to the Eighth
Circuit.
While his appeal to the Eighth Circuit was pending,
Mr. Brewer requested that the Court of Federal Claims
stay the proceedings on his complaint. The Court of Fed-
eral Claims declined to do so, holding that the district
court’s denial of the requested certificate of innocence
meant that Mr. Brewer could not bring a § 1495 complaint
in the Court of Federal Claims. Brewer v. United States,
No. 20-1209,
2021 WL 655432, at *2–3 (Fed. Cl. Feb. 19,
2021). Specifically, the Court of Federal Claims deter-
mined that without the certificate of innocence, Mr. Brewer
could not make the requisite showing for his § 1495 claim.
Accordingly, the court sua sponte dismissed under its own
Rule 12(h)(3) for a lack of subject matter jurisdiction. Id.
at *2 (citing, among other cases, Grayson v. United States,
141 Ct. Cl. 866, 869 (1958)).
Mr. Brewer timely appealed. We have jurisdiction un-
der
28 U.S.C. § 1295(a)(3).
DISCUSSION
On appeal to this court, Mr. Brewer argues that the
Court of Federal Claims should have granted a stay to al-
low resolution of his appeal to the Eighth Circuit and asks
us to also stay this case until final resolution of that appeal.
Appellant’s Br. 1–2. After Mr. Brewer appealed to this
court but before the case was submitted for decision, the
Eighth Circuit affirmed the district court’s denial of his re-
quest for a certificate of innocence. United States
v. Brewer,
853 F. App’x 46, 46 (8th Cir. 2021). Shortly after
Mr. Brewer’s appeal to this court was submitted for deci-
sion, the Supreme Court denied his petition for certiorari
regarding the Eighth Circuit’s decision. Brewer v. United
States,
142 S. Ct. 1242 (2022).
Case: 21-1872 Document: 34 Page: 4 Filed: 02/27/2023
4 BREWER v. US
We agree with the Court of Federal Claims that
Mr. Brewer’s claim for monetary relief under § 1495 cannot
succeed without him having been granted a certificate of
innocence.
28 U.S.C. § 2513(b) (“Proof of the requisite facts
shall be by a certificate of the court . . . wherein such facts
are alleged to appear, and other evidence thereof shall not
be received.”); see also, e.g., Sykes v. United States,
105 Fed.
Cl. 231, 233 (2012) (“[A]n unjust conviction and imprison-
ment claim must be established by either a certificate
granted by the court of conviction or a pardon.”).
Mr. Brewer has now exhausted all remedies in seeking a
certificate of innocence. Accordingly, because Mr. Brewer
cannot prove the facts necessary to succeed on his § 1495
claim, we affirm the Court of Federal Claims’ dismissal of
his complaint.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For these reasons, we affirm
the final judgment of the Court of Federal Claims.
AFFIRMED
COSTS
No costs.
