Gallo-Rodriguez v. United States , 513 F. App'x 971 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCO ANTONIO GALLO-RODRIGUEZ,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5136
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0782, Judge George W. Miller.
______________________
Decided: March 28, 2013
______________________
MARCO ANTONIO GALLO-RODRIGUEZ, of Bogota, Co-
lombia, pro se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were STEWART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, BRIAN M. SIMKIN, Assistant Director and STACEY
K. GRIGBY, Trial Attorney.
2 MARCO GALLO-RODRIGUEZ v. US
______________________
Before NEWMAN, LINN, and WALLACH, Circuit Judges.
PER CURIAM.
Marco Antonio Gallo-Rodriguez appeals the decision
of the United States Court of Federal Claims (“Claims
Court”) granting the United States’ Motion to Dismiss for
Lack of Subject Matter Jurisdiction. We affirm.
BACKGROUND
Mr. Gallo-Rodriguez was convicted in the United
States District Court for the Southern District of Florida
of conspiracy to possess with intent to distribute cocaine
and possession with intent to distribute cocaine on De-
cember 8, 1994. Gallo-Rodriguez v. United States, No. 11-
782-C, 2012 U.S. Claims LEXIS 893, *2 (Fed. Cl. July 20,
2012). Subsequently, Mr. Gallo-Rodriguez filed multiple
suits and appeals in multiple venues including a petition
for writ of habeas corpus in the United States District
Court for the Eastern District of Texas (which was then
transferred to the United States District Court for the
Southern District of Florida). Id. at *3-4.
The current case was initiated when Mr. Gallo-
Rodriguez, appearing pro se, filed a Complaint with the
Claims Court on November 21, 2011 demanding $500
million from the United States government. Id. at *1. Mr.
Gallo-Rodriguez states that, while he was searching
Public Access to Court Electronic Records to prepare
documents for his suit in the United States District Court
for the District of Columbia, he discovered that the mem-
orandum of law he filed with his habeas petition was not
included in his case file when it was transferred to the
Southern District of Florida from the Southern District of
Texas. Id. at *5-6. Appellant argued that this “‘seriously
compromise[d]’” the outcome of his habeas petition as well
as his subsequent lawsuit and its appeal. Id. at *6 (quot-
MARCO GALLO-RODRIGUEZ v. US 3
ing Compl. at 2-3). The United States moved to dismiss
the action on February 10, 2012, for lack of jurisdiction,
arguing that the claims do not fall within the Claims
Court’s Tucker Act jurisdiction or, in the alternative, that
they are time barred because they were filed beyond the
six-year statute of limitations. Id. at *1-2. The Claims
Court granted the Government’s motion, and Mr. Gallo-
Rodriguez filed this timely appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
This court reviews the Claims Court’s dismissal for
lack of subject matter jurisdiction de novo. Doe v. United
States, 463 F. 3d 1314, 1320 (Fed. Cir. 2006). The Tucker
Act confers on the Claims Court jurisdiction over “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). “The Tucker Act itself does not create
a substantive cause of action; in order to come within the
jurisdictional reach and the waiver of the Tucker Act, a
plaintiff must identify 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). Mr.
Gallo-Rodriguez has the burden to show that jurisdiction
exists. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir. 2002). Furthermore, “[e]very claim of which the
United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within
six years after such claim first accrues.” 28 U.S.C. § 2501.
We construe the pleadings of pro se litigants liberally.
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed.
Cir. 2007).
4 MARCO GALLO-RODRIGUEZ v. US
As before the Claims Court, Mr. Gallo-Rodriguez con-
tinues to allege a cause of action based upon the United
States Supreme Court’s decisions in Bivens v. Six Un-
known Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), and Carlson v. Green, 446 U.S. 14(1980). However, these decisions cannot form the basis
for Tucker Act Jurisdiction. In Bivens, the Supreme
Court held that a party may, under certain circumstances,
bring an action for violation of constitutional rights
against government officials in their individual capacities.
Bivens, 403 U.S. at 395-96. Similarly, in Carlson, the
Supreme Court in a Bivens-type action recognized that an
individual may maintain a cause of action against federal
government officials in their individual capacities for
violation of constitutional rights. Carlson, 446 U.S. at 18.
“The Tucker Act grants the Court of Federal Claims
jurisdiction over suits against the United States, not
against individual federal officials.” Brown v. United
States, 105 F.3d 621, 624 (Fed. Cir. 1997) (citing 28 U.S.C.
§ 1491(a)). Accordingly, the Claims Court properly held it
lacked jurisdiction over Mr. Gallo-Rodriguez’s Bivens
claims.
Mr. Gallo-Rodriguez also asserts that the court should
have granted his request for a hearing pursuant to Rule
12(i) of the Rules of the United States Court of Federal
Claims (“RCFC”). Rule 12(i) provides that “[i]f a party so
moves, any defense listed in RCFC 12(b)(1)-(7)—whether
made in a pleading or by motion—and a motion under
RCFC 12(c) must be heard and decided before trial unless
the court orders a deferral until trial.” RCFC 12(i). How-
ever, the Claims Court provided Mr. Gallo-Rodriguez with
a full and fair opportunity to present his originally filed
Complaint and a response to the Motion to Dismiss, which
he did on March 29, 2012. This opportunity does not
guarantee a right to present oral argument, but only that
a party be provided the opportunity to present its views.
Thomas v. United States, 245 F. App’x. 18, 19 (Fed. Cir.
MARCO GALLO-RODRIGUEZ v. US 5
2007) (unpublished) (interpreting the analogous rule in
the Federal Rules of Civil Procedure and noting that
“every circuit to consider the issue has determined that
the ‘hearing’ requirements of Rule 12 and Rule 56 do not
mean that an oral hearing is necessary, but only require
that a party be given the opportunity to present its views
to the court.”).
Mr. Gallo-Rodriguez also alleges a violation of the
Due Process Clause of the Fifth Amendment. 1 However,
it is settled precedent that this provision is not money-
mandating. LeBlanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir. 1995) (holding that the Due Process Clauses of
the Fifth and Fourteenth Amendments are not “a suffi-
cient basis for jurisdiction because they do not mandate
payment of money by the government”).
Finally, Mr. Gallo-Rodriguez argues that the Gov-
ernment’s response to his Complaint was untimely filed
because the motion did not appear on the electronic
docket until three days after the deadline for filing. Appel-
lant’s Reply Brief at 6-7. However, according to the
Claims Court’s docket, the Clerk’s Office stamped the
filed copy of the Government’s Motion as accepted on the
date it was due, February 10, 2012. Defendant’s Motion
For Summary Dismissal of Pro Se Complaint at 1, Gallo-
Rodriguez, 2012 U.S. Claims LEXIS 893, ECF No. 6. 2
1 Mr. Gallo-Rodriguez labels this claim a violation of
the Just Compensation Clause of the Fifth Amendment;
however, he then refers to the “seizure of a person who is
actually innocent of the charges.” Appellant’s Brief at 1.
This statement, if true, alleges a violation of the Due
Process Clause of the Fifth Amendment, not a takings
claim under the Just Compensation Clause.
2 The Claims Court also correctly determined that
this case was barred by the statute of limitations. Mr.
6 MARCO GALLO-RODRIGUEZ v. US
CONCLUSION
Because Mr. Gallo-Rodriguez has not asserted any
ground that might entitle him to relief, we affirm the
Claims Court’s decision to dismiss for lack of jurisdiction.
AFFIRMED
Gallo-Rodriguez alleged that the destruction or disap-
pearance of his memorandum of law occurred after he
sent his habeas petition in 2001. Gallo-Rodriguez, 2012
U.S. Claims Lexis 893 at *14-15. Although Mr. Gallo-
Rodriguez argues that he recently learned of the alleged
disappearance of the memorandum, he could have ob-
tained that information as early as 2001 and at the latest
in 2002 when the district court dismissed his petition. Id.
at *15. For the purposes of 28 U.S.C. § 2501, a “cause of
action against the government has first accrued ‘when all
the events which fix the government’s alleged liability
have occurred and the plaintiff was or should have been
aware of their existence.’” San Carlos Apache Tribe v.
United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011) (citing
Hopland Band of Pomo Indians v. United States, 855 F.2d
1573, 1577 (Fed. Cir. 1988). Thus, any claim that Mr.
Gallo-Rodriguez could raise regarding the alleged destruc-
tion of his memorandum of law accrued over six years
before he filed his suit in 2011. See 28 U.S.C. § 2501 (a
cause of action under the Tucker Act “shall be barred
unless the petition thereon is filed within six years after
such claim first accrues.”).