Allen v. United States ( 2023 )

Case: 23-1305 Document: 31 Page: 1 Filed: 12/18/2023
United States Court of Appeals
for the Federal Circuit
______________________
DERRICK M. ALLEN, SR.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1305
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01793-AOB, Judge Armando O. Bonilla.
______________________
Decided: December 18, 2023
______________________
DERRICK MIKE ALLEN, SR., Washington, DC, pro se.
JOSHUA MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, for defend-
ant-appellee. Also represented by BRIAN M. BOYNTON,
TARA K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before DYK, SCHALL, and STARK, Circuit Judges.
PER CURIAM.
Derrick Allen filed a pro se complaint in the Court of
Federal Claims alleging that the Clerk’s Office in the
Case: 23-1305 Document: 31 Page: 2 Filed: 12/18/2023
2 ALLEN v. US
United States District Court for the Middle District of
North Carolina (“Middle District”) failed to send him docu-
ments related to cases he had filed in the Middle District.
Acting sua sponte, the trial court dismissed Mr. Allen’s
complaint for lack of subject matter jurisdiction and im-
posed an injunction limiting his ability to file future suits.
We affirm the dismissal but vacate the sanction, which the
Court of Federal Claims may consider re-imposing after
providing Mr. Allen notice and an opportunity to be heard.
I
Mr. Allen’s complaint in the Court of Federal Claims
alleged that the Middle District’s Clerk of Court had vio-
lated unspecified rights by failing to send Mr. Allen docu-
ments from other cases he had also filed in the Middle
District. See App’x 8. 1 As relief, Mr. Allen sought $50,000
in damages. He did not identify any statutory or other ba-
sis for his cause of action.
The Court of Federal Claims reviewed Mr. Allen’s com-
plaint and sua sponte determined it lacked subject matter
jurisdiction. Because Mr. Allen failed to cite a money-man-
dating statute and alleged a tort claim, the court held he
had not stated a claim within the scope of the limited juris-
diction of the Court of Federal Claims. The court then set
out Mr. Allen’s extensive history of “frivolous litigiousness”
and determined, sua sponte, that he had repeatedly filed
suits “without any consideration of the jurisdiction of [the
Court of Federal Claims] or other federal courts.” App’x 2-
4. In particular, the trial court observed that Mr. Allen had
1 See Allen v. Ewell, No. 19-766 (M.D.N.C. filed July
29, 2019; dismissed Dec. 5, 2022), aff’d, No. 22-325 (4th Cir.
Mar. 21, 2023); Allen v. Birkhead, No. 22-1002 (M.D.N.C.
filed Nov. 21, 2022; dismissed without prejudice Mar. 6,
2023). References to App’x indicate the appendix attached
to the government’s informal brief.
Case: 23-1305 Document: 31 Page: 3 Filed: 12/18/2023
ALLEN v. US 3
filed at least 24 federal cases in recent years, all of which
had been “summarily dismissed for lack of jurisdiction,
frivolousness, maliciousness, failure to state a claim, and
Federal Rule of Civil Procedure 8 (General Rules of Plead-
ing) deficiencies.” App’x 2. Among these cases were seven
that had been filed in the Court of Federal Claims, five of
which were dismissed for lack of subject matter jurisdiction
(the other two having been dismissed by stipulation or for
failure to prosecute); three of those were appealed to and
affirmed by us. See Gov’t Informal Br. at 9 n.3 (listing
cases).
Based on this history, as well as the case before it, the
Court of Federal Claims entered “the following anti-filing
injunction:”
Effective immediately, plaintiff is ENJOINED
from filing new complaints pro se in this Court
without first obtaining leave to file from the Chief
Judge. If plaintiff seeks to file a new complaint in
this Court, he shall submit a Motion for Leave to
File and explain why the new complaint is timely
and properly before this Court. Any motion for
leave to file a new complaint must also include as
an attachment a full complaint that satisfies the
requirements of RCFC 8.
App’x 4. The anti-filing injunction does not apply to com-
plaints signed by a licensed attorney. See id.
Mr. Allen timely appealed. We denied the govern-
ment’s motion for summary affirmance. ECF No. 16 (Apr.
6, 2023). Instead, we ordered the government to file a re-
sponse brief and address “whether the anti-filing injunc-
tion order is improper for lack of notice and an opportunity
to be heard.” Id. The government submitted a brief ad-
dressing this issue. ECF No. 18 (May 8, 2023). We have
jurisdiction over Mr. Allen’s appeal from the final decision
of the Court of Federal Claims under 28 U.S.C.
§ 1295(a)(3).
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4 ALLEN v. US
II
We review the trial court’s dismissal for lack of subject
matter jurisdiction de novo. See Diaz v. United States, 853
F.3d 1355, 1357 (Fed. Cir. 2017). It is Mr. Allen’s burden
to show, by a preponderance of the evidence, that the Court
of Federal Claims had jurisdiction. See id. We agree with
the Court of Federal Claims that it lacked subject matter
jurisdiction.
Mr. Allen’s claim is that the Clerk’s Office of the Middle
District failed to send him certain documents. His com-
plaint cites the Tucker Act, which gives the Court of Fed-
eral Claims jurisdiction “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 for liquidated or unliqui-
dated damages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1) (emphasis added). The Tucker Act does not
create substantive rights, so a plaintiff filing in the Court
of Federal Claims “must identify a separate source of sub-
stantive law that creates the right to money damages.”
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc). “[T]he absence of a money-mandating
source [is] fatal to the court’s jurisdiction under the Tucker
Act.” Id. at 1173.
As the trial court rightly found, Mr. Allen “fails to cite
a money-mandating statute or qualifying provision of law.”
App’x 2. Additionally, Mr. Allen’s complaint is “akin to a
customer-service complaint” and “sounds in tort,” id., but
“[t]he Court of Federal Claims . . . lacks jurisdiction over
tort actions against the United States,” Brown v. United
States, 105 F.3d 621, 623 (Fed. Cir. 1997).
On appeal, for the first time in this case, Mr. Allen
raises various constitutional rights he contends the trial
court violated, including his Eighth Amendment right to be
free from cruel and unusual punishment, a purported Sixth
Amendment right to a response to his complaint, and
Case: 23-1305 Document: 31 Page: 5 Filed: 12/18/2023
ALLEN v. US 5
alleged rights to a jury trial. See Appellant Br. at 1-2. In
addition to these claims having been forfeited by not being
asserted in the trial court, see Fresenius USA, Inc. v. Baxter
Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party
fails to raise an argument before the trial court, or presents
only a skeletal or undeveloped argument to the trial court,
we may deem that argument waived on appeal . . . .”), they
are also frivolous, as Mr. Allen fails even to try to state a
plausible basis for finding that any of these amendments
are money-mandating in the circumstances of this case. 2
Accordingly, we affirm the trial court’s dismissal of Mr.
Allen’s complaint.
III
“This court reviews the lower court’s use of its inherent
power to impose sanctions under the abuse of discretion
standard.” Arunachalam v. Int’l Bus. Machs. Corp., 989
F.3d 988, 996 (Fed. Cir. 2021) (internal quotation marks
omitted). “An abuse of discretion occurs when a [trial]
court’s decision commits legal error or is based on a clearly
erroneous assessment of the evidence.” Univ. of Utah
v. Max-Planck-Gesellschaft zur Foerderung der Wissen-
schaften e.V., 851 F.3d 1317, 1322 (Fed. Cir. 2017); see also
2 We have held in a precedential opinion that the
“Court of Federal Claims does not have jurisdiction over
claims arising under the Eighth Amendment, as the Eighth
Amendment is not a money-mandating provision.” Trafny
v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (in-
ternal quotation marks omitted). We have reached similar
conclusions regarding the Sixth and Seventh Amendments
in nonprecedential opinions. See Smith v. United States,
36 F. App’x 444, 446 (Fed. Cir. 2002) (nonprecedential)
(holding Sixth Amendment is not money-mandating);
Brashear v. United States, 776 F. App’x 679, 682 (Fed. Cir.
2019) (nonprecedential) (same for Seventh Amendment).
Case: 23-1305 Document: 31 Page: 6 Filed: 12/18/2023
6 ALLEN v. US
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,
1378 (Fed. Cir. 2009).
In denying the government’s motion for summary affir-
mance without prejudice, we also sua sponte directed the
government to address whether the Court of Federal
Claims had improperly imposed the anti-filing injunction
without providing Mr. Allen notice and an opportunity to
be heard. Although we do not ordinarily consider issues
that are not presented by the parties on appeal, see, e.g., In
re Google Tech. Holdings LLC, 980 F.3d 858, 864 (Fed. Cir.
2020) (“The burden lies with the applicant to present this
argument in the initial instances.”); Rodriguez v. Dep’t of
Veterans Affs., 8 F.4th 1290, 1296 (Fed. Cir. 2021)
(“[I]ssues not addressed in the argument section of a
party’s opening brief are considered [forfeited] . . . .”), we
sometimes make an exception for an appellant who was not
represented by counsel in the trial court, see, e.g., Ledford
v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002) (“Un-
der such circumstances, we would normally consider Mr.
Ledford to have [forfeited] any arguments asserting juris-
diction . . . . However, because Mr. Ledford is proceeding
pro se, we will also review the trial court’s dismissal of his
[other] requests . . . .”); see also Singleton v. Wulff, 428 U.S.
106, 121 (1976) (holding that federal appellate courts may
raise issues sua sponte where “injustice might otherwise
result”) (internal quotation marks omitted). We find it ap-
propriate here to evaluate whether Mr. Allen had a consti-
tutional right to be provided notice and an opportunity to
be heard before he was subjected to an anti-filing injunc-
tion. Reviewing this question of law, we conclude that Mr.
Allen must be provided such process. See Highmark Inc. v.
Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 & n.2
(2014) (“The abuse-of-discretion standard does not pre-
clude an appellate court’s correction of a district court’s le-
gal or factual error . . . .”); Univ. of Utah, 851 F.3d at 1322(same).
Case: 23-1305 Document: 31 Page: 7 Filed: 12/18/2023
ALLEN v. US 7
Federal courts have inherent power to sanction bad-
faith conduct, including vexatious litigation. See Cham-
bers v. NASCO, Inc., 501 U.S. 32, 46 (1991). “A court must,
of course, exercise caution in invoking its inherent power,”
and in doing so, “it must comply with the mandates of due
process.” Id. at 50. Due process requires, at minimum,
that “deprivation of life, liberty or property by adjudication
be preceded by notice and opportunity for hearing appro-
priate to the nature of the case.” Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 313 (1950). It is well-settled
that access to federal courts is a fundamental right, which
cannot be infringed without compliance with due process.
See Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142,
148 (1907) (holding that access to courts is “the right con-
servative of all other rights, and lies at the foundation of
orderly government”); see also In re Oliver, 682 F.2d 443,
446 (3d Cir. 1982) (“Access to the courts is a fundamental
tenet of our judicial system; legitimate claims should re-
ceive a full and fair hearing no matter how litigious the
plaintiff may be.”).
We have not previously determined whether imposi-
tion of an anti-filing injunction must be preceded by notice
and an opportunity to be heard. The government points us
to a nonprecedential decision in which we affirmed a sanc-
tions order despite the absence of any indication such pro-
tections were provided to the appellant. See Straw
v. United States, No. 2021-1600, 2021 WL 3440773 (Fed.
Cir. Aug. 6, 2021). There, however, there is no indication
that the procedural issues were raised; the appeal was
seemingly limited to the question of whether the litigant
had behaved frivolously. See id. at *5-6.
Several other circuits have addressed the question and
have concluded that a litigant is entitled to notice and an
opportunity to be heard before being subjected to an anti-
filing injunction. See In re Powell, 851 F.2d 427, 431 (D.C.
Cir. 1988); In re Hartford Textile Corp., 613 F.2d 388, 390
(2d Cir. 1979); Brow v. Farrelly, 994 F.2d 1027, 1038 (3d
Case: 23-1305 Document: 31 Page: 8 Filed: 12/18/2023
8 ALLEN v. US
Cir. 1993); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812, 819 (4th Cir. 2004); De Long v. Hennessey, 912 F.2d
1144, 1147 (9th Cir. 1990). Today we align ourselves with
our sister circuits. Thus, we hold that before a trial court
may impose an anti-filing injunction, the litigant must be
provided with notice that such a sanction is being consid-
ered and an opportunity to be heard on the question of
whether it should be imposed. Because Mr. Allen was not
provided such process, we vacate the Court of Federal
Claims’ injunction and remand for further proceedings.
In arguing for affirmance, the government suggests
that the trial court did not actually impose an anti-filing
injunction. We disagree. The government would have us
focus on the fact that the trial court’s order permits Mr.
Allen to seek leave to file a new pro se case and does not
preclude him from filing a new counseled case. While these
aspects of the order mean that the courthouse doors are not
closed to Mr. Allen, the order nonetheless still imposes
meaningful restrictions on his access. Such limitations
must not only be warranted based on the record but also
may only follow the provision of necessary procedural pro-
tections.
The government next argues that even if the Court of
Federal Claims’ order is an anti-filing injunction, and no-
tice is required, Mr. Allen had sufficient notice based on
warnings provided by other courts. Most pertinently, the
Middle District had “strongly cautioned” Mr. Allen “not to
file claims lacking a legal and/or factual basis in violation
of Federal Rule of Civil Procedure 11,” and added that
“[s]anctions, including a pre-filing injunction, are options
available to the court to address continued frivolous fil-
ings.” Allen v. Suntrust Bank, No. 20-293 (M.D.N.C. Aug.
21, 2020), ECF No. 10, aff’d, 832 F. App’x 820 (4th Cir.
2021) (per curiam), cert. denied, 141 S. Ct. 2659 (2021). In
another of Mr. Allen’s cases, the Fourth Circuit had issued
an order directing him to show cause as to why he should
not be sanctioned, and thereafter enjoined him from “filing
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ALLEN v. US 9
any civil appeal in this court [i.e., the Fourth Circuit] un-
less a district court judge has certified that the appeal is
not frivolous.” Allen v. Coffee, No. 21-1934 (4th Cir. 2022),
ECF Nos. 10, 14. These courts let Mr. Allen know that his
litigation conduct could result in limits being placed on his
ability to file cases in the Middle District and in the Fourth
Circuit, but they did not put him on notice that he might
also be subject to sanction in other courts, including the
Court of Federal Claims. Nor, plainly, did the earlier warn-
ings or orders put Mr. Allen on notice that he might be sub-
jected to sanctions in other courts without first receiving
notice and an opportunity to be heard by those additional
courts. Mr. Allen, therefore, did not receive sufficient no-
tice. See generally In re Prudential Ins. Co. Am. Sales Prac.
Litig. Agent Actions, 278 F.3d 175, 191 (3d Cir. 2002)
(“[P]articularized notice is required to comport with due
process . . . [and] usually require[s] notice of the precise
sanctioning tool that the court intends to employ.”) (inter-
nal citation and quotation marks omitted).
Finally, the government emphasizes that there is noth-
ing abusive in the Court of Federal Claims’ discretionary
decision to sanction Mr. Allen. It echoes the trial court’s
findings that “Mr. Allen’s frivolous litigiousness warrants
the imposition of sanctions.” App’x 2. Because Mr. Allen
was provided neither notice nor an opportunity to be heard,
the issue of the Court of Federal Claims’ exercise of its dis-
cretion is not yet ripe. On remand, the trial court is free to
consider again imposing an anti-filing injunction, provided
that it first accords Mr. Allen his rights to notice and an
opportunity to be heard.
Accordingly, we vacate the anti-filing injunction issued
by the Court of Federal Claims and remand for further pro-
ceedings.
IV
We have considered Mr. Allen’s other arguments and
find them unpersuasive. For the reasons stated, we affirm
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10 ALLEN v. US
the Court of Federal Claims’ dismissal for lack of subject
matter jurisdiction and vacate and remand its anti-filing
injunction.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
COSTS
No costs.