Omran v. United States , 629 F. App'x 1005 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MOHAMMED AHMED HASSAN OMRAN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5124
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00186-PEC, Chief Judge Patricia E.
Campbell-Smith.
______________________
Decided: December 11, 2015
______________________
MOHAMMED AHMED HASSAN OMRAN, Trout, LA, pro se.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
DONALD E. KINNER.
______________________
2 OMRAN v. US
Before REYNA, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
Mohammed Ahmed Hassan Omran pro se appeals the
United States Court of Federal Claims dismissal of his
claims against the United States and denial of his motion
for appointment of counsel. Because the Court of Federal
Claims correctly held that it lacked subject matter juris-
diction over Mr. Omran’s claims, we affirm. Additionally,
we affirm the Court of Federal Claims’ decision not to
appoint counsel for Mr. Omran.
BACKGROUND
Mr. Omran seeks compensation in the Court of Fed-
eral Claims for alleged violations of his rights during his
arrest, trial, and conviction for immigration offenses. In
2012 he was arrested and indicted for falsely claiming to
be a United States citizen. Mr. Omran alleges that Immi-
gration and Customs Enforcement officers conducted an
illegal search and seizure of his home and possessions in
violation of the Fourth Amendment. During the ensuing
proceedings, his counsel filed a motion to dismiss the case
allegedly against Mr. Omran’s instructions in violation of
his right to effective assistance of counsel under the Sixth
Amendment. Mr. Omran did not prevail at the Immigra-
tion Court and was granted voluntary departure, but he
did not depart.
Mr. Omran was rearrested and indicted for failing to
depart the United States. He was tried and, on February
5, 2015, convicted in the United States District Court for
the Western District of Louisiana. Mr. Omran alleges
that he was denied the right to call witnesses in his own
defense at trial in violation of the Sixth Amendment.
On February 26, 2015, Mr. Omran then filed a com-
plaint with the Court of Federal Claims. He subsequently
filed three motions requesting (1) to proceed in forma
pauperis, (2) a jury trial, and (3) appointment of counsel.
OMRAN v. US 3
On April 27 the United States moved to dismiss his
claims for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Rules of the U.S. Court of Federal
Claims.
In the criminal proceedings in the Western District of
Louisiana, Mr. Omran was sentenced to six months
imprisonment on May 11, 2015. He has appealed that
case to the United States Court of Appeals for the Fifth
Circuit. See United States v. Mohamed Omran, No. 15-
30461 (5th Cir.). That appeal proceeds separately.
In the Court of Federal Claims, Chief Judge Camp-
bell-Smith issued a thorough Opinion and Order on June
30, 2015 granting the United States’ motion to dismiss all
of Mr. Omran’s claims and denying his motion for ap-
pointment of counsel. Mr. Omran appealed those two
decisions. The Opinion and Order also granted Mr.
Omran’s motions to proceed in forma pauperis and denied
his motion for a jury trial. These further decisions were
not appealed.
DISCUSSION
This Court reviews de novo questions of statutory in-
terpretation within its exclusive jurisdiction. Strickland
v. United States, 199 F.3d 1310, 1313 (Fed. Cir. 1999).
This applies to both questions of subject matter jurisdic-
tion and appointment of counsel in the Court of Federal
Claims. Mudge v. United States, 308 F.3d 1220, 1224
(Fed. Cir. 2002); see Lariscey v. United States, 861 F.2d
1267, 1270 (Fed. Cir. 1988). Although we afford pro se
plaintiffs leniency for mere formalities, we cannot waive
or overlook jurisdictional requirements. Kelley v. Sec’y,
U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).
On appeal Mr. Omran argues that his Sixth Amend-
ment rights were violated because he was denied his right
to use compulsory process to obtain witnesses in his favor.
He asserts that the Tucker Act provides jurisdiction for
4 OMRAN v. US
this claim because it arises under the Constitution.
Regarding the appointment of counsel, Mr. Omran argues
that his incarceration, and resulting lack of access to legal
books and the courts, create an exceptional circumstance
necessitating the appointment of counsel.
The government’s response largely tracks the under-
lying Court of Federal Claims Opinion and Order. Both
correctly explain that the Tucker Act, specifically 28
U.S.C. § 1491(a)(1), is merely a jurisdictional statute that
does not itself create causes of action or the right to
monetary relief. To invoke the Court of Federal Claims’
jurisdiction, a claim must be one that is created by a
provision allowing recovery of money damages. United
States v. Testan, 424 U.S. 392, 398, 96 S. Ct. 948, 953
(1976). The Sixth Amendment does not itself create a
right to recover money damages, and Mr. Omran has
pointed to no money mandating provision as the basis for
his complaint. Even if his claim is considered as a mone-
tary claim based on unjust conviction, Mr. Omran has not
pleaded or shown that “[h]is conviction has been reversed
or set aside on the ground that he is not guilty of the
offense of which he was convicted,” etc., as required by 28
U.S.C. § 2513.
While Mr. Omran does not address in his informal
brief the other constitutional amendments and statutes
listed in his complaint, we have considered these potential
bases for jurisdiction as well. We agree with the Court of
Federal Claims’ analysis regarding these additional
grounds, and we do not repeat that analysis here. The
Court of Federal Claims correctly found that it lacks
jurisdiction over Mr. Omran’s claims.
Regarding appointment of counsel, the government
again echoes the Court of Federal Claims Opinion and
Order that appointment is unnecessary because there is
no jurisdiction. We agree. Here, as we have done before,
we consider this question in light of the Supreme Court’s
OMRAN v. US 5
guidance. Lariscey, 861 F.2d at 1270 (Fed. Cir. 1988)
(citing Lassiter v. Department of Social Servs., 452 U.S.
18, 101 S. Ct. 2153 (1981)). To the extent Mr. Omran
seeks to use a suit in the Court of Federal Claims to
challenge his conviction, the Court of Federal Claims
lacks jurisdiction to hear it, as affirmed above. Even if
there were other potential claims that Mr. Omran might
present in the Court of Federal Claims, only a monetary
claim against the government would be at issue. See 28
U.S.C. § 1491; United States v. Mitchell, 463 U.S. 206,
217, 103 S. Ct. 2961, 2968 (1983). With only monetary
compensation potentially at stake, there is no private
interest, government interest or risk of erroneous decision
here strong enough to overcome “the presumption that
there is a right to appointed counsel only where the
indigent, if he is unsuccessful, may lose his personal
freedom.” Lassiter, 452 U.S. at 27. Given Mr. Omran’s
lack of a right to appointment of counsel and the proper
dismissal of the claims he did bring, we find no error in
the Court of Federal Claims’ denial of Mr. Omran’s mo-
tion for appointment of counsel.
CONCLUSION
For these reasons, we affirm the United States Court
of Federal Claims’ dismissal of Mr. Omran’s claims and
denial of his motion for appointment of counsel.
AFFIRMED
COSTS
Each party shall bear its own costs.