Avery v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-992
(Filed: June 10, 2021)
NOT FOR PUBLICATION
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DARRELL AVERY, *
*
Plaintiff, *
* Pro Se Complaint; Sua Sponte
v. * Dismissal for Lack of Subject-Matter
* Jurisdiction; RCFC 12(h)(3).
THE UNITED STATES, *
*
Defendant. *
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Darrell Avery, Cumberland, MD, pro se.
John Manuel McAdams, U.S. Department of Justice, Civil Division, Washington, DC, counsel
for Defendant.
ORDER AND OPINION
DIETZ, Judge.
“A court may and should raise the question of its jurisdiction sua sponte at any time it
appears in doubt.” Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988).
Darrell Avery, a pro se plaintiff, filed a complaint alleging violations of his constitutional rights
and claiming ineffective assistance of counsel. Because Mr. Avery’s complaint fails to cite a
money-mandating source of law, his complaint must be DISMISSED for lack of subject-matter
jurisdiction.
I. BACKGROUND
Mr. Avery filed his complaint in this Court on February 22, 2021 seeking to overturn his
conviction and sentencing in a Maryland state court based on alleged violations of his
constitutional rights and an ineffective assistance of counsel claim. Compl. at 1-2, ECF No. 1.
Mr. Avery requests “resentenc[ing], new trial, or any other process to correct this matter” and
“[r]easonable settlement compensation” and “[a]ttorney fees.” Id. at 2. On March 10, 2021, the
Court—believing it lacks subject-matter jurisdiction—ordered Mr. Avery to show cause as to
why his complaint should not be dismissed—explicitly instructing him to “identify which
source(s) of law he is invoking and explain why this Court has jurisdiction[.]” Show Cause
Order, ECF No. 7. The Court also ordered Mr. Avery to pay the filing fees or file an application
to proceed in forma pauperis. Id. In response, Mr. Avery filed an application to proceed in forma
pauperis. Pl.’s Mot. to Proceed In Forma Pauperis, ECF No. 8. Mr. Avery, however, did not
identify a money-mandating source of law or otherwise explain why this Court has jurisdiction.
II. DISCUSSION
“Subject-matter jurisdiction may be challenged at any time . . . by the court sua sponte.”
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); see RCFC 12(h)(3). Although
pleadings drafted by pro se plaintiffs are held to a “less stringent standard than formal pleadings
drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se plaintiff’s pleadings
must still meet the Court’s jurisdictional requirements. See Kelley v. Sec’y, U.S. Dep’t of Labor,
812 F.2d 1378, 1380 (Fed. Cir. 1987). “If the court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action.” RCFC 12(h)(3).
This Court’s jurisdiction is limited under the Tucker Act to “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) (2018).
The Tucker Act “does not create a substantive cause of action” but rather requires a plaintiff to
“identify a substantive source of law that creates the right to recover money damages against the
United States.” Rick’s Mushroom Serv. v. United States, 521 F.3d. 1338, 1343 (Fed. Cir. 2008)
(citing United States v. Mitchell, 463 U.S. 206, 216 (1983)). Not every claim that identifies the
Constitution as a source of law will establish jurisdiction in this Court. Mitchell, 463 U.S. at 216.
To invoke this Court’s jurisdiction based on the Constitution, the plaintiff must demonstrate that
the constitutional provision “expressly creates a substantive right enforceable against the federal
government for money damages.” LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)
(citing United States v. Testan, 424 U.S. 392, 398 (1976)). The absence of a money-mandating
source of law is fatal to this Court’s jurisdiction. Fisher v. United States, 402 F.3d 1167, 1173
(Fed. Cir. 2005).
Mr. Avery’s complaint—given a liberal reading—alleges due process violations under
the Fourteenth Amendment and ineffective assistance of counsel under the Sixth Amendment.
Compl. at 1-2. It is well established that these constitutional provisions do not mandate the
payment of money damages by the United States. See LeBlanc, 50 F.3d at 1028 (finding due
process violations are not a sufficient basis for jurisdiction because they do not mandate payment
of money); Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010) (“[The] Federal Circuit has
held expressly that [this Court] does not have jurisdiction over claims arising under the Sixth
Amendment . . or the Fourteenth Amendment . . . because they do not mandate the payment of
money.”); Smith v. United States, 51 Fed. Cl. 36, 38 (2001) (finding that the Court of Federal
Claims lacks jurisdiction over Sixth Amendment ineffective assistance of counsel claims). Thus,
because Mr. Avery’s complaint does not identify a money-mandating source of law, this Court
lacks subject-matter jurisdiction, and his complaint must be dismissed.1
1
In addition to his failure to identify a money-mandating source of law, Mr. Avery’s allegations appear to be against
individuals, not the United States government. See Compl. at 1. The Court likewise lacks subject-matter jurisdiction
over claims against parties other than the United States government. United States v. Sherwood, 312 U.S. 584, 588
(1941) (“[I]f the relief sought is against others than the United States the suit as to them must be ignored as beyond
the jurisdiction of the [C]ourt.”).
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III. CONCLUSION
For the reasons above, Mr. Avery’s complaint is DISMISSED WITHOUT
PREJUDICE pursuant to RCFC 12(h)(3). Plaintiff’s motion for leave to proceed in forma
pauperis is GRANTED for the limited purpose of determining this Court’s jurisdiction. The
Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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