Straw v. United States ( 2017 )

,,
Jfn tbe Wniteb ~tates (ourt of jfeberal QCiaim~
No. 17-1082C
December 6, 2017
FILED
DEC - 6 2017
******************* * U.S. COURT OF
ANDREW U. D. STRAW, * FEDERAL CLAIMS
*
Plaintiff, * Motion to Dismiss; In Forma
* Pauperis; Judicial Takings;
v. * Americans with Disability Act;
UNITED STATES, * 28 u.s.c. § 1500
*
Defendant. *
*
******************* *
Andrew U. D. Straw, Schaumburg, IL, prose.
John Sinclair Groat, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and
Chad A. Readier, Acting Assistant Attorney General.
OPINION
HORN, J.
On August 9, 2017, pro se plaintiff Andrew U. D. Straw, according to his
description, "a disabled lawyer," filed a complaint with this court in the above-captioned
case. Plaintiff separately filed an Application to Proceed !D. Forma Pauperis that same
day.
In his complaint, plaintiff seeks $3,000,000.00 in compensatory damages from the
United States "due to the Fifth Amendment Private Personal Property Taking of 3 federal
law licenses as part of a conspiracy to deprive me of rights I have under the ADA
[Americans with Disabilities Act of 1990], Titles II and V . .. ." (emphasis in original).
According to plaintiff, the alleged conspiracy stems from events which occurred during
plaintiff's employment with the Indiana Supreme Court. According to the complaint, in
2001, plaintiff allegedly broke his pelvis and both of his legs driving to the Indiana
Supreme Court for work. Plaintiff further alleges that the Indiana Supreme Court has
continually discriminated against him since 2001 and, that in an attempt to make plaintiff
quit his job, "took away" plaintiff's "handicap parking close [sic] to the office, an
7017 1450 DODD 13 46 0607
accommodation [plaintiff] needed after [his] car accident." In 2014, plaintiff states that he
complained to the "ADA Coordinator of the Indiana Supreme Court," who, according to
plaintiff, "immediately retaliated" against plaintiff, "attacking" plaintiff's disabilities,
"disability work, and even [plaintiff's] work helping Ukrainian refugees from the war with
Russia." According to plaintiff, the "disciplinary process then lasted 27 months and I
ended up with a suspended license for having filed 4 disability rights cases." Plaintiff
states that the Indiana Supreme Court suspended his Indiana "law license" for 180 days
without automatic reinstatement on February 14, 2017. See Matter of Straw, 68 N.E.3d
1070, 1073 (Ind.) ("For Respondent's [Mr. Straw's] professional misconduct, the Court
suspends Respondent from the practice of law in this state for a period of not less than
180 days, without automatic reinstatement, effective immediately.") (emphasis omitted),
cert. denied sub nom. Straw v. Ind. Supreme Court, 137 S. Ct. 2309 (2017). Plaintiff states
he is separately "suing the Indiana Supreme Court in federal court for relief and damages"
and has filed complaints with "local, state, and federal civil rights agencies and offices for
various aspects of the damage to me from the Indiana Supreme Court and its retaliation
and discrimination."
Following the Indiana Supreme Court's suspension of plaintiff from the practice of
law in state court in Indiana for 180 days without automatic reinstatement, plaintiff alleges
the United States District Court for the Northern District of Indiana, the United States
District Court for the Southern District of Indiana, and the United States District Court for
the Northern District of Illinois "simply followed the Indiana Supreme Court down the path
of suspending me" and "illegally punishing me in 'comity' with the Indiana Supreme
Court." See In the Matter of: Andrew U.D. Straw, No. 1:17-mc-13-TWP-DKL, (S.D. Ind.
Mar. 16, 2017) (suspending Mr. Straw from the practice of law before the court), appeal
docketed, Andrew U.D. Straw v. United States District Court, No. 17-2523, (7th Cir. July
26, 2017); 1 In the Matter of: Andrew U.D. Straw, No. 1:17-MC-5-TLS, (N.D. Ind. Mar. 21,
2017) (suspending Mr. Straw from the practice of law before the court); In the Matter of
Andrew U.D. Straw. An Attorney, No. 17-D-02, (N.D. Ill. Mar. 17, 2017) (suspending Mr.
Straw from the practice of law before the court). Plaintiff contends the three United States
District Courts, which all invited plaintiff to submit documents indicating why reciprocal
discipline would be unwarranted, did not provide him with proper hearings and "ignore[d]"
plaintiff's reasons as to why suspension should not be imposed. Moreover, plaintiff insists
the District Courts' actions violated the Takings Clause of the Fifth Amendment by
depriving plaintiff of his property rights in his "law licenses." Plaintiff asserts this court has
jurisdiction over his takings claims pursuant to 28 U.S.C. § 1491 (a)(1 ). Additionally,
plaintiff contends that "under 42 U.S.C. § 12203 and 28 C.F.R. § 35.134 ... retaliation
against ADA cases is illegal and no person may do so under any circumstances, including
1 Plaintiff has filed numerous additional documents in this court in addition to those
required by the Rules of the United States Court of Federal Claims, including a document
titled "AFFIDAVIT OF ANDREW U. D. STRAW" on September 18, 2017. This document
appears to detail plaintiff's experience when appealing what plaintiff terms "an incorrect
decision to the 7th Circuit" in Straw v. Indiana Supreme Court. See Straw v. Indiana
Supreme Court, 692 F. App'x 291 (7th Cir. 2017).
2
any federal judge who is administering the law licensing in a district court." Plaintiff alleges
this court has jurisdiction over his ADA retaliation claims under 28 U.S.C. § 1491(a)(2).
On October 10, 2017, defendant filed a motion to dismiss plaintiff's complaint for
lack of subject-matter jurisdiction under Rule 12(b)(1) (2017) of the Rules of the United
States Court of Federal Claims (RCFC), or, in the alternative, for failure to state a claim
upon which relief can be granted under RCFC 12(b)(6). Defendant argues plaintiff "has
no constitutionally protected property interest in his admission to practice before any
United States district courts" because "[a]dmission to practice before courts is not a
transferrable property right subject to compensation pursuant [sic] the Takings Clause"
and, also, that Mr. Straw's contention that his suspensions were unwarranted defeats his
takings claims because a taking can only occur when the underlying governmental action
is valid. Defendant also asserts that this court lacks jurisdiction to review the merits of a
District Court decision. Additionally, defendant contends 28 U.S.C. § 1500 "bars this
action because Mr. Straw claim [sic] that he was improper [sic] suspended" was pending
on appeal when this action was filed.
Plaintiff filed a response to the defendant's motion to dismiss, in which he states
that he learned on October 10, 2017, that his Western District of Wisconsin license was
suspended, and that he will "seek amendment to add this claim for another $1,000,000,
like the others" if his complaint is not dismissed. In response to defendant's argument
that this court lacks subject matter jurisdiction over plaintiff's complaint, plaintiff maintains
that "the property interest in my law licenses is created through substantive due process
because federal law creates these very valuable licenses" and declares "[j]udicial takings
are covered by the Fifth Amendment." Plaintiff also asserts that a "that a law license is a
fundamental right under the Privileges and Immunities Clause" and that "[i]nfringing that
right must be compensated as a Takings."2
As of the date of this opinion, the court has received and reviewed a continuous
stream of additional filings from Mr. Straw. These additional filings include a motion for
entry of a default judgment by the Clerk of the Court. 3 Mr. Straw's other filings appear to
2 In his response, plaintiff states that he incorporates "by reference all exhibits and
affidavits in the record, including my MOTION FOR SUMMARY JUDGMENT .... "
3 In the motion for default judgment, among other allegations, plaintiff argues defendant
was in default because the docket set a deadline of October 9, 2017, for defendant to
file an answer to plaintiff's complaint. In fact, plaintiff's motion to dismiss was filed
instead of an answer in accordance with RCFC 12. Moreover, pursuant to RCFC 12(a),
defendant had sixty days to file an answer to plaintiff's complaint. If the period in which
a party must a file a document ends on a Saturday, Sunday, or legal holiday, the filing
period continues to run until the same time on the next day. RCFC 6(2)(C). Columbus
Day, which was observed on October 9, 2017, is considered a legal holiday. See RCFC
6(6)(A). Thus, defendant's answer to plaintiff's complaint was not due until October 10,
2017, and defendant was not in default because it timely filed its motion to dismiss
instead of an answer in accordance with RCFC 12 on October 10, 2017.
3
be largely duplicative of statements and allegations raised in plaintiff's earlier response
to defendant's motion to dismiss. Overall, they add little, additional, relevant information
to assist the court, although the court has reviewed each of the filings.
DISCUSSION
The court recognizes that plaintiff is technically proceeding pro se, without the
assistance of counsel. When determining whether a complaint filed by a prose plaintiff is
sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction
of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-1 O (1980); Estelle v. Gamble, 429
U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, affd,
603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t]here is
no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled
out in his [or her] pleading."' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011);
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010)
(citing Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359
(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities
in a pro se plaintiffs complaint, the court 'does not excuse [a complaint's] failures."'
(quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements.'" (quoting Minehan v. United States, 75 Fed.
Cl. at 253)). Although Mr. Straw's filings were filed prose, the court notes that the above-
captioned plaintiff, by his own description, was trained as an attorney.
In the above-captioned case, plaintiff has filed an Application to Proceed !n
Forma Pauperis. In general, to provide access to this court to those who cannot pay the
filing fees mandated by Rule 77.1(c) of the RCFC, 28 U.S.C. § 1915 (2012) permits a
court to allow a plaintiff to file a complaint without payment of fees or security, under
specific circumstances. Section 1915(a)(1) states that:
Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees or security
4
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner[4] possesses [and] that the person is unable to pay
such fees or give security therefor. Such affidavit shall state the nature of
the action, defense or appeal and affiant's belief that the person is entitled
to redress.
28 U.S.C. § 1915(a)(1). Therefore, the statute at 28 U.S.C. § 1915(a)(1) requires a
person to submit an affidavit with a statement of all the applicant's assets, and that the
affidavit state the nature of the action, defense or appeal and affiant's belief that the
person is entitled to redress. See id.
When enacting the in forma pauperis statute, 28 U.S.C. § 1915, Congress
recognized that '"a litigant whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits."' Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)); see also McCullough v. United States, 76
Fed. Cl. 1, 3 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed.
Cir.), cert. denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e)
in the in forma pauperis statute, which allows courts to dismiss lawsuits determined to be
"frivolous or malicious." 28 U.S.C. § 1915(e). The United States Supreme Court has
found that "a court may dismiss a claim as factually frivolous only if the
facts alleged are 'clearly baseless' ... a category encompassing allegations that are
'fanciful' ... 'fantastic' ... and 'delusional .... "' Denton v. Hernandez, 504 U.S. at 32-
33 (internal citations omitted); see also McCullough v. United States, 76 Fed. Cl. at 3;
4 A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding in
forma pauperis applications by non-prisoner litigants in federal courts, and have
concluded that Congress did not intend for non-prisoners to be barred from being able
to proceed in forma pauperis in federal court. See,~. Floyd v. United States Postal
Serv., 105 F.3d 274, 275-76 (6th Cir.), reh'g denied (6th Cir. 1997); Schagene v. United
States, 37 Fed. Cl. 661, 663 (1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998);
see also In re Prison Litigation Reform Act, 105F.3d1131, 1134 (6th Cir. 1997)
(discussing how to administer in forma pauperis rights to a non-prisoner, thereby
acknowledging the rights of non-prisoners to apply for in forma pauperis status);
Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996) (using "sic" following the word
"prisoner" in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use of that word was
too narrow); Smith v. United States, 113 Fed. Cl. 241, 243 (2013); Powell v. Hoover,
956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that a "fair reading of the entire section
[28 U.S.C. § 1915(a)(1)] is that it is not limited to prisoner suits."). Moreover, 28 U.S.C.
§ 1915(a)(1) refers to both "person" and "prisoner." The word "person" is used three
times in the subsection, while the word "prisoner" is used only once. This court,
therefore, finds that the single use of the word "prisoner" in the language of 28 U.S.C. §
1915(a)(1) was not intended to eliminate a non-prisoner from proceeding in federal
court in forma pauperis, provided that the civil litigant can demonstrate appropriate
need. Any other interpretation is inconsistent with the statutory scheme of 28 U.S.C. §
1915.
5
Schagene v. United States, 37 Fed. Cl. at 663. Courts, however, should exercise caution
in dismissing a case under section 1915(e) because a claim that the court perceives as
likely to be unsuccessful is not necessarily frivolous. See Denton v. Hernandez, 504 U.S.
at 33. As stated by the United States Supreme Court, "a finding of factual frivolousness
is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts available to contradict
them." 19.,.
The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is "unable
to pay such fees or give security therefor." Determination of what constitutes "unable to
pay" or unable to "give security therefor," and, therefore, whether to allow a plaintiff to
proceed in forma pauperis is left to the discretion of the presiding judge, based on the
information submitted by the plaintiff or plaintiffs. See, ~. Rowland v. Cal. Men's
Colony, Unit II Men's Advisory Council, 506 U.S. 194, 217-18 (1993); Roberson v. United
States, 115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App'x 966 (Fed. Cir. 2014);
Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011). This court and its predecessors
were established to make available a user friendly forum in which plaintiffs can submit
their legitimate claims against the sovereign, limited only by the legislative decision to
waive sovereign immunity as to the types of claims allowed. In fact, prominently posted
at the entrance to this courthouse are the words of Abraham Lincoln: "It is as much the
duty of government to render prompt justice against itself, in favor of citizens, as it is to
administer the same, between private individuals."
Interpreting an earlier version of the in forma pauperis statute, the United States
Supreme Court offered the following guidance:
We cannot agree with the court below that one must be absolutely destitute
to enjoy the benefit of the statute. We think an affidavit is sufficient which
states that one cannot because of his poverty "pay or give security for the
costs ... and still be able to provide" himself and dependents "with the
necessities of life." To say that no persons are entitled to the statute's
benefits until they have sworn to contribute to payment of costs, the last
dollar they have or can get, and thus make themselves and their
dependents wholly destitute, would be to construe the statute in a way that
would throw its beneficiaries into the category of public charges. The public
would not be profited if relieved of paying costs of a particular litigation only
to have imposed on it the expense of supporting the person thereby made
an object of public support. Nor does the result seem more desirable if the
effect of this statutory interpretation is to force a litigant to abandon what
may be a meritorious claim in order to spare himself complete destitution.
We think a construction of the statute achieving such consequences is an
inadmissible one.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (omissions in
original).
6
In Fiebelkorn v. United States, for example, a Judge of the United States Court of
Federal Claims indicated that:
[T]he threshold for a motion to proceed in forma pauperis is not high: The
statute requires that the applicant be 'unable to pay such fees.' 28 U.S.C.
§ 1915(a)(1 ). To be 'unable to pay such fees' means that paying such fees
would constitute a serious hardship on the plaintiff, not that such payment
would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007); see also Fuentes v. United States,
100 Fed. Cl. at 92; Hayes v. United States, 71 Fed. Cl. 366, 369 (2006).
In his Application to Proceed In Forma Pauperis, prose plaintiff Mr. Straw indicates
that he receives an unspecified amount of income from Social Security Disability
Insurance, has minimal savings, and has been unemployed since 2008. Plaintiff's
application also lists $350.00 from "[r]efugee clients from Ukraine" and $20,500.00 from
"settlements for disability discrimination" as his other sources of income within the last
twelve months. Plaintiff's application further provides that he has monthly expenses of
approximately $1,087.00, as well as approximately $52,000.00 in student loan debt and
approximately $30,000.00 in credit card and legal debts. Although plaintiff's income and
amount of outstanding debt might qualify him to proceed in forma pauperis, as discussed
below, his application is moot because his complaint is being dismissed.
Additionally, the court notes that plaintiff is a frequent filer of complaints in federal
courts. Plaintiff has filed multiple complaints or appeals that were dismissed as frivolous
or for failure to state a claim. The statute at 28 U.S.C. § 1915(g), titled the Prison Litigation
Reform Act, was enacted with respect to prisoner plaintiffs to discourage frivolous
lawsuits and denies in forma pauperis status to repetitive prisoner complainants. It states:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section ifthe prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g); see also McLean v. United States, 566 F.3d 391, 394 (4th Cir.
2009); Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); Warren v. United States,
106 Fed. Cl. 507, 509-10 (2012); Dudley v. United States, 61 Fed. Cl. 685, 686 (2004).
Since 2014, Mr. Straw has filed at least twenty-one complaints and twelve appeals on his
own behalf. Of those filings, in federal courts at least four have been dismissed as
frivolous. See Straw v. Kloecker, 576 F. App'x 607, 609 (7th Cir. 2014) ("We agree with
the district court [for the Northern District of Illinois] that Straw's lawsuit under RICO is
frivolous, as is this appeal. Accordingly, we AFFIRM the judgment and order Straw to
SHOW CAUSE within 30 days why he should not be sanctioned under [Federal Rules of
7
Appellate Procedure] 38 for taking this appeal.") (emphasis added); Straw v. Ind. Attorney
General, No. 1:17-cv-03975-WTL-TAB, (S.D. Ind. Nov. 6, 2017) (order dismissing
plaintiff's complaint as "frivolous," noting that Mr. Straw "is developing a pattern of filing
frivolous litigation," and warning Mr. Straw that he could be subject to sanctions if he
continued to file further frivolous litigation) (emphasis added), appeal docketed, Straw v.
Ind. Attorney General, No. 17-3357 (7th Cir. Nov. 14, 2017); Straw v. Ind. Attorney
General, No. 1:17-cv-03975-WTL-TAB, (S.D. Ind. Dec. 4, 2017) (District Court, however,
denied Mr. Straw's request to proceed on appeal in forma pauperis because Mr. Straw
was pursuing his appeal "in bad faith") (internal quotation marks and citation omitted);
Straw v. Court, No. 1:15-CV-01015-RLY-DKL, 2016 WL 344720, at *5-8 (S.D. Ind. Jan.
28, 2016) (dismissing the case because Mr. Straw failed to state a claim under Title I and
Title V of the ADA and failed to state a deprivation of due process in violation of the Fifth
Amendment); Straw v. Sconiers, No. 3:14-CV-1772-JD, 2014 WL 7404065, at *1 (N.D.
Ind. Dec. 30, 2014) ("Because Straw's claims are utterly frivolous, the Court dismisses
the claims for lack of subject matter jurisdiction consistent with Rule 12(b)(1). And even if
Straw had established jurisdiction, the motions would be granted on the ground that Straw
has failed to state a claim upon which relief can be granted consistent with Rule 12(b)(6).")
(emphasis added); Straw v. Kloecker, No. 14-C-1420, 2014 WL 883289, at *2 (N.D. Ill.
Mar. 5, 2014) (denying Mr. Straw's application to proceed in forma pauperis and
dismissing the action because Mr. Straw's complaint was "legally frivolous") (emphasis
added), aff'd, 576 F. App'x 607 (7th Cir. 2014). Additionally, at least two federal judges
have dismissed complaints filed by Mr. Straw for reasons other than failure to state a
claim, and, in doing so, noted that Mr. Straw also had failed to state a claim. Straw v.
Dixon, No. 3:16-CV-276, 2016 WL 4014976, at *4 (N.D. Ind. July 27, 2016) ("Even if
Plaintiff had properly alleged that diversity jurisdiction exists, he has failed to state a claim
for abuse of process."); Straw v. Am. Bar Ass'n, No. 14-C-5194, 2015 WL 602836, at *6
(N.D. Ill. Feb. 11, 2015) ("Alternatively, even if Straw had standing to bring his claim
(which he does not), he has failed to state a claim under the ADA.").
With respect to the case currently before this court, plaintiff's complaint also fails
to establish a cognizable cause of action within the jurisdiction of this court and fails to
state a claim. The Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this court as
follows:
The United States Court of Federal Claims shall have 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 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) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee
8
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied
(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States .... " United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must ... identify a
substantive source of law that creates the right to recovery of money damages against
the United States."); Golden v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario
Power Generation, Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types .... First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. . .. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clappv. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) ....
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." !.Q.,_; see also [United States v. JTestan, 424 U.S.
[392,] 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself ... can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario Power Generation. Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
9
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell, 463 U.S. at 217; Blueport Co .. LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv .. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint." (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters. Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration. Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011 ).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff's claim, independent of any
defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2)
(2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim for relief,
"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
support a claim." Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also
Mczeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure§ 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), aff'd, 460 U.S. 325 (1983). "A plaintiff's factual allegations must 'raise
a right to relief above the speculative level' and cross 'the line from conceivable to
10
plausible.'" Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g
denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550
U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. at 555).
Plaintiff's current complaint filed in this court alleges that he suffered Constitutional,
Fifth Amendment takings of his three "federal law licenses" in the United States District
Court for the Northern District of Indiana, the United States District Court for the Southern
District of Indiana, and the United States District Court for the Northern District of Illinois.
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that the
government took a private property interest for public use without just compensation. See
Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S.
811 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762 (201 O); Gahagan v. United
States, 72 Fed. Cl. 157, 162 (2006). "The issue of whether a taking has occurred is a
question of law based on factual underpinnings.'' Huntleigh USA Corp. v. United States,
525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government
must be operating in its sovereign rather than in its proprietary capacity when it initiates
a taking. See St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed.
Cir. 2008). The United States Court of Appeals for the Federal Circuit has established a
two-part test to determine whether government actions amount to a taking of private
property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d
505, 511 (Fed. Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372
(Fed. Cir.) (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert.
denied, 516 U.S. 808 (1995)), reh'g denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139
(2005). A court first determines whether a plaintiff possesses a cognizable property
interest in the subject of the alleged takings. Then, the court must determine whether the
government action is a "'compensable taking of that property interest.'" Huntleigh USA
Corp v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co .. L.P. v. United
States, 379 F.3d at 1372).
Among its arguments, defendant urges this court to dismiss plaintiff's complaint for
failure to state a claim because plaintiff does not have a cognizable property interest in
his admission to practice law before any of the three District Courts. Plaintiff, however,
argues that "[p]ersonal property is covered [by the Takings Clause of the Fifth
Amendment] and this Court has jurisdiction over Takings Clause cases.'' Plaintiff asserts
in his response to defendant's motion to dismiss that his "property interest in [his] law
licenses is created through substantive due process" and that "a law license is a
fundamental right under the Privileges and Immunities Clause of the U.S. Constitution.''
Plaintiff also insists in his response that "[a]s a disabled person, I am a member of a
discrete and insular minority and my rights are subject to heightened scrutiny.''
(emphasis in original).
Mr. Straw appears to be alleging a judicial takings by the three identified United
States District Courts. There exist varied treatments of judicial takings claims by different
11
courts. Some courts, including the United States Court of Appeals for the Federal Circuit,
the binding Circuit Court for this court, have determined that judicial takings can exist,
although without concluding that a judicial taking actually occurred. See Smith v. United
States, 709 F.3d at 1116 ("In that case [Stop the Beach], the Court recognized that a
takings claim can be based on the action of a court."); see also Vandevere v. Lloyd, 644
F.3d 957, 964 n.4 (9th Cir.) ("[A]ny branch of state government could, in theory, effect a
taking." (citing Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S.
702, 713-15 (plurality opinion))), cert. denied, 132 S. Ct. 850 (2011). Although it is
theoretically possible for a court to effect a fundamental taking, however, the United
States Court of Appeals for the Federal Circuit also has indicated that the United States
Court of Federal Claims lacks jurisdiction over judicial takings claims that require the court
to scrutinize the decisions of other tribunals for the same plaintiff given the same set of
facts. 5 See also Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed.
Cir. 2015) ("Binding precedent establishes that the Court of Federal Claims has no
jurisdiction to review the merits of a decision rendered by a federal district court.");
lnnovair Aviation Ltd. v. United States, 632 F.3d 1336, 1344 (Fed. Cir.) ("[T]he Court of
Federal Claims does not have jurisdiction to review the decision of district courts and
cannot entertain a taking[s] claim that requires the court to scrutinize the actions of
another tribunal." (internal quotation marks omitted; brackets in original)), reh'g en bane
denied, (Fed. Cir. 2011), cert. denied, 132 S. Ct. 999 (2012); Vereda Ltda. v. United
States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) ("[T]he Court of Federal Claims cannot
entertain a taking claim that requires the court to scrutinize the actions of another tribunal."
(internal quotation marks omitted)); Allustiarte v. United States, 256 F.3d 1349, 1352
(Fed. Cir.) ('"[T]he Court of Federal Claims does not have jurisdiction to review the
decisions of district courts."' (quoting Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.
1994))), cert. denied, 534 U.S. 1042 (2001); see also Potter v. United States, 121 Fed.
Cl. 168, 169 (2015); Marti v. United States, 6 No. 09-299, 2010 WL 369212, at *2 (Fed. Cl.
5 In a non-presidential opinion, the Federal Circuit indicated that "[t]he appellant [Barth]
asked the Court of Federal Claims to scrutinize the actions of coordinate federal courts
to determine whether their actions effected a taking of his property. That was beyond the
Court of Federal Claims' jurisdiction." Barth v. United States, 76 F. App'x 944, 945-46
(Fed. Cir.), cert. denied, 540 U.S. 1049 (2003) (footnote omitted).
6 The Marti case is related to a recent decision of the undersigned, Milgroom v. United
States, 122 Fed. Cl. 779 (2015), aff'd, 651 F. App'x 1001 (Fed. Cir. 2016) (per curiam),
involving the same underlying facts as the Marti case. In the Milgroom case, this court
determined:
This court is without jurisdiction to review the alleged taking by the District
Court, a judicial taking, see Stop the Beach Renourishment, Inc. v. Florida
Dep't of Envtl. Protection, 560 U.S. 702 (2010), because review in this case
of such a taking "would require the Court of Federal Claims to scrutinize the
merits of the district court's judgment, a task it is without authority to
undertake." Shinnecock Indian Nation v. United States, 782 F.3d 1345,
1352 (Fed. Cir. 2015); see also Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994) ("[T]he Court of Federal Claims does not have jurisdiction
12
Jan. 29, 2010) (unpublished) ("[T]his court has no jurisdiction over takings claims that are
founded on a challenge to the judgment of another federal court.").
Therefore, to determine whether jurisdiction exists in the above captioned case,
this court must ascertain whether or not plaintiff's judicial takings claims require the court
to reevaluate the decisions of the United States District Court for the Northern District of
Indiana, the United States District Court for the Southern District of Indiana, and the
United States District Court for the Northern District of Illinois, including whether the case
filed in the United States Court of Federal Claims involves the same plaintiff and the same
set of facts as was analyzed in those District Court cases. Although his complaint alleges
that a taking occurred when the District Courts each suspended plaintiff from the practice
of law for 180 days, in his response to defendant's motion to dismiss, plaintiff argues "[n]o
examination of the district court decisions is being requested, only verification that my
licenses were suspended and providing the monetary takings I asked. Not one jot of
these other courts' decisions is being asked to be changed here. I just want
compensation."
Following the Indiana Supreme Court's 180 day suspension of Mr. Straw's license
to practice law in Indiana, the United States District Court for the Southern District of
Indiana issued an order to Mr. Straw to show cause "why reciprocal discipline should not
be imposed in accordance with Rule II of the Local Rules of Disciplinary Enforcemenf' of
the court. In the Matter of: Andrew U.D. Straw, No. 1:17-mc-13-TWP-DKL, (S.D. Ind.
March 16, 2017), appeal docketed, Andrew U.D. Straw v. United States District Court,
No. 17-2523 (7th Cir. July 26, 2017). The United States District Court for the Southern
District of Indiana found that Mr. Straw's submission to the court failed to "provide a
sufficient bases [sic] to overcome reciprocal suspension in this court" and suspended Mr.
Straw for 180 days without automatic reinstatement. kl Similarly, the United States
District Court for the Northern District of Indiana imposed reciprocal discipline "pursuant
to N.D. Ind. L. R. 83-6.8(c)." In the Matter of: Andrew U.D. Straw, No. 1:17-MC-5-TLS,
(N.D. Ind. Mar. 21, 2017). The United States District Court for the Northern District of
Indiana also reviewed Mr. Straw's submission to the court and found that Mr. Straw's
to review the decisions of district courts or the clerks of district courts
relating to proceedings before those courts."). Just as the Court of Federal
Claims does not have jurisdiction to review the decisions of the United
States District Courts, the Court of Federal Claims also does not have
jurisdiction to review decisions of the United States Bankruptcy Courts. See
Allustiarte v. United States, 256 F.3d 1349, 1351 (Fed. Cir. 2001) (holding
that the Court of Federal Claims does not have jurisdiction to entertain
judicial takings claims against federal bankruptcy courts because "[s]uch a
determination would require the court to scrutinize the actions of the
bankruptcy trustees and courts"), cert. denied, 534 U.S. 1042 (2001 ); Mora
v. United States, 118 Fed. Cl. 713, 716 (2014) ("[T]his court does not have
jurisdiction to review the decisions of state courts, federal bankruptcy
courts, federal district courts, or federal circuit courts of appeals.").
Milgroom v. United States, 122 Fed. Cl. at 801-02.
13
submission was not sufficient to avoid reciprocal discipline . .!Q,_ The United States District
Court for the Northern District of Indiana suspended Mr. Straw for 180 days without
automatic reinstatement and noted that Mr. Straw's submissions "only highlight that the
suspension is appropriate, as [Mr. Straw] is either unwilling or incapable of accepting that
his claims did not have 'a basis in law and fact ... that is not frivolous .... "' .!Q,_ (citation
omitted). Additionally, in the United States District Court for the Northern District of Illinois,
the court determined that Mr. Straw's submission to the court requesting that the court
not impose discipline identical to that imposed by the Indiana Supreme Court did not
satisfy any of "the grounds set forth in Local Rule 83.26(e)" and suspended Mr. Straw for
180 days without automatic reinstatement. In the Matter of Andrew U.D. Straw, An
Attorney, No. 17-D-02, (N.D. Ill. March 17, 2017). Each of these United States District
Courts interpreted their own local rules and decided to impose reciprocal discipline and
suspend plaintiff's admission to practice before their particular court. This court, therefore,
lacks jurisdiction over plaintiff's judicial takings claims because this court should not
review whether the three United States District Courts properly interpreted their own local
rules when deciding whether to suspend plaintiff.7
Plaintiff's own submissions to this court contradict his assertion that when alleging
a conspiracy and a taking by each of the District Courts to deprive him of his right to
practice law in those District Courts, he is not challenging the propriety of the District
Courts' decisions. Plaintiff's argument in his reply to defendant's motion to dismiss, which
states "[n]o examination of the district court decisions is being requested, only verification
that my licenses were suspended .... I just want compensation," resembles the plaintiffs'
argument in Allustiarte v. United States. In Allustiarte v. United States, the plaintiffs
unsuccessfully claimed they were "not asking the Court of Federal Claims to review" the
Bankruptcy Court's judgments, but were only seeking to obtain just compensation for the
takings. Allustiarte v. United States, 256 F.3d at 1351; see also Shinnecock Indian Nation
v. United States, 782 F.2d at 1353 ("The Court of Federal Claims, however, is without
authority to adjudicate the Nation's claim that it suffered a compensable taking at the
hands of the district court."); and the undersigned's decision in Petro-Hunt, L.L.C. v.
United States, 126 Fed. Cl. 367, 384 (2016) (observing that plaintiff's argument that the
United States Court of Appeals for the Fifth Circuit incorrectly interpreted and applied
case law precedent undercut plaintiff's assertion that he was not challenging the court's
decision), aff'd, 862 F.3d 1370 (Fed. Cir. 2017). Plaintiff is, in fact, seeking to have this
court review the same factual issues that were before the United States District Court for
the Northern District of Indiana, the United States District Court for the Southern District
of Indiana, and the United States District Court for the Northern District of Illinois, which
this court cannot do.
7 On May 19, 2017, the Virginia State Bar Disciplinary Board also convened a hearing to
determine whether the Board should impose the same discipline on plaintiff as imposed
by the Indiana Supreme Court. After holding a hearing in which plaintiff appeared
telephonically, the Board found "that the conduct resulting in the Respondent's
suspension in Indiana is not conduct that would be grounds for disciplinary action in
Virginia." The Virginia Board elected not to impose reciprocal discipline on plaintiff.
14
Moreover, this court does not have jurisdiction over plaintiff's takings claims
because the United States Court of Federal Claims may only exercise jurisdiction under
the Fifth Amendment when the claimant "concede[s] the validity of the government action
which is the basis of the taking claim to bring suit under the Tucker Act .... " Tabb Lakes.
Ltd. v. United States, 10 F.3d 796, 802-03 (Fed. Cir. 1993); see also Mahoney v. United
States, 129 Fed. Cl. 589, 592-93 (2016); Lea v. United States, 120 Fed. Cl. 440, 445
(2015). In this case, the initial disciplinary action was taken by Indiana's highest state
court, and Mr. Straw has not conceded the validity of the three District Courts' actions
which imposed reciprocal discipline. In sum, plaintiff has not alleged any valid takings
claims over which this court has jurisdiction.
Plaintiff further asserts 28 U.S.C. § 1491 provides this court with jurisdiction over
his "ADA retaliation claims" against the three federal District Courts which issued orders
suspending plaintiff's admissions to practice law. This court, however, lacks subject
matter jurisdiction over plaintiff's ADA retaliation claims for several reasons. First, as
discussed above, to demonstrate that the Tucker Act provides jurisdiction over claims
where a contract between the claimant and government did not exist and no payment
has been made to the government, the claimant must prove that the particular provision
of law relied upon is money-mandating. See,~. United States v. Navajo Nation, 556
U.S. at 290; Ontario Power Generation, Inc. v. United States, 369 F.3d at 1301. The
ADA, however, is not a money-mandating law. See Dziekonski v. United States, 120
Fed. Cl. 806, 809-1 O (2015) (noting that the ADA is not a money-mandating provision
that would provide the COFC with jurisdiction) (citation omitted); Shipman v. United
States, 118 Fed. Cl. 701, 707 (2014) ("[T]he court does not have subject matter
jurisdiction over claims alleging a violation of the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101 et seq., because the ADA is not a money-mandating source
of law.") (internal quotation marks and citation omitted). Moreover, the United States
District Courts possess exclusive jurisdiction over ADA claims. See,~. McCauley v.
United States, 38 Fed. Cl. 250, 266 (1997) (citing 42 U.S.C. § 12117(a)) (finding the
district courts had exclusive jurisdiction over claims brought under the ADA), aff'd, 152
F.3d 948 (Fed. Cir. 1998). Thus, this court is not the proper forum to seek judicial relief
under the ADA. kL see Johnson v. United States, 97 Fed. Cl. 560, 564 (2011) ("The
Court notes that Federal district courts have exclusive jurisdiction over the ADA and
Rehabilitation Act claims."); Searles v. United States, 88 Fed. Cl. 801, 805 (2009)
("Indeed, the ADA does not apply to the federal government as an employer and district
courts hold exclusive jurisdiction over ADA claims.").
Plaintiff also asserts that this court has jurisdiction under Title II of the ADA arising
under 28 C.F.R. § 35.134. Under 28 C.F.R. § 35.134(a), no "private or public entity shall
discriminate against any individual because that individual has opposed any act or
practice made unlawful by this part, or because that individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
the Act or this part." The section of 28 C.F.R. § 35.134(b) provides:
No private or public entity shall coerce, intimidate, threaten, or interfere with
any individual in the exercise or enjoyment of, or on account of his or her
15
having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right
granted or protected by the Act or this part.
"Private or public entity" has been defined as any state or local government, any
instrumentality of a state or local government, or the National Railroad Passenger
Corporation. 28 C.F.R. § 35.104. The ADA does not apply to the United States District
Court for the Northern District of Indiana, the United States District Court for the
Southern District of Indiana, and the United States District Court for the Northern District
of Illinois because those federal courts are not state or local governments or
instrumentalities of such as defined by 28 C.F.R. § 35.104. See Cellular Phone
Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000) (per curiam) ("Title II of the ADA is
not applicable to the federal government."), cert. denied, 531 U.S. 1070 (2001); Pierce
v. United States, 117 Fed. Cl. 798, 801 (2014) (stating that neither the United States
Tax Court nor the United States District Court for the Eastern District of California were
a "public entity" for purposes of the ADA) (citing United States v. Wishart, 146 F. App'x
171 (9th Cir. 2005)), aff'd, 590 F. App'x 1000 (Fed. Cir. 2015); Grayv. United States, 69
Fed. Cl. 95, 101 n.5 (2005)); Agee v. United States, 72 Fed. Cl. 284, 289 (2006)
(concluding that the COFC does not have jurisdiction over claims arising under Title II of
the ADA).
Finally, regardless, defendant asserts plaintiffs claims against the United States
would be barred by 28 U.S.C. § 1500, which provides:
The United States Court of Federal Claims shall not have jurisdiction of any
claim for or in respect to which the plaintiff or his assignee has pending in
any other court any suit or process against the United States or any person
who, at the time when the cause of action alleged in such suit or process
arose, was, in respect thereto, acting or professing to act, directly or
indirectly under the authority of the United States.
The application of section 1500 turns on whether a plaintiff, at the time suit was filed in
the Court of Federal Claims, had a suit pending in another federal court against the United
States or a person acting under authority of the United States, based on substantially the
same operative facts as the suit filed in this court, regardless of the relief sought. See
United States v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011). "The question of
whether another claim is 'pending' for purposes of§ 1500 is determined at the time at
which the suit in the Court of Federal Claims is filed, not the time at which the Government
moves to dismiss the action." Loveladies Harbor. Inc. v. United States, 27 F.3d 1545,
1548 (Fed. Cir. 1994) (discussing the United States Supreme Court's opinion in Keene
Corp. v. United States, 508 U.S. 200 (1993)). Indeed, "'the jurisdiction of the Court
depends upon the state of things atthe time of the action brought.'" Keene Corp. v. United
States, 508 U.S. at 207 (quoting Mollan v. Torrance, 22 U.S. 537, 539 (1824) (Marshall,
C.J.) (other citations omitted) (noting that the Court of Federal Claims correctly applied
section 1500 by "looking to the facts existing when Keene filed each of its complaints").
When a District Court has entered judgment dismissing a case, the United States Court
of Appeals for the Federal Circuit has established that once "a notice of appeal is filed,"
16
then the case is "pending" under 28 U.S.C. § 1500. Brandt v. United States, 710 F.3d
1369, 1380 (Fed. Cir. 2013).
The United States Supreme Court offered some clarification regarding the effect
of 28 U.S.C. § 1500 in Tohono O'Odham Nation. In the words of the United States
Supreme Court, section 1500 "bars jurisdiction in the CFC [Court of Federal Claims] not
only if the plaintiff sues on an identical claim elsewhere - a suit 'for' the same claim - but
also if the plaintiff's other action is related although not identical - a suit 'in respect to' the
same claim." United States v. Tohono O'Odham Nation, 563 U.S. at 312. The Supreme
Court explained, "two suits are for or in respect to the same claim when they are based
on substantially the same operative facts." !fl at 318 (citing Keene Corp. v. United States,
508 U.S. 200, 206 (1993)).
There is, however, no set test to determine when, according to the Supreme Court,
"two suits have sufficient factual overlap to trigger the jurisdictional bar." United States v.
Tohono O'Odham Nation, 563 U.S. at 318. Although the assessment must be on a case
by case factual basis, the Tohono O'Odham Nation case provides a general framework
for consideration. In its decision, the Supreme Court stated in Tohono O'Odham Nation:
The remaining question is whether the Nation's two suits have sufficient
factual overlap to trigger the jurisdictional bar. The CFC [United States
Court of Federal Claims] dismissed the action here in part because it
concluded that the facts in the Nation's two suits were, "for all practical
purposes, identical." 79 Fed. Cl. 645, 656 (2007). It was correct to do so.
The two actions both allege that the United States holds the same assets in
trust for the Nation's benefit. They describe almost identical breaches of
fiduciary duty - that the United States engaged in self-dealing and
imprudent investment, and failed to provide an accurate accounting of the
assets held in trust, for example. Indeed, it appears that the Nation could
have filed two identical complaints, save the caption and prayer for relief,
without changing either suit in any significant respect. Under § 1500, the
substantial overlap in operative facts between the Nation's District Court
and CFC suits precludes jurisdiction in the CFC.
!fl at 317.
Plaintiff appealed the United States District Court for the Southern District of
Indiana's order suspending plaintiff's admission to the court for 180 days to the United
States Court of Appeals for the Seventh Circuit on July 26, 2017, which was two weeks
before plaintiff filed his complaint with this court. 8 See Andrew U.D. Straw v. United States
8 It appears that Mr. Straw has not appealed the decision by the United States District
Court for the Northern District of Indiana in In the Matter of: Andrew U.D. Straw, No. 1:17-
MC-5-TLS, (N.D. Ind. Mar. 21, 2017), or the decision by the United States District Court
for the Northern District of Illinois in In the Matter of Andrew U.D. Straw, An Attorney, No.
17-D-02, (N.D. Ill. Mar. 17, 2017).
17
District Court, No. 17-2523 (?th Cir. July 26, 2017). In the docketing statement in the
Circuit Court, Mr. Straw sought review of whether "the Southern District of Indiana has
the authority to impose discipline based on cases in other districts" and whether Mr. Straw
has "an absolute right not to experience any discrimination or retaliation for filing any
disability rights complaint or lawsuit under 42 U.S.C. § 12203, 28 C.F.R. § 35.134, and
explained in the technical assistance manual at http://www.ada.gov/reg2.htm." )fl Upon
review, it is apparent that the initial case in United States District Court for the Southern
District of Indiana and the appeal, which, clearly, was pending when plaintiff filed his
complaint in this court, arise from substantially the same operative facts, which revolve
around whether Mr. Straw's suspension by the Indiana Supreme Court and the United
States District Court for the Southern District of Indiana were proper. Therefore, his claims
filed in this court are barred 28 U.S.C. § 1500. See United States v. Tohono O'Odham
Nation, 563 U.S. at 317; see also Trusted Integration. Inc. v. United States, 659 F.3d at
1165 (finding that 28 U.S.C. § 1500 barred two of the plaintiff's three claims when the
plaintiff, at the time it filed suit in the United States Court of Federal Claims, had a
complaint pending in a District Court that involved "nearly identical conduct").
Finally, this court lacks jurisdiction over plaintiff's allegations that the District
Courts' decisions violated the Due Process Clause of the Fifth Amendment. The Due
Process Clause "does not 'mandate money damages by the Government."' Chittenden
v. United States, 126 Fed. Cl. 251, 260 (2016) (quoting Smith v. United States, 36 F.
App'x. 444, 446 (Fed. Cir.) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.
1995)), reh'g denied (Fed. Cir.), cert. denied, 537 U.S. 1010 (2002)), aff'd, 663 F. App'x
934 (Fed. Cir. 2016); see also Golden v. United States, 118 Fed. Cl. 764, 768 (2014)
(finding the court lacked jurisdiction over plaintiff's claim that the United States Supreme
Court violated plaintiff's due process rights by disbarring plaintiff without providing notice
to plaintiff). Also to the extent plaintiff argues the District Courts' decisions violated the
Privilege and Immunities Clause of Article IV of the United States Constitution, this court
likewise finds that it lacks jurisdiction over such a claim because the Privileges and
Immunities Clause does not mandate payment of money by the federal government. See
Howell v. United States, 127 Fed. Cl. 775, 790 (2016); lvaldy v. United States, 123 Fed.
Cl. 633, 637 (2015), aff'd, 655 F. App'x 813, 815 (Fed. Cir. 2016) (citations omitted).
Additionally, this court lacks jurisdiction over claims arising under the Equal Protection
Clause of the Fifth Amendment. See Joshua v. United States, 17 F.3d at 379; Stephenson
v. United States, 58 Fed. Cl. 186, 193 (2003). In deciding whether an applicant is qualified
to practice law before a state court, such as Indiana, and, more particularly, the three
federal District Courts addressed in plaintiff's complaint, each such court must make an
individualized determination as to whether the applicant has satisfied the established
state or federal criteria for admission and continued practice. Each federal court
establishes its own criteria to establish when reciprocal suspension or disbarment is
appropriate. See LCrR. 83.11; N.D. Ind. R. 83-5; S.D. Ind. R. 83-5. Plaintiff does not have
a constitutionally protected property interest in his admissions before a court. See Conti
v. United States, 291 F.3d 1334, 1342 (Fed. Cir. 2002), cert. denied, 537 U.S. 1112
(2003).
18
CONCLUSION
For the foregoing reasons, the court lacks jurisdiction to adjudicate any of plaintiff's
claims. Accordingly, the court GRANTS defendant's motion to dismiss. Plaintiff's
complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with
this Opinion.
IT IS SO ORDERED.
``~
MARIAN BLANK HORN
Judge
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