Phillips v. United States ( 2023 )

In the United States Court of Federal Claims
No. 22-1709
(Filed: January 30, 2023)
(NOT TO BE PUBLISHED)
___________________________________
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DEAN ERVIN PHILLIPS, )
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Plaintiff, )
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v. )
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UNITED STATES, )
)
Defendant. )
___________________________________ )
Dean Ervin Phillips, pro se, Centralia, Washington.
Joshua D. Tully, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. Appearing with him on the
briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division,
Patricia M. McCarthy, Director, and Corinne A. Niosi, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER
Plaintiff Dean Ervin Phillips submitted a complaint to the Clerk of this court on
November 14, 2022. See Compl., ECF No. 1. Mr. Phillips named as defendants Mr. Cooper
(Nationstar Mortgage, LLC d/b/a Mr. Cooper), Affinia Default Services, LLC, their employees
Laura Coughlin, Jay Bray, and Christopher Marshall, and the United States. See Compl. ¶¶ 2-6,
55; Compl. Ex. 1, at 2. In the complaint, Mr. Phillips alleges that defendants “trespass[ed] upon
[his] private property” in violation of the Fifth Amendment, starting on July 27, 2022 and
continuing thereafter. See Compl. ¶¶ 18, 21. He also alleges a violation of 15 U.S.C. §
1692c(a), which restricts debt collectors’ communication with consumers. Compl. ¶ 17; see 15
U.S.C. § 1692c(a). Specifically, he alleges three counts: (1) administering property without
right, (2) abuse of process, and (3) abusive debt collection practice. Compl. ¶¶ 28-51. Mr.
Phillips’s suit arises from efforts by private companies to collect his home mortgage debt. See
Compl. ¶¶ 28-51; Compl. Ex. 1. In his prayer for relief, Mr. Phillips asks the court to order five
million dollars in punitive damages as well as actual, compensatory, and additional punitive
damages. See Compl. ¶¶ 56-57.
Mr. Phillips also submitted an incomplete motion for leave to proceed in forma pauperis
(IFP) on November 14, 2022. See Mot. for Leave to Proceed IFP, ECF No. 2. On November 27,
2022, the court rejected Mr. Phillips’s motion to proceed IFP and directed him to complete an
IFP application or submit the filing fees within 30 days. See Order of Nov. 22, 2022, ECF No. 6.
Mr. Phillips then submitted a motion for reconsideration of his IFP motion, which was filed by
leave of the court on January 4, 2023. See Pl.’s Mot. for Recons., ECF No. 10. In addition, Mr.
Phillips submitted a motion to show authority, which was filed by leave on January 11, 2023,
challenging the government attorney’s authority in this case. Pl.’s Mot. to Show Authority, ECF
No. 12.
On January 17, 2023, the government filed a motion to dismiss Mr. Phillips’s complaint
along with a response to Mr. Phillips’s motion to show authority. Def.’s Mot. to Dismiss and
Opp’n to Pl.’s Mot. to Show Authority, ECF No. 13. The government asks the court to dismiss
the case for “failure to comply with the [c]ourt’s order to pay the required filing fee or submit an
application to proceed [IFP], lack of subject[-]matter jurisdiction, and failure to state a claim
upon which relief can be granted.” Id. at 1. The government also responds that the
government’s attorney has authority to represent the United States in this case. Id. at 8. On
January 26, 2023, plaintiff then filed a motion to strike defendant’s motion to dismiss and
response to motion to show authority. Pl.’s Mot. to Strike, ECF No. 15. On January 26, 2023,
Mr. Phillips filed a motion for an emergency injunction or protective order. Pl.’s Mot. for
Emergency Inj. or Protective Order. That motion was denied on January 27, 2023. See Order,
ECF No. 19. On January 27, 2023, the government filed a response to defendant’s motion to
strike and a motion to stay the case until the court acts on its IFP order or on the government’s
motion to dismiss. Def.’s Opp’n to Mot. to Strike, ECF No. 16; Def.’s Mot. to Stay, ECF No.
17. On January 30, 2023, Plaintiff again moved to strike “all docket entries” filed by the
government. Pl.’s Second Mot. to Strike, ECF No. 23. The various motions are ready for
disposition.
DISCUSSION
A. Failure to File IFP Application or Filing Fee
Mr. Phillips has not paid the court’s filing fee or filed a complete IFP application. To
proceed with a civil action in this court, a plaintiff must either pay $402.00 in fees—a $350.00 filing
fee plus a $52.00 administrative fee—or request authorization to proceed without prepayment of fees
by submitting a signed application to proceed IFP. See 28 U.S.C. §§ 1914, 1915; U.S. Courts, U.S.
Court of Federal Claims Fee Schedule, www.uscourts.giv/services-forms/fees/us-court-federal-
claims-fee-schedule (last visited Jan. 30, 2023). Plaintiff submitted his complaint without the filing
fees or a completed IFP application. See Mot. for Leave to Proceed IFP. Plaintiff was
subsequently ordered to complete an IFP application or file the fee and was sent an IFP
application. See Order, Nov. 27, 2022. Rather than completing the IFP application, Mr. Phillips
filed a motion for reconsideration, rejecting the proposition that he “has a financial obligation to
access the judicial courts of the United States.” Pl.’s Mot. for Recons. Mr. Phillips stated that he has
no financial obligation “since he is not exercising a privilege of Interstate or Foreign Commerce.”
Id. Because Mr. Phillips did not submit an IFP application or pay the filing fee, this action shall be
dismissed under Rule 41(b) of the Rules of the United States Court of Federal Claims (RCFC).
RCFC 41(b).
2
B. Lack of Subject-Matter Jurisdiction and Failure to State a Claim upon which Relief
can be Granted
Mr. Phillips has not alleged a claim over which the court has subject-matter jurisdiction,
RCFC 12(b)(1), or a claim upon which relief can be granted, RCFC 12(b)(6).
1. Standards for decision
The court must have subject-matter jurisdiction over a claim to consider it. See RCFC
12(b)(1). Plaintiff must prove that the court has subject-matter jurisdiction by a preponderance
of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Pleadings of pro se plaintiffs are held to a less stringent standard, but they still must establish that the
court has jurisdiction. See Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir.
1987). When ruling on the government’s motion to dismiss for lack of jurisdiction, the court must
“accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” See Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a court
lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); RCFC 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
The plaintiff must also state a claim upon which the court can grant relief. See RCFC
12(b)(6). Plaintiff must allege facts that are “enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When ruling on a motion to dismiss
for failure to state a claim, the court must accept undisputed facts as true and “construe them in a
light most favorable to the plaintiff.” Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir.
2009). However, the court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “[T]he court shall dismiss [a] case at any time if the court
determines that . . . the action . . . is frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
2. Plaintiff’s complaint is dismissed under 12(b)(1) and 12(b)(6)
Mr. Phillips does not state a claim over which the court has subject-matter jurisdiction
and does not state a claim upon which the court can grant relief. The Tucker Act provides this
court with jurisdiction over “any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive department, or upon any
express or implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act does not, however, provide
substantive rights. See United States v. Testan, 424 U.S. 392, 398 (1976). To establish this
court’s jurisdiction, Mr. Phillips must “identify a substantive right for money damages against
the United States separate from the Tucker Act itself.” Todd v. United States, 386 F.3d 1091,
1094 (Fed. Cir. 2004).
3
Mr. Phillips alleges wrongdoing by private entities and individuals, not the United States.
He challenges actions by a mortgage servicer (Mr. Cooper) and a default services company and
trustee (Affinia Default Services, LLC) and their employees, not the government. See Compl. ¶¶
2-6, 55; Compl. Ex. 1, at 2. 1 Although Mr. Phillips references the Constitution’s Fifth
Amendment, 2 “plaintiff must establish more than the mere existence of a statute or constitutional
provision to bring himself within the jurisdiction of this court.” Russell v. United States, 78 Fed.
Cl. 281, 285 (2007); See Compl. ¶ 18. In addition, Mr. Phillips alleges a violation of 15 U.S.C. §
1692, which is part of the Fair Debt Collection Practices Act and prevents harassing or abusive
practices. However, an action under 15 U.S.C. § 1692 for alleged violations by debt collectors
would be against the debt collector, not the United States government. Therefore, plaintiff has
not alleged a claim against the United States government for money damages and therefore his
complaint must be dismissed.
CONCLUSION
For the reasons stated, plaintiff’s motion for reconsideration, plaintiff’s motion to show
authority, and both of plaintiff’s motions to strike are DENIED. 3 Defendant’s motion to stay is
DENIED as moot.
In addition, for the reasons stated, the government’s motion to dismiss pursuant to RCFC
41(b), 12(b)(1), and 12(b)(6) is GRANTED.
The Clerk shall dismiss plaintiff’s complaint for failure to state a viable claim. The Clerk
is directed to enter judgment in accord with this disposition.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
1
Mr. Phillips did not have a contract, express or implied, with the government. See
generally Compl. In addition, although Mr. Phillips states that defendants “are attempting to use
a [United States Department of Housing and Urban Development (“HUD”)] process against a
private man and his private property,” See Compl. ¶ 40, and although the notice of default from
Affinia Default Services, LLC states that Mr. Phillips could seek help from HUD, Compl. Ex. 1,
at 1-2, his claims are against private entities and individuals; he has not alleged a claim against
the United States.
2
The court does not have jurisdiction over claims under the Fifth Amendment’s and
Fourteenth Amendment’s due process and equal protection clauses. LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed Cir. 1995).
3
Plaintiff’s motion to show authority is denied. The attorney for the United States has
authority to represent the government in this matter. See 28 U.S.C. § 516.
4