Cordova v. United States , 123 Fed. Cl. 685 ( 2015 )

ORIGI M
Sin the 6311111211 étates (Euurt of fatal (51313115
No. 14-11220
Filed: October 8, 2015
OCT - 8‘2015
******************* UIS‘COURTOF
ROBERT A. CORDOVA, as * FEDERAL CLA'MS
32:22:33123: °" : Ln
’ * Pauperis Application; Motion to
Plaintiff, * Dismiss; Lack of Subject-Matter
* Jurisdiction; Statute of
V- * Limitations
UNITED STATES, *
Defendant. :
******************
Robert A. Cordova, San Antonio, TX, m E.
James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for the defendant. With him were
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, Washington, DC.
OPINION
HORNI J.
FINDINGS OF FACT
m g plaintiff Robert A. Cordova alleges that he is filing a complaint, followed by
an amended complaint, on behalf of the estates of General John Sevier and his son, John
Sevier, Jr.,1 of which, plaintiff asserts, he is “the duly appointed and qualified administratix,
de bonis non.”2 Mr. Cordova initially attempted to file his complaint in the United States
Court of Federal Claims on November 18, 2014, along with an Application to Proceed |_n
1 Although plaintiff purports in the body of his complaint that he brings his claims on behalf
of the estate of General Sevier and John Sevier, Jr., the captions of both his initial and
amended complaints list only the estate of General Sevier.
2 Capitalization, grammar, spelling, punctuation, and other errors are quoted in this Order
as they appear in plaintiff’s submissions.
Forma Pauperis. This complaint was returned to Mr. Cordova because he had failed to
sign the pleading in accordance with Rule 11 of the Rules of the United States Court of
Federal Claims (RCFC) (2015). Plaintiff subsequently amended and refiled his complaint.
Plaintiff’s amended complaint asserts that “[t]his case is brought on the basis that the US.
has not paid its debt owed to General Sevier, a debt which is valid, legitimized, and
verified.” Plaintiff alleges four separate claims against the United States, for which he
seeks a total of $8,447,594.00, plus interest in compensation.
The claims are briefly summarized as follows. Plaintiffs first claim alleges that in
1783, pursuant to an act of the legislature of North Carolina, “the claimants’ descendants
[sic] purchased 225, more or less, land warrants representing 174,474 acres of land, more
or less." Plaintiff further alleges that some of this land was subsequently “ceded” by the
United States to the Cherokee Tribe pursuant to the 1785 Treaty of Hopewell. According
to plaintiff’s complaint, in February 1790, the State of North Carolina ceded a portion of
its western territory, including some of the land held by General Sevier, to the United
States, but on the condition that pre-existing property rights in the territory “have the same
force and effect as if such cession had not been made.” Plaintiff claims that, nonetheless,
the United States, pursuant to the 1791 Treaty of Holson, ceded some of the lands owned
by General Sevier and John Sevier, Jr. to the Cherokee Nation. Plaintiff also alleges that
in a Bill, dated May 19, 1796, Congress established punishments for residents of what
had by then become the new state of Tennessee “for doing any act of ownership of lands
represented in this claim [that] were within the Indian boundary.” Plaintiff claims that North
Carolina protested this treaty as “a violation of private rights,” and that Congress, in an
Act passed April 18, 1806, recognized that the pre-existing property rights of the Sevier
lands had not been satisfied. Plaintiff claims that General Sevier and John Sevier, Jr.
were never compensated for the expropriation of this land, and seeks total compensation
for the first of his claims in the amount of “$8,330,550 with accrued interest thereon at six
percent (6%) per annum from August 4, 1790, UNTIL PAID." (capitalization in original).
Plaintiff’s second claim relates to a total of approximately 51 ,000 acres of land in
in the “Mississippi Valley,” 50,000 of which plaintiff claims General Sevier obtained in
three transactions in 1797, and 1,000 of which were purchased in 1795 by his son James
Sevier.3 Plaintiff alleges that an April 7, 1798 Act of Congress authorized the
establishment of the Mississippi Territory, which, plaintiff claims, included the 51,000
acres purchased by his alleged ancestors. This Act, according to plaintiff, promised that
the founding of the Mississippi Territory "should in no respect impair the right of the State
of Georgia, or of any other persons to the jurisdiction of the soil of said territory,” and that
“the right and claims of . . . all persons interested are thereby declared to be as firm as if
the Act had never been made." On April 24, 1802, according to plaintiff, the State of
Georgia ceded certain lands, including the 51 ,000 acres on which plaintiff’s second claim
is based, to the United States for the formation of the Mississippi territory, with a proviso
that the United States may set aside 5,000,000 acres of land in order to compensate all
claims by dispossessed owners on that ceded land. Further, according to plaintiff’s
complaint, a March 1803 Act of Congress set aside the 5,000,000 acres, and established
3 Other than being father and sons, plaintiff does not explain the relationship between
General Sevier, John Sevier, Jr., James Sevier, and George W. Sevier, discussed below.
2
Every claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years
after such claim first accrues. . . . A petition on the claim of a person under
legal disability or beyond the seas at the time the claim accrues may be filed
within three years after the disability ceases.
ld_. "The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federal Claims.” John R. Sanflt Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.), fig Q m denied (Fed. Cir. 2006),
m, 552 US. 130 (2008); Banks v. United States, 102 Fed. Cl. 115, 127 (2011) (citing
U.S.C. § 2501). The United States Court of Appeals for the Federal Circuit has indicated
that a claim accrues “‘“when all events have occurred to fix the Government’s alleged
liability, entitling the claimant to demand payment and sue here for his money.”’” fl
Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358—59 (Fed. Cir.) (quoting
Samish Indian Nation v. United States,'419 F.3d 1355, 1369 (Fed. Cir. 2005) (quoting
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003), ELL. denied, 540 US.
1177 (2004))), fig g b_ar§ denied (Fed. Cir. 2011); g alfl FloorPro, Inc. v. United
States, 680 F.3d 1377, 1381 (Fed. Cir. 2012); Martinez v. United States, 333 F.3d at
1303) (“A cause of action cognizable in a Tucker Act suit accrues as soon as all events
have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events
have occurred to fix the Government’s alleged liability, entitling the claimant to demand
payment and sue here for his money.”’ (quoting Nager Elec. Co. v. United States, 177 Ct.
CI. 234, 240, 368 F.2d 847, 851 (1966), motion denied, 184 Ct. CI. 390, 396 F.2d 977(1968)); Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.
1988); g E Brizuela v. United States, 103 Fed. CI. 635, 639, affJ, 492 F. App’x 97
(Fed. Cir. 2012), c_e$ denied 133 S. Ct. 1645 (2013). A Judge of the United States Court
of Federal Claims has noted that:
It is well-established that a claim accrues under section 2501 “when ‘all
events have occurred to fix the Government’s alleged liability, entitling the
claimant to demand payment and sue here for his money.”’ Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc), in. denied,
540 US. 1177 (2004) (quoting Nager Elec. Co. v. United States, 368 F.2d
847, 851 (Ct. Cl. 1966)); segESamish _j|ndian Nation v. United Statesl,
419 F.3d [1355,] 1369 [(2005)]. Because, as noted, this requirement is
jurisdictional, plaintiff bears the burden of demonstrating that its claims were
timely. flAlder Terrace Inc. v. United States, 161 F.3d 1372, 1377 (Fed.
Cir. 1998); Entines v. United States, 39 Fed. CI. 673, 678 (1997), aff'd, 185
F.3d 881 (Fed. Cir.), in. denied, 526 US. 1117 (1999); fifig John R.
Sand & Gravel Co. v. United States, 457 F.3d 1345, 1362 (Fed. Cir. 2006)
(Newman, J., dissenting); Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988).
Parkwood Agsocs. Ltd. P'ship v. United States, 97 Fed. CI. 809, 813-14 (2011), aff’d, 465
F. App’x 952 (Fed. Cir. 2012); sfi alfi Klamath Tribe Claims Comm. v. United States,
97 Fed. Cl. at 209 (201 1) (citing Alder Terrace Inc. v. United States, 161 F.3d 1372, 1377
(Fed. Cir. 1998)). Accrual of a claim is mdetermined under an objective standard’” and
11
plaintiff does not have to possess actual knowledge of all the relevant facts in order for a
cause of action to accrue. FIoorPro Inc. v. United States, 680 F.3d at 1381 (quoting Fallini
v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied, 517 US. 1243
(1996)).
Like other claims brought under the Tucker Act, takings claims typically accrue
“‘only when all the events which fix the government’s alleged liability have occurred and
the plaintiff was or should have been aware of their existence!” Casitas Mun. Water Dist...
v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (emphasis in original) (quoting
'Hopland Band of Porno Indians v. United States, 855 F.2d at 1577); E also Navaio
Nation v. United States, 631 F.3d 1368, 1273—74 (Fed. Cir. 2011) (“In general, a takings
‘claim first accrues when all the events have occurred which fix the alleged liability of the
[government] and entitle the plaintiff to institute an action.” (quoting Hopland Band of
Pomo Indians v. United States, 855 F.2d at 1577 (citing Fallini v. United States, 56 F.3d
at 1380); John R. Sand & Gravel Co. v. United States, 457 F.3d at 1355-56. “‘Therefore,
a claim under the Fifth Amendment accrues when [the] taking action occurs.” Navaio
Nation v. United States, 631 F.3d at 1273-74 (brackets in original) (quoting Goodrich v.
United States, 434 F.3d 1329, 1333 (Fed. Cir.), fig denied (Fed. Cir. 2006) (citations
and internal quotation marks omitted)). For a physical taking, the act that causes the
taking also causes the accrual of a takings claim. @Casitas Mun. Water Dist. v. United
States, 708 F.3d at 1359 (citing Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir.)
(“[A] claim alleging a Fifth Amendment taking accrues when the act that constitutes the
taking occurs.”), in. denied, 558 US. 878 (2009)).
Defendant moves to dismiss plaintiff’s amended complaint pursuant to RCFC
12(b)(1) for lack ofjurisdiction and, in the alternative, RCFC 12(b)(6) for failure to state a
claim for which relief may be granted. Defendant argues that plaintiffs first claim accrued
no later than 1806, when Congress allegedly passed a statute acknowledging pre—existing
property rights in the newly-created State of Tennessee, including, by implication, the
property rights of General Sevier at issue in plaintiff’s first claim. Defendant contends that
plaintiff’s second claim accrued no later than 1814, when Congress allegedly passed an
Act providing for the indemnification of property owners in the Mississippi Territory
dispossessed by the cession of land by the State of Georgia to the United States.
Defendant argues that plaintiff’s third claim accrued no later than 1824, when Congress
allegedly passed an Act confirming the Georgia legislature’s 1786 grant of 5,000 acres to
General Sevier, with the proviso that the claim be satisfied from a trust established in
1803. Defendant argues plaintiffs fourth claim accrued no Iaterthan 1793 because plaintiff
alleges General Sevier “was owed military pay in the amount of $22,817 for services
provided in 1793.” Finally, defendant construes the reference in plaintiff’s appendix to an
1841 bill, under which claims for compensation allegedly could have been brought by the
heirs of General Sevier or John Sevier, Jr., as a fifth claim, which, defendant asserts,
accrued no later than 1841. Citing 28 U.S.C. § 2501, defendant argues that “Congress
has required persons seeking to recover under the Tucker Act to file suit in this Court
within six years of the date when the claim accrued,” and that because none of plaintiff’s
claims accrued later than 1841, they are untimely and must be dismissed for lack of
jurisdiction. Further, according to defendant, even if plaintiff’s complaint were not
dismissed for its jurisdictional defects, it must be dismissed under RCFC 12(b)(6) for
12
failure to state a claim for which relief may be granted, because plaintiff‘s complaint
“contains no allegations to support a finding that the estate of General Sevier has
remained open for the 200 years since General Sevier’s death” and it “also contains no
allegations to support a finding that Mr. Cordova has been properly appointed the
administrator of such an estate.”
Plaintiff’s Response to Defendant’s Motion to Dismiss asserts, although without
support, that “28 U.S.C. 2501 does not apply in this matter as the US. Congress has
referred the matter and that a ruling was made adversely against the Defendant. It is
contended that the case was appropriated for payment, yet merely indefinitely postponed
by this Court.” Therefore, plaintiff argues, he “has already met the provisions of the Tucker
Act and previously of the Bowman Act of 1883.” Plaintiff further asserts that “[t]he United
States Congress, on several occasions over that last 200 years, has made appropriations
for payment to the Sevier Estate,” including, plaintiff alleges, the Deficiency Appropriation
Act of 1964, ch. XI, 78 Stat. 204, which, he claims, “did not recognize the amounts or
terms of the individual settlements and judgments funded but rather made a bulk
appropriation,” in the amount of $12,831 ,443.00, “‘[f]or payment of claims as settled and
determined by departments and agencies in accord with law, and judgments rendered
against the United States by the United States Court of Claims and United States district
courts . . . There is no indication in the record, however, that any appropriation
regarding the Sevier claims was ever passed by Congress following the Congressional
Reference Report by the Court of Claims, and plaintiff has provided none.
With respect to defendant’s allegation that Mr. Cordova has failed to establish that
the estates of General Sevier and John Sevier, Jr. remain open, or that he is the duly-
appointed administrator thereof, plaintiff asserts that “Mr. Cordova, a direct descendant
of Gen. Sevier, made application [to] the Sevier County Court in Tennessee in 2012 to
become the Estate’s Administrator, which Mr. Cordova can document.” The court notes,
however, that plaintiff has not provided the referenced documentation, nor did he provide
any information regarding the status of his 2012 application, including whether or not the
application ever was acted upon. Plaintiff further states in his conclusion that “the
Complainant believes that it has proven and can submit additional evidence that this court
has jurisdiction,” but that “the Complainant has requested additional documents pertinent
to this case from agencies of the Defendant, which have not yet been received." Since
the filing of the plaintiff’s complaint in this court, however, plaintiff has had ample time to
produce additional documents and has not done so.
In its reply brief, defendant asserts that “[i]n his response, Mr. Cordova does not
challenge (or mention) the accrual date for any of these five claims” identified in
defendant’s motion to dismiss, which, defendant alleges, means that “our calculations of
the accrual dates are uncontested.” Defendant alleges that plaintiff’s reliance on the
findings of fact issued by the United States Court of Claims in 1910 “lends no support to
Mr. Cordova’s arguments forjurisdiction to consider the claims in the complaint” because,
although defendant concedes that “Congress created special jurisdiction for the Court of
Claims” to consider the claims of General Sevier’s heirs, “by the express terms of that
grant ofjurisdiction . . .jurisdiction expired with the issuance of the Court of Claims report
in 1910, and the elapsed time permitted for appeal.” As for plaintiff’s assertion that he
13
applied in 2012 to be appointed as the administrator of General Sevier’s estate, defendant
argues that “this does not prove that General John Sevier’s estate was established there,
or that such estate has remained open for 200 years, or that Mr. Cordova has been
appointed as the Estate Administrator of such an open estate.” (emphasis in original).
With respect to plaintiff’s apparent claim that the Court of Claims issued a judgment in
favor of the heirs of General Sevier’s estate in 1910, defendant retorts that, “[w]ith all due
respect, Mr. Cordova misunderstands the report issued by the Court of Claims in 1910.”
Defendant concludes after discussing the 1910 fact-finding report, “the Court of Claims
did not award, or recommend the award, of any money to the heirs of General Sevier or
his son,” meaning “[t]here is no judgment for Mr. Cordova to seek to enforce."
Plaintiff’s argument that the statute of limitations contained in 28 U.S.C. § 2501
does not apply to the present case because it was referred to the court by Congress and
then “indefinitely postponed” also is incorrect. “Any bill, except a bill for a pension, may
be referred by either House of Congress to the chief judge of the United States Court of
Federal Claims for a report in conformity with [28 U.S.C. §] 2509.” 28 U.S.C. § 1492
(2012). After a bill is referred, the Court of Federal Claims makes findings of fact regarding
the referred bill along with “conclusions sufficient to inform Congress whether the demand
is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due
from the United States to the claimant.” 28 U.S.C. § 2509(c) (2012). These findings and
conclusions are then submitted in a report to the appropriate House of Congress. |d_. §
2509(e). Essentially the same process was followed by the Court of Claims in 1910. SE
Tucker Act of 1887, ch. 359, § 13-14, 24 Stat. 505, 507—08 (1887). None of the
conclusions drawn in such reports are subject to judicial review. E id_. § 2509(b).
“Inasmuch as the conclusions are recommendations, as distinguished from judicial
decisions, the court-made rules of stare decisis and res judicata do not apply.
Congressional reference cases have no binding value as precedent.” Paul v. Uniteg
States, 20 Cl. Ct. 236, 266, m, 21 Cl. Ct. 758 (1990). As noted above, the Humphreys
claims were twice referred to the Court of Claims, first in 1905 and then in 1908. S. Rep.
68-991 at 1-2 (quoting H.R. 18921, 58th Cong. (1905); HR. 17355, 60th Cong. (1908)).
After the Court of Claims made its findings in Humphreys and submitted them to the
House of Representatives in 1913, E H.R. Doc. No. 63-131 at 1, the role of the Court
of Claims was complete and the court’s jurisdiction to hearthe Humphreys claims referred
by Congress expired. The court’s findings were only recommendations, and the ultimate
decision of Congress about whether to award the Humphreys plaintiff compensation
rested with Congress alone. Congress’ decision in 1925 not to do so did not toll the
running of the statute of limitations for the claims involved. Moreover, as noted above,
there is no evidence in the record that Congress ever appropriated any money directed
to compensate for plaintiff’s claims.
For plaintiff’s claims to be timely, pursuant to 28 U.S.C. § 2501, each claim must
have accrued no earlier than November 18, 2008, or six years prior to November 18,
2014, the date on which Mr. Cordova filed his initial complaint in this court. As defendant
argues, each of Mr. Cordova’s four claims accrued considerably earlier than that date.
Plaintiff’s first claim involves lands allegedly belonging to General Sevier and John Sevier,
Jr. in Tennessee that were allegedly “ceded” by the federal government to the Cherokee
Nation in 1785 and/or 1791. Construed liberally, plaintiff alleges a physical taking of
14
General Sevier and John Sevier Jr.’s lands by the United States. The statute of limitations,
therefore, began running the moment the land was taken, that is in 1791, at the latest.
5% Navaio Nation v. United States, 631 F.3d at 1273-74 (“‘[A] claim under the Fifth
Amendment accrues when [the] taking action occurs.” (brackets in original) (quoting
Goodrich v. United States, 434 F.3d at 1333). Plaintiff’s first takings claim, thus, is
untimely by at least 217 years. The 1925 Senate Report included in the appendix to
plaintiffs complaint also alleged that several federal statutes, the last of which was
enacted in 1841, provided General Sevier’s heirs the opportunity to receive compensation
for the lands allegedly taken from General Sevier and John Sevier, Jr. E S. Report 68-
991, at 2-3. These are the statutes defendant construed as constituting a fifth claim by
defendant. There is, however, no indication in plaintiff’s pleadings or the exhibits in the
record before the court that the claims of General Sevier and his heirs would not have
accrued immediately after the enactment of such statutes. Any claims plaintiff might have
had under such statutes are, therefore, untimely by at least 167 years.
Plaintiff’s second claim alleges that two federal statutes, passed in 1803 and 1814,
were intended to compensate landowners, such as General Sevier and James Sevier,
whose land had been ceded by the State of Georgia to the United States in order to
establish the Mississippi Territory. The 1803 statute allegedly established a procedure by
which claims for compensation could be made, while the 1814 statute allegedly provided
for “indemnification of certain claimants of public lands in the Mississippi Territory." The
statute of limitations for claims based on such money-mandating statutes, however,
begins running “‘when “all events have occurred to fix the Government’s alleged liability,
entitling the claimant to demand payment and sue here for [its] money.””’ Klamath Tribe
Claims Comm. v. United States, 97 Fed. Cl. at 209 (brackets in original) (quoting Martinez
v. United States, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d at
851)). In the above-captioned case, plaintiff has not pled any facts showing why General
Sevier would not have been entitled to seek compensation or indemnification pursuant to
the 1803 and 1814 statutes, even if eligible, suggesting that the statute of limitations
began to run when these acts were passed. As such, plaintiff’s claims under the two
statutes would be untimely by 205 and 194 years, respectively.
Plaintiff’s third claim involves lands that were allegedly granted to the heirs of
General Sevier by Congress in 1824. Plaintiff alleges that “about 20 patents” apparently
covering this land were recorded in 1828, but that they were occupied by Native
Americans and that United States citizens were prevented from going on the lands by the
United States Army. Plaintiff also alleges that “there is no record in the Land Office at
Washington, DC, Huntsville, Alabama, or Jackson, Mississippi to show that any patents
were delivered to any of the heirs of General John Sevier or to his administrators.” The
legal basis for plaintiff’s third claim is unclear. When construed liberally, however, plaintiff
appears to allege that the lands given to General Sevier in 1824 were subsequently taken
by the United States and given to the certain Native Americans beginning at least in 1828.
Again, because plaintiff’s claim involves a taking, the statute of limitations began to run
when the taking occurred in 1828. Plaintiff’s third claim is, therefore, untimely by
approximately 180 years.
15
Plaintiffs fourth claim involves the alleged payments owed General Sevier for his
military service: “the salary of General John Sevier of $94 per month from February 22,
1791 to February 22, 1794, and the sum due him for raising levies for the Northwestern
campaign." Plaintiff does not cite to the appropriate money-mandating regulation, statute,
or constitutional provision that would have entitled General Sevier or any of his heirs to
such payments. Nonetheless, plaintiff’s claims would have accrued, at the latest, when
General Sevier’s military service ended in 1794. Therefore, plaintiff’s fourth claim is
untimely by at least 214 years. Given that each of plaintiff’s four claims began to accrue
hundreds of years ago, they all must be dismissed for lack of jurisdiction pursuant to
RCFC 12(b)(1). The court, therefore, does not need to reach defendant’s RCFC 12(b)(6)
arguments, or address why plaintiff has the legal right to bring claims on behalf of General
Sevier, his sons, or their estates, of which there is no evidence in the record.
Along with his original complaint, Mr. Cordova submitted an Application to Proceed
|_n Forma Pauperis, asserting that he is unable to pay the required filing fees, and
requesting waiver of court costs and fees. In his application, plaintiff states that he is
presently unemployed, and that his only source of income in the last twelve months has
been “VA DISABILITY,” but he did not specify the amount received from this source,
despite the form’s instruction to “describe each source of money and state the amount
received from each during the past twelve months.” (capitalization in original). Plaintiff
further states that he does not own any cash, and has no money in checking, savings, or
any other accounts. Plaintiff responded “Yes” in response to the query “Do you own any
real estate, stocks, bonds, notes, automobiles or other valuable property (excluding
ordinary household furnishings and clothing)?” and estimated the value of his property in
San Antonio, Texas as $40,000.00. Finally, plaintiff indicates that he has no dependents
and is not currently a prisoner.
In order to provide access to this court to those who cannot pay the filing fees
mandated by RCFC 77.1(c) (2015), the statute at 28 U.S.C. § 1915 (2012) permits a court
to allow plaintiffs to file a complaint without payment of fees or security under certain
circumstances.7 The standard in 28 U.S.C. § 1915(a)(1) for i_n forma pauperis eligibility is
7 A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding i_n
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 i_n forma pauperis in federal court. %, gg_., Floyd v. United States Postal Serv.,
105 F.3d 274, 275-76 (6th Cir.), Qh’g denied (6th Cir. 1997); Schagene v. United States,
37 Fed. Cl. 661, 663 (1997) (finding that it was not the intent of Congress to eliminate the
i_n forma pauperis right of access to federal courts of eligible, indigent, non-prisoners),
appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998); E alsg In re Prison Litigation Reform
&, 105 F.3d 1131, 1134 (6th Cir. 1997) (discussing how to administerifl 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 (MB. 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
16
“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. E, 19;, Rowland v. Cal. Men’s
Colony, Unit II Men’s Advisom Council, 506 US. 194, 217—18 (1993); Fuentes v. United
States, 100 Fed. Cl. 85, 92 (2011). In Fiebelkorn v. United States, the United States Court
of Federal Claims indicated:
[T]he threshold for a motion to proceed i_n 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); g E Hayes v. United States,
71 Fed. CI. 366, 369 (2006). Although Mr. Cordova’s self-reported income and holdings
might qualify him for in forma pauperis relief, his complaint is being dismissed for lack of
jurisdiction for the reasons discussed above.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for lack of subject matter
jurisdiction is hereby GRANTED. Plaintiff’s complaint is DISMISSED. The allegations in
this claim, have been repeatedly reasserted by different individuals in General Sevier’s
lineage. The claims were resolved by the 1910 Congressional Reference Report and the
Senate Report based on the same facts. Even if Mr. Cordova could demonstrate a legal
right to act on behalf of the Sevier estates, the issues raised by plaintiff’s complaint should
not be revisited again in this court. The Clerk of the Court shall enter JUDGMENT
consistent with this Order dismissing plaintiff’s complaint.
é hfltfl
MARIAN BLANK HoRN
Judge
IT IS SO ORDERED.
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.
17
a procedure by which claims for compensation could be made. Although plaintiff asserts,
with respect to General Sevier’s property, “that the title and right to his purchased lands
were clearly proven,” plaintiff’s complaint does not allege that General Sevier or his sons
ever made a claim pursuant to the 1803 Act. Plaintiff claims, however, that General Sevier
and James Sevier did timely deposit deeds of release related to this property with the
Secretary of State on December 31, 1814, pursuant to the procedure described in a
March 31, 1814 Act, which, plaintiff alleges, provided for “the indemnification of certain
claimants of public lands in the Mississippi Territory.” Plaintiffs complaint further states
that an 1819 treaty between the United States and Cherokee Indians set aside “a 12
square mile area in the Big Bend of the Tennessee River for the education of said
Indians,” which allegedly included the 51,000 acres on which plaintiff’s second claim is
based. Plaintiff, alleges that neither General Sevier nor James Sevier ever were
compensated for the dispossession of these lands and seeks compensation in the
amount of “$102,000 with accrued interest at six percent (6%) per annum, compounded
interest from March 3, 1803, UNTlL PAID.” (capitalization in original).
Plaintiff’s third claim relates to a grant of 5,000 acres allegedly awarded to General
Sevier as compensation for his service as a commissioner appointed “to examine the
quantity, quality, etc. of the lands lying in what was called the ‘Bend of the Tennessee[.]”’
Plaintiff claims General Sevier was appointed to this position pursuant to a February 20,
1784 Act of the Legislature of Georgia, and “that on August 14, 1786, the General
Assembly of Georgia adopted a resolution allowing each of the commissioners who
served 5,000 acres of land in Tennessee as a gratuity and full compensation for their
‘trouble[.]”’ According to plaintiff’s complaint, General Sevier never received the deed for
these 5,000 acres, and the parcel was ultimately ceded by Georgia to the United States
in the same 1803 Act referenced above with respect to Mr. Cordova’s second claim.
Plaintiff claims that, on December 5, 1817, General Sevier’s son and the administrator of
his estate, George W. Sevier, petitioned Congress to fulfill the promise of 5,000 acres to
General Sevier by granting the land to his heirs. According to plaintiff’s complaint,
Congress responded by granting 5,000 acres to the heirs of General Sevier in an Act
passed on May 24, 1824, specifying that this grant should come from the 5,000,000 acres
set aside for the compensation of claims in the 1803 Act discussed above with respect to
plaintiff’s second claim. Plaintiff claims that pursuant to this 1824 Act, “[o]n May 12,
1828 . . . about 20 patents were recorded in the Land Office at Washington, DC,” but
that
native Americans occupied the lands named in said patents . . . and an army
of the United States was stationed at that locality to prevent citizens of the
United States from going on said lands, which condition prevailed for many
years after the death of all the children of General John Sevier . . . .
Plaintiff claims there is no record showing that the patents for this 5,000 acres of land
were ever conveyed to General Sevier’s heirs. Plaintiff seeks total compensation for this
claim in the amount of “$10,000 with six percent (6%) annum compound interest from
March 3, 1803, UNTIL PAID.” (capitalization in original).
Plaintiff’s fourth claim concerns military pay that plaintiff claims General Sevier was
owed for his service to the United States in the “Ettowa Campaign” from February 22,
1791 to February 22, 1794. Plaintiff claims General Sevier was appointed a Brigadier
General in the United States Army for the purposes of conducting a campaign against
certain unspecified Indian tribes, and asserts that General Sevier subsequently made
“several attempts” to obtain the pay owed to him and the troops he levied for that
campaign. Plaintiff claims, with respect to the monies owed to General Sevier for his
military service, he is due “a total of $5,044.00.”4 In total, plaintiff claims as compensation
for his four claims “the sum of $8,447,594 with accrued interest at six percent (6%) per
annum compound interest from the dates hereinbefore stated respectively, UNTIL
PAID.”5 (capitalization in original).
The allegations contained in Mr. Cordova's complaint appear to be taken, almost
verbatim and without attribution, from the descriptions of the claims in the 1910 United
States Court of Claims Congressional Reference case of Emmetts Humphreys,
“admin'éstmtrtx ale. banis- no'n Qf'dfifi'fi Sawfly. $nt Sesisfjr. v, united.” a as. S_e§
H.R. Doc. No. 63-131 (1913) (which quotes the Court of Claims’ Humphreys decision in
full). As plaintiff notes in his complaint, apparently quoting from Humphreys, the claims in
Humphreys were twice referred by the United States Congress to the United States Court
of Claims, a predecessor court of this court, the United States Court of Federal Claims,
for fact-finding pursuant to the Bowman Act, 22 Stat. 485 (1883). The first referral
occurred on or about February 23, 1905 and the second on February 24, 1908. E H.R.
Doc. No. 63-131, at 1-2. Like Mr. Cordova, the Humphreys plaintiff, Ms. Emmets
Humphreys, claimed that she was “one of the heirs of. . . Gen. John Sevier” and the “duly
appointed and qualified administratrix de bonis non of the estates of Gen. John Sevier
and of John Sevier, jr.” Q at 2. Ms. Humphreys alleged the same four claims as Mr.
Cordova does in the case currently before this court, including that General Sevier and
his heirs allegedly owned the identified lands and that the failure of the United States to
pay General Sevier the amount due for his services in the Ettowa Campaign is a
continuing debt. & id_. at 2-5. Ms. Humphreys also sought the same monetary relief as
Mr. Cordova does: “the sum of $8,447,594 with accrued interest at 6 per cent per annum,
compound interest, from the dates hereinbefore stated, respectively, until paid.” g at 5.
The Court of Claims decided the Congressional Reference case on February 28, 1910
and its findings of fact were transmitted to the House of Representatives on January 23,
1913. SQ ii at 1, 21. In its findings of fact, the Humphreys court determined that it did
not appear that the United States had received any benefit from the lands belonging to
4 The court notes that although this section of plaintiff’s complaint makes passing
reference to “a balance of $22,817, a sum of which has not been paid” with respect to
General Sevier’s services on the “Ettowa Campaign of 1793,” plaintiff provides no
indication of what this sum represents, nor does he appear to be seeking reimbursement
for this sum from the United States.
5 Plaintiff notes that “[t]his number in [sic] not reflective of the calculation from 1910 until
present, which will be demonstrated within this document.” No such documentation,
however, appears to have been provided to this court.
General Sevier. E id_. at 8, 13, 14. Mr. Cordova, apparently contesting this conclusion
before this court, states, without elaboration, that “[i]t is the contention of the heirs of
General John Sevier that the United States in fact benefited from lands in the creation,
formation and cession of the States of Tennessee, Georgia, Mississippi and Alabama, all
from the lands acquired from what should have been a part of the estate of General John
Sevier.” Mr. Cordova also asserts that, “by provisions of the Tucker Act granting
jurisdiction of this case to the United States Court of Federal Claims,” his claim “shall
supersede” the Humphreys claim and that “all records and exhibits filed therein should be
transferred to and considered in connection therewith.”
In February 1925, the Senate Committee on Claims issued a report stating that it
had been referred a Bill “making appropriation for payment of claims of John Sevier, sr.,
and John Sevier, jr., in accordance with report and findings in the Court of Claims."
S. Rep. No. 68-991, at 1 (1925). Although not mentioned in plaintiff’s initial and amended
complaints, the 1925 Senate Report was identified and quoted in full in an undated
“Reference Service Report” issued by the General Services Administration, which also
provided an overview of the various Sevier claims. Plaintiff attached the GSA Report to
his original complaint filed in this court.6 The Senate Report discussed each of the four
claims discussed in Humphreys, which, as noted above, are identical to those in Mr.
Cordova’s complaints, and recommended that the appropriation Bill be “unfavorany
reported and indefinitely postponed.” g at 5.
With respect to the first claim in plaintiff’s complaint, the Senate Report notes that
there were “several acts of Congress, passed subsequent to 1800, whereby Gen. John
Sevier or John Sevier, jr., were given every opportunity to establish their claims for said
land and to obtain compensation as the terms of said Federal acts provided.” |d_. at 2. In
particular, the Senate Report noted the last of these Acts, 5 Stat. 412 (1841), had been
enacted on February 18, 1841. S. Rep. No. 68-991, at 3. Because no claim appeared to
have been filed under the 1841 Act by the heirs of General Sevier and John Sevier, Jr.,
nor in the sixty-plus years prior to the claim made by Ms. Humphreys, the Senate Report
concluded that “[t]he claim, even if a proper one, seems to have been completely
abandoned by all possible parties in interest," which meant that “it does not appear to be
equitable orjust that at this late date the Federal Government should be called upon to
pay out any money upon such a claim,” particularly since “the Federal Government never
received any benefit while it did hold the ownership to said lands.” |d_.
With respect to the second claim, the Senate Report stated:
In brief, it appears that in substance opportunity was given by legislative
procedure and othen/vise, both Federal and by an act passed by the State
of Georgia, whereby Gen. John Sevier and John Sevier, jr., or their heirs or
legal representatives, could prove and substantiate their claim and receive
compensation therefor, but that neither Gen. John Sevier or John Sevier,
6 The 1925 Senate Report also was attached to defendant’s Reply to Plaintiff’s Amended
Response to Defendant’s Motion to Dismiss.
jr., nor their heirs or legal representatives saw fit so to do, and in this case
a period of time seems to have lapsed between 1822 and 1907, a period of
over 80 years, during which Gen. John Sevier, John Sevier, jr., their heirs
or legal representatives, have abandoned all claim.
ld_. Given the apparent abandonment of this claim, the report concluded that “[y]our
committee is unable to find any just or equitable reason for any compensation to be
awarded the claimant under this head.” ch at 4.
As for the third claim, the Senate Report cited the Court of Claims’ findings of fact
as follows:
[L]ocations were made by the heirs of John Sevier, through their duly
authorized attorney, for the number of acres due John Sevier under said act
of May 24, 1824, and that patents were duly issued to the heirs and legal
representatives of the said John Sevier between June 12, 1828, and
February 26, 1834.
It is further shown that the United States did not at any time receive any
benefit from the original lands upon which John Sevier based his claim.
Your committee, therefore, reports that, in its opinion, no just, legal, or
equitable claim can be sustained in favor of either Gen. John Sevier, John
Sevier, jr., or their heirs or legal representatives, under claim No. 3.
Q Regarding the fourth claim concerning General Sevier’s military pay, the Senate
Report stated that “General Sevier himself . . . served in the Twelfth and Thirteenth
Congresses, but the record nowhere discloses the fact that he made application either to
Congress or to the War Department for the payment of this claim of $5,044.” ld_. The
Senate Report concluded that “no attempt was made by the heirs of General Sevier to
obtain compensation therefor between the years 1796 and 1907, a period of over 100
years,” and that therefore “this claim is unjust, inequitable, and should be disallowed.” Q
Also among the documents attached to plaintiff’s original complaint is a letter dated
November 2, 1950 from the Office of the Clerk of the United States Court of Claims,
apparently in response to an inquiry from former United States Representative Paul J.
Kilday, regarding the status of the claims made by the heirs to General Sevier and John
Sevier, Jr. The letter confirms that the House Committee on Private Land Claims referred
these claims to the Court of Claims for findings of fact, that “the Court on February 28,
1910, filed its findings of fact . . . but without recommending any allowance for the
claimant,” and that such findings were certified to Congress and reported on January 23,
1913. The letter also stated that “as far as the court is concerned, the Sevier case has
been a closed matter since its certification to Congress in 1913.”
After plaintiff’s amended complaint was filed, defendant filed a motion to dismiss
pursuant to RCFC 12(b)(1) (2015), or, in the alternative, RCFC 12(b)(6) (2015), for lack
of subject matter jurisdiction and failure to state a claim, respectively. After numerous
delays by the plaintiff, defendant’s motion has been fully briefed.
DISCUSSION
The court recognizes that plaintiff is proceeding m Q. When determining whether
a complaint filed by a m g plaintiff is sufficient to invoke review by a court, m g
plaintiffs are entitled to liberal construction of their pleadings. fl Haines v. Kerner, 404
US. 519, 520—21 (requiring that allegations contained in a Q g complaint be held to
“less stringent standards than formal pleadings drafted by lawyers”), r_eflg denied, 405
US. 948 (1972); fifl—SQ Erickson v. Pardus, 551 US. 89, 94 (2007); Hughes v. Rowe,
449 US. 5, 9—10 (1980); Estelle v. Gamble, 429 US. 97, 106 (1976), fig denied, 429
US. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014);
Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), m, 603 F. App’x 947 (Fed.
Cir.), in. 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’l
Travelers Life Ins. Co..,, 518 F.2d 1167, 1169 (6th Cir. 1975))); fl alfl Bussie v. United
States, 96 Fed. Cl. 89, 94, m, 443 F. App’x 542 (Fed. Cir. 2011); Minehan v. United
States, 75 Fed. Cl. 249, 253 (2007). “While a pg g plaintiff is held to a less stringent
standard than that of a plaintiff represented by an attorney, the m g plaintiff,
nevertheless, bears the burden of establishing the Court’sjurisdiction by a preponderance
of the evidence.” Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v.
Rowe, 449 US. 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 fl
fig g m denied (Fed. Cir. 2002)); g alfl Shelkofsky v. United States, 119 Fed.
Cl. 133, 139 (2014) (“[W]hi|e the court may excuse ambiguities in a pro se plaintiff’s
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)).
Even granting the more liberal construction afforded to a complaint filed by a m
§§ plaintiff, plaintiff has not met his burden of showing that this court has jurisdiction to
hear the claims contained in his complaint. It is well established that “subject-matter
jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or
waived.” Arbaugh v. Y & H Corp., 546 US. 500, 514 (2006) (quoting United 'fi-I'.taies,§,_\l_,,
Cotton, 535 US. 625, 630 (2002)). “[F]ederal courts have an independent obligation to
ensure that they do not exceed the scope of their jurisdiction, and therefore they must
raise and decide jurisdictional questions that the parties either overlook or elect not to
press.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); fifl
Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-
matter jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented”); Hertz Corp. v. Friend, 559 US. 77, 94 (2010)
(“Courts have an independent obligation to determine whether subject-matterjurisdiction
7
exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 US. at
514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court
has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v.
Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)); View Eng’ ._l_ng
v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always
look to their jurisdiction, whether the parties raise the issue or not”). “Objections to a
tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the
tribunal’s subject-matterjurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med.
Q, 133 S. Ct. 817, 824 (2013); fl alflArbaugh v. Y & H Corp., 546 US. at 506 (“The
objection that a federal court lacks subject-matterjurisdiction . . . may be raised by a party,
or by a court on its own initiative, at any stage in the litigation, even after trial and the
entry ofjudgment.”); Cent. Pines Land Co. L.L.C. v. United States, 697 F.3d 1360, 1364
n.1 (Fed. Cir. 2012) (“An objection to a court’s subject matterjurisdiction can be raised by
any party or the court at any stage of litigation, including after trial and the entry of
judgment.” (citing Arbaugh v. Y & H Corp., 546 US. at 506—07)); Rick's Mushroom Serv.
Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge,
or the court may raise sua sponte, subject matterjurisdiction at any time.” (citing Arbaugh
v. Y & H Corp., 546 US. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.),
mm fig Q m denied (Fed. Cir. 2004), in. denied, 545 US. 1127 (2005); and
Farming, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United
States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact,
“[s]ubject matterjurisdiction is an inquiry that this court must raise sua sponte, even where
. neither party has raised this issue.” Me. oite Labs. In . v. Lab. Cor . of Am,
Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods, Inc. v. Mead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), fig denied and en banc suggestion declined (Fed. Cir.),
cert. denied, 525 US. 826 (1998)), reh’g fl reh’g g banc denied (Fed. Cir. 2004), cert.
granted i_n pa_rt su_b. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 US.
975 (2005), cert. dismissed g improvidently granted, 548 US. 124 (2006); see also Avid
l.de_nti_ficatior;_§ys_., Inc. v. cm stal Import Corp._, 603 F.3d 967, 971 (Fed. CirWThis court
must always determine for itself whether it has jurisdiction to hear the case before it, even
when the parties do not raise or contest the issue”), reh’g m reh’g fl banc denied, 614
F.3d 1330 (Fed. Cir. 2010), cert. denied, 5 US. 1169 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, 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) (2015); Fed. R. Civ. P. 8(a)(1), (2) (2015); E fig
Ashcroft v. lgbal, 556 US. 662, 677—78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 US.
544, 555—57, 570 (2007)). “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
US. 1 (1983)), fig denied (Fed. Cir. 1997); fl alfl lamat. Tribe "Liaims Comm. v.
United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United
States, 93 Fed. Cl. 710, 713 (2010). “Conclusory 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); fialfi 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)). “A plaintiff’s factual
allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from
conceivable to plausible.” Three S Consulting v. United States, 104 Fed. Cl. 510, 523
(2012) (quoting Bell Atl. Corp. v. Twombly, 550 US. at 555), affJ, 562 F. App’x 964 (Fed.
Cir.), filig denied (Fed. Cir. 2014). As stated in Ashcroft v. lgba , “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ 550 US. at 555. Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.”’fihcroft v. lgbal, 556 US. at 678 (quoting M
Atl. Corp. v. Twombly, 550 US. at 555).
The Tucker Act 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 allowjurisdiction 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. E United States v. Navajo Nation, 556 US. 287,
289—90 (2009); United States v. Mitchell, 463 US. 206, 216 (1983); E alfiGreenlee
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), figflflg en banc denied
(Fed. Cir. 2007), gt, denied, 552 US. 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 US. at 216; fi alfl United States v.
White Mountain Apache Tribe, 537 US. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), in. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s. Musliresm Serv. lnc._y,.
United States, 521 F.3d at 1343 (“[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 Ganeration 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
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) s . . .
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 SS, 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.” ld.; E E |United States v. |Testan, 424 US.
[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 SS, 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);
fig alfl Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
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 US. at 290 (quoting United States v. Testan, 424 US. 392, 400
(1976)); E ali Lit-1‘ 5' -231m _ v. White Mountain fipaQfie-Triiké; 537 US. at 472; United
States v. Mitchell, 463 US. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), in. denied, 555 US. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. _S_e_e United States v. Navajo
Nation, 556 US. 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'sjurisdiction under
the Tucker Act.”); Peoples v. United States, 87 Fed. Cl. 553, 565—66 (2009).
Pursuant to 28 U.S.C. § 2501 (2012), suits against the United States are subject
to a six-year statute of limitations. According to 28 U.S.C. § 2501:
10