Podlucky v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1686C
Filed: December 22, 2021
NOT FOR PUBLICATION
GREGORY JOSEPH PODLUCKY, et al.,
Plaintiffs,
v.
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
Gregory Joseph Podlucky and Karla Sue Podlucky filed this suit seeking damages of
$11,374,989.42 for an alleged taking. The property allegedly taken was jewelry forfeited to the
United States following the plaintiffs’ convictions for various financial crimes.1
With the complaint, Mr. Podlucky filed a motion for leave to proceed in forma pauperis.
Mrs. Podlucky did not join in that motion. Mr. Podlucky has demonstrated that he satisfies the
requirements to proceed in this manner. Mr. Podlucky’s motion for leave to proceed in forma
pauperis is granted. Separate financial information regarding Mrs. Podlucky is not before the
Court, but the defendant has not opposed the motion with respect to her, and if the financial
information submitted by Mr. Podlucky covers his wife as well, then she too qualifies to proceed
in forma pauperis.
The defendant has moved to dismiss the complaint for lack of jurisdiction and failure to
state a claim upon which relief can be granted, pursuant to RCFC 12(b)(1) and 12(b)(6).
Because the complaint presents claims that fall outside the limited jurisdiction of the Court of
Federal Claims, the defendant’s motion to dismiss is granted.
1
The plaintiffs are suing on their own behalf. The complaint was signed only by Mr.
Podlucky; Mrs. Podlucky did not sign the complaint. Although non-lawyers may not represent
parties other than themselves in this court, the applicable Rule allows a pro se plaintiff to appear
on behalf of an “immediate relative.” Rule 83.1(a)(3) of the Rules of the Court of Federal
Claims (“RCFC”). Although Mrs. Podlucky’s relationship to Mr. Podlucky is not apparent from
the face of the complaint, materials supplied by the defendant establish that Mrs. Podlucky is Mr.
Podlucky’s wife, and he may therefore represent both plaintiffs.
I. BACKGROUND2
Mr. Podlucky was majority shareholder and chief executive officer of LeNature’s Inc.
See United States v. Podlucky, No. CR 11-37, 2019 WL 1359486 (W.D. Pa. Mar. 26, 2019)
(denying Mrs. Podlucky’s petition for post-conviction relief), certificate of appealability denied,
No. CV 19-2218, 2019 WL 6506186 (3d Cir. Oct. 24, 2019). Mrs. Podlucky was also involved
with LeNature’s, as was the Podluckys’ son, Jesse. In connection with a large-scale money-
laundering scheme involving LeNature’s, both Mr. and Mrs. Podlucky, along with Jesse, were
charged with multiple federal financial offenses.
In 2011 Mr. Podlucky pleaded guilty in the Western District of Pennsylvania to income-
tax evasion, mail fraud, and conspiracy to launder money. As part of his plea agreement, Mr.
Podlucky agreed to forfeit “all pieces of gems and jewelry that were seized as evidence during
the investigation and are currently in the possession of the United States (hereafter the Subject
Jewelry), with the exception of certain personal pieces to be agreed upon by the parties . . . .”
See United States v. Podlucky, No. CR 09-278, 2017 WL 3394142, at *1 (W.D. Pa. Jan. 13,
2017). Mr. Podlucky acknowledged in the plea agreement that the jewelry was “criminally
forfeitable to the Government as a substitute asset and voluntarily consented to the Court
entering an order of forfeiture against the Subject Jewelry in favor of the United States.” Id. Mr.
Podlucky was sentenced to 20 years of imprisonment on the fraud and conspiracy counts and
five years on the tax evasion count, to run concurrently and to terms of supervised release and
ordered to pay restitution of $661,324,329.81. Id.Mrs. Podlucky was convicted after a jury trial for her role in the fraudulent scheme and
sentenced to 51 months of imprisonment and a term of supervised release. She was also ordered
to forfeit her interest in a stock fund of approximately $1,373,000 and had a judgment entered
against her for almost $1,440,000. These latter two sanctions were entered jointly against Mrs.
Podlucky and Jesse. United States v. Podlucky, CR No. 11-37, 2012 WL 1850931 (W.D. Pa.
May 21, 2012). The Third Circuit affirmed her convictions and sentences on appeal. United
States v. Podlucky, 567 F. App’x 139 (3d Cir. 2014).
Mr. Podlucky challenged the forfeiture provision of his plea agreement in a 2013 petition
for post-conviction review. In rejecting the petition regarding the forfeiture provision, the
2
For purposes of the defendant’s motion to dismiss, the Court takes the allegations in the
complaint as true. The Court takes judicial notice of the decisions of other federal courts in
connection with the criminal cases against the plaintiffs and the pending forfeiture action, as they
have been incorporated by reference in the complaint. See Tellabs, Inc. v. Makor Issues & Rts.,
Ltd., 551 U.S. 308, 322 (2007); Bell/Heery v. United States, 106 Fed. Cl. 300, 307 (2012), aff’d,
739 F.3d 1324 (Fed. Cir. 2014). In their opposition to the motion to dismiss, the plaintiffs spend
a great deal of time challenging the validity of their guilty pleas and the evidence against them.
Their disagreement with the facts found underlying their convictions, as recited by the district
court and Third Circuit in the cases cited, is irrelevant to the Court’s resolution of the plaintiffs’
claim.
2
district court found the provision to be an unenforceable “agreement to agree.” United States v.
Podlucky, No. CR 09-278, 2014 WL 7369841, at *3-4 (W.D. Pa. Dec. 29, 2014), certificate of
appealability denied, No. 15-1240 (3d Cir. 2015).
In late 2016, Mr. Podlucky attempted to withdraw his guilty plea. The district court
rejected his effort. Podlucky, No. CR 09-278, 2017 WL 3394142. The Third Circuit affirmed
the denial of Mr. Podlucky’s motion to withdraw his guilty plea. United States v. Podlucky, 697
F. App’x 744, 746 (3d Cir. 2017).
In January 2017, Mr. Podlucky filed a “Motion to Release Lien” in the district court,
which denied the motion. The Third Circuit summarily affirmed the denial of the motion.
United States v. Podlucky, 690 F. App’x 787 (3d Cir. 2017).
Even after the rejection of all his collateral attacks on his conviction and sentence, Mr.
Podlucky continued to file various motions seeking relief from his conviction in the district
court, which rejected them in its most recent opinion. United States v. Podlucky, No. CR 09-278,
2021 WL 1124907 (W.D. Pa. Mar. 24, 2021), appeal filed, No. 21-2015 (3d Cir. May 27, 2021).
In 2012, the United States filed in rem a verified complaint for criminal forfeiture arising
from its prosecution of Mr. and Mrs. Podlucky. United States v. Various Items of Jewelry, No.
2:12-cv-01171-ANB (W.D. Pa. Aug. 15, 2012). Attached to the government’s forfeiture
complaint in that case was a 66-page listing of the various items of jewelry allegedly subject to
forfeiture. The government’s forfeiture action was stayed pending the conclusion of criminal
proceedings against Mr. and Mrs. Podlucky, and the stay remained in place while the collateral
post-conviction proceedings outlined above took place. In April 2021, the district court lifted the
stay, and the government’s forfeiture case remains pending.
In March 2021, Mr. Podlucky filed suit against the Department of Justice in the District
of Colorado alleging that it had breached the plea agreement by failing to return jewelry with an
alleged cost basis of more than $4.8 million. Podlucky v. Dep’t of Justice, No. 1:21-cv-00646-
GPG (D. Colo. March 29, 2021). The district court found that it lacked subject-matter
jurisdiction and dismissed the complaint without prejudice.
Finding no success in the district courts and the Third Circuit, the plaintiffs have now
turned to the Court of Federal Claims to seek relief.
Earlier this year, Mr. Podlucky filed a complaint in this court raising a claim closely
related to the one alleged in this case. Judge Campbell-Smith sua sponte dismissed the case
without prejudice, finding that the claim was untimely and barred by the six-year statute of
limitations on actions filed in this court under 28 U.S.C. § 2501. Podlucky v. United States, No.
21-1377C, 2021 WL 2627130 (Fed. Cl. June 25, 2021), reconsideration denied, No. 21-1377C,
2021 WL 3124073 (Fed. Cl. July 23, 2021), appeal filed, No. 21-2226 (Fed. Cir. Aug. 11, 2021).
Citing the government’s pending forfeiture action against the jewelry, Judge Campbell-Smith
declined to transfer the case in the interest of justice because to do so would produce duplicative
litigation over the same claim. Id. at *3. Judge Campbell-Smith denied reconsideration of the
dismissal. Podlucky v. United States, No. 21-1377C, 2021 WL 3124073 (Fed. Cl. July 23,
2021).
3
After denial of reconsideration in No. 21-1377 and before filing this action, Mr. Podlucky
filed two other complaints in this court. In the first case, he sued to enforce an alleged default
judgment he had filed in his closed criminal case. See Podlucky v. United States, No. 21-1634C
(Fed. Cl. July 29, 2021). That case too was assigned to the undersigned and is being dismissed
for lack of jurisdiction through an opinion and order being filed concurrently with this one. In
the second case, filed on August 3, 2021, Mr. Podlucky purported to sue on behalf of the Grace
Community Church of the Valley alleging a taking under the fifth amendment. See Grace Cmty.
Church of the Valley v. United States, No. 21-1665C, 2021 WL 5045715 (Fed. Cl. Oct. 29,
2021). That case was dismissed by Chief Judge Kaplan because Mr. Podlucky could not
represent a corporation or entity himself as a non-lawyer under RCFC 83.1(a)(3). Id. at *2.
In August 2021, after Judge Campbell-Smith dismissed Mr. Podlucky’s earlier case in
this court and after Mr. Podlucky filed the other two cases noted, the plaintiffs filed this action.
The plaintiffs allege that a federal agent testified that “fifty percent (50%) of the Jewelry that was
unlawfully taken during the searches and seizures” undertaken pursuant to a search warrant
issued by a magistrate judge “were not traced to alleged illegal proceeds” of their criminal
activities. (Compl. at 2.) From this premise, the plaintiffs allege that their “jointly-owned
Jewelry has been unlawfully taken from [them] in violation of the Takings Clause of the Fifth
Amendment.” (Id.) They seek damages of $11,374,989.42, apparently the value of half of the
jewelry subject to forfeiture to the government pursuant to Mr. Podlucky’s plea agreement. They
predicate their claim on the testimony of a federal agent during the criminal proceedings that
approximately half of the jewelry seized from the plaintiffs could be “correlate[d]” to “specific
purchase records that were found in the course of the investigation.” (Compl., Ex. 2 at 13.3)
The defendant has moved to dismiss the complaint, interposing three defenses: the
plaintiffs’ claim is barred by res judicata; the claim is barred by the statute of limitations; and the
claim is within the exclusive jurisdiction of the district courts.
II. STANDARD OF REVIEW AND JURISDICTION
A. Standard of Review
The government has moved to dismiss both for lack of subject-matter jurisdiction under
RCFC 12(b)(1) and for failure to state a claim under RCFC 12(b)(6).
Under RCFC 12(b)(1), 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.” Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). When a plaintiff’s
jurisdictional facts are challenged, only those factual allegations that the government does not
controvert are accepted as true. Shoshone Indian Tribe of Wind River Rsrv. v. United States,
672 F.3d 1021, 1030 (Fed. Cir. 2012). The court is not “‘restricted to the face of the pleadings’”
in resolving disputed jurisdictional facts, id. (quoting Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d
3The cited page numbers of the plaintiffs’ exhibits refer to the digital pagination
automatically generated by the court’s electronic docket filing system.
4
1573, 1584 (Fed. Cir. 1993), cert. denied, 512 U.S. 1235 (1994)), and may review evidence
outside the pleadings. Id.The plaintiff has the burden of establishing jurisdiction by a preponderance of the
evidence. Trusted Integration, Inc., 659 F.3d at 1163. If the court finds that it lacks subject-
matter jurisdiction over the plaintiff’s claim, RCFC 12(h)(3) requires dismissal of the claim.
Under RCFC 12(b)(6), dismissal “is appropriate when the facts asserted by the claimant
do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.
2002). The court must both accept as true a complaint’s well-pleaded factual allegations,
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and draw all reasonable inferences in favor of the
non-moving party. Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001). To
avoid dismissal under RCFC 12(b)(6), a complaint must allege facts “plausibly suggesting (not
merely consistent with)” a showing that the plaintiff is entitled to the relief sought. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
B. Pro se plaintiffs
The plaintiffs are proceeding pro se. As a result, their pleadings are entitled to a more
liberal construction than the Court would give to pleadings prepared by a lawyer. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Giving pro se litigants’ pleadings a liberal interpretation
and construction does not divest pro se plaintiffs of the responsibility of having to demonstrate
that they have satisfied the jurisdictional requirements that limit the types of claims the Court of
Federal Claims may entertain. See Spengler v. United States, 688 F. App’x 917, 920 (Fed. Cir.
2017); Kelley v. Sec’y, U.S. Dep’t of Lab., 812 F.2d 1378, 1380 (Fed. Cir. 1987). In construing
pro se litigants’ pleadings liberally, the court does not become an advocate for the litigants.
Rather, the court ensures that the pro se litigants’ pleadings are construed in a manner that gives
the litigants every opportunity to make out a claim for relief.
C. Jurisdiction
The jurisdiction of the Court of Federal Claims is established by the Tucker Act,
28 U.S.C. § 1491, which provides:
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).
The Supreme Court has interpreted the Tucker Act to waive sovereign immunity to allow
jurisdiction in the Court of Federal Claims if a claim is (1) founded on an express or implied
5
contract with the United States; (2) seeking a refund of a payment previously made to the United
States; or (3) based on federal constitutional, statutory, or regulatory law mandating
compensation for damages sustained, unless arising from a tort. See United States v. Navajo
Nation, 556 U.S. 287, 289-90 (2009). “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. 206, 216 (1983); see
also United States v. Sherwood, 312 U.S. 584, 588 (1941). Under this authority, the court may
hear claims under the fifth amendment for a taking “based on the acts of an agent of the United
States.” Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1362 (Fed. Cir. 2005).
Simply asserting a takings claim, however, does not end the matter. This court’s
authority to hear a case is limited in several ways relevant to the complaint in this case.
III. DISCUSSION
A. Res Judicata
In June 2021, Mr. Podlucky filed a complaint in this court based on the same factual
underpinnings. Judge Campbell-Smith dismissed the complaint sua sponte, finding the
complaint time-barred. Mr. Podlucky filed an appeal. The complaint in the instant case fails to
cure the jurisdictional defect identified by Judge Campbell-Smith. Having lost before one judge
of this court, the doctrine of res judicata (literally “the matter has been adjudicated”), or claim
preclusion, prevents the plaintiffs from seeking a redetermination of Judge Campbell-Smith’s
decision in a new case.
For res judicata to apply, (1) the parties in the two cases must be identical or in privity,
(2) the first suit must have proceeded to a final judgment on the merits, and (3) the claim in the
second case must be based on the same set of transactional facts as the first case. Phillips/May
Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir. 2008).
Although the earlier case was brought only by Mr. Podlucky and the current case is filed
by both Mr. and Mrs. Podlucky, the first factor is satisfied.4 Mr. Podlucky is party to both cases.
Mrs. Podlucky, as his wife, was in privity with her husband for his first claim. The fact that Mr.
Podlucky purports to represent both himself and his wife in this case requires that the Court find
Mrs. Podlucky to be in privity with her husband. As noted, were Mrs. Podlucky not in privity
with Mr. Podlucky, he could not represent her in this suit as a non-lawyer.
4
In their opposition to the motion to dismiss, Mr. Podlucky asserts that he is “removing
himself as a Plaintiff in this instant matter” to overcome res judicata. (Pls.’ Reply to Def.’s Mot.
to Dismiss at 7.) The plaintiffs have made no motion to dismiss Mr. Podlucky from this action;
consequently, he remains a plaintiff. Even were Mr. Podlucky to seek to dismiss himself
voluntarily from the case, it would make no difference. Because the plaintiffs are in privity with
each other, res judicata would still apply.
6
The third factor of the test is also satisfied. Both the first case and this one are based on
the same set of transactional facts: the seizure of the contested jewelry during the course of the
federal criminal investigation of Mr. and Mrs. Podlucky and LeNature’s.
The second factor requires a judgment on the merits of the first suit. A dismissal for lack
of jurisdiction is not an adjudication on the merits, but judges of this court have held that when a
“‘second-filed claim presents the same jurisdictional issue as raised in the first suit, the doctrine
of res judicata bars the second claim,’ unless ‘the second-filed claim contains new information
which cures the jurisdictional defect fatal to the first-filed suit.’” Lea v. United States, 126 Fed.
Cl. 203, 213 (quoting Goad v. United States, 46 Fed. Cl. 395, 398 (2000)), reconsideration
denied, 2016 WL 2854257 (May 10, 2016), aff’d, 662 F. App’x 925 (Fed. Cir. 2016); accord
Buel, Inc. v. United States, 153 Fed. Cl. 402, 404 (2021).
The plaintiffs’ complaint in this case contains no new or additional factual allegations
that would cure or tend to cure the jurisdictional defect identified by Judge Campbell-Smith
when she dismissed Mr. Podlucky’s suit based on the same set of operative facts.
Accordingly, the doctrine of res judicata bars the plaintiffs from pursuing this claim.
Their recourse is not to file a new action but to appeal Judge Campbell-Smith’s decision, and Mr.
Podlucky has already done so.
B. Statute of Limitations
Every claim brought in this court under the Tucker Act is subject to the six-year statute of
limitations of 28 U.S.C. § 2501. Under this statute, every claim must be brought within six years
after it first accrues. Martinez v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003) (en banc),
cert. denied, 540 U.S. 1177 (2004). This six-year statute of limitations is jurisdictional, John R.
Sand & Gravel Co. v. United States, 552 U.S. 130 (2008), and not subject to equitable tolling.
Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008).
The plaintiffs allege that the taking of their jewelry occurred on November 6, 2006;
January 19, 2007; and January 23, 2007. The latest date noted in the complaint is November 2,
2011, the date on which the testimony regarding what portion of the jewelry seized by search
warrant could be correlated to receipts obtained during the investigation into the plaintiffs. This
suit was filed in 2021, more than six years later than the alleged takings.
A claim under the Tucker Act “accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit . . . .” Martinez, 333 F.3d at 1303. The plaintiffs
have not identified any date later than 2011 that is relevant to their claim. They argue instead
that their claim accrued on the date of the most recent decision by the district court rejecting their
claims in March 2021. (Pls.’ Reply to Def.’s Mot. to Dismiss at 47.) The plaintiffs’ claim
accrued not when the district court made its most recent decision but when the facts underlying
their claim occurred. Those facts are related to the alleged illegal taking, and that taking
occurred more than six years before this action was filed.
7
Because the dates the plaintiffs identify in their complaint for when their claim accrued
are all more than six years before the filing of their complaint here, their claim is barred by
28 U.S.C. § 2501, and the Court lacks jurisdiction over the case.
C. Jurisdiction Over Claim for Improper Civil Forfeiture
Although the Tucket Act confers on the Court of Federal Claims jurisdiction over a claim
for money damages from the United States not sounding in tort, the Tucker Act is displaced
when a statute contains its own remedial scheme. United States v. Bormes, 568 U.S. 6 (2012).
That is the case here. Congress has created a comprehensive remedial scheme to resolve
disputes over civil asset forfeitures. Under the Civil Assert Forfeiture Reform Act of 2000, Pub.
L. 106-185, 114 Stat. 202 (April 25, 2000), Congress has vested the authority to resolve
contested asset forfeitures in federal district courts and not the Court of Federal Claims.
18 U.S.C. § 983(a)(4)(A) & (f)(3)(A).
As a result of this comprehensive remedial scheme, the Federal Circuit “has clearly
stated” that the Court of Federal Claims “does not have jurisdiction over a Fifth Amendment
taking claim based on the federal government’s in rem forfeiture of property when the plaintiff
could have participated in the [forfeiture] proceedings.” Hammitt v. United States, 69 Fed. Cl.
165, 168 (2005) (citing Vereda, Ltda. v. United States, 271 F.3d 1367, 1376 (Fed. Cir. 2001)),
aff’d, 209 F. App’x 986 (Fed. Cir. 2006), cert. denied, 552 U.S. 820 (2007); accord Upshaw v.
United States, 673 F. App’x 985 (Fed. Cir. 2016).
Under the Federal Circuit’s precedent on point, this court may not exercise jurisdiction
over a challenge to a civil forfeiture. The plaintiffs’ only recourse is in the district court. And,
indeed, the plaintiffs are participating in the ongoing civil in rem forfeiture proceeding in the
Western District of Pennsylvania. To the extent the plaintiffs seek to obtain relief, they must do
so in those ongoing proceedings, not in this court.
D. Failure to State a Takings Claim
Although the defendant did not raise the issue, there is yet another reason the plaintiffs’
claim fails. The plaintiffs have alleged that their “jointly-owned [j]ewelry has been unlawfully
taken from the [p]laintiffs in violation of the Takings Clause of the Fifth Amendment.” (Compl.
at 2 (emphasis added).) In their opposition to the defendant’s motion to dismiss, the plaintiffs
reiterate that their claim in this case is based on allegedly unlawful actions, which constituted the
taking. (See Pls.’ Reply to Def.’s Mot. to Dismiss at 43, 45, 48 n.14.)
The Federal Circuit has held that “[a] takings claim cannot be found on the theory that the
United States has taken unlawful action.” Moody v. United States, 931 F.3d 1136, 1142 (Fed.
Cir. 2019). “‘[A]n uncompensated taking and an unlawful government action constitute two
separate wrongs that give rise to two separate causes of action.’” Acadia Tech., Inc. v. United
States, 458 F.3d 1327, 1331 (Fed. Cir. 2006) (quoting Rith Energy, Inc. v. United States, 247
F.3d 1355, 1365 (Fed. Cir. 2001)) (internal quotation marks omitted). “[C]omplaints about the
wrongfulness of [government action] are . . . not properly presented in the context of [a] takings
claim.” Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352 (Fed. Cir. 2001) (on petition for
rehearing).
8
The plaintiffs here challenge the legality of the federal government’s action in seeking to
forfeit a portion of the jewels seized from them during the criminal investigation that produced
their convictions. By alleging that the government “unlawfully” took the plaintiffs’ jewelry, the
plaintiffs have failed to state a claim for a taking within the jurisdiction of the Court of Federal
Claims. They may pursue their claim for an unlawful taking in the district court.
E. Transfer is Not Warranted
Under 28 U.S.C. § 1631, a court lacking jurisdiction over an action “shall, if it is in the
interest of justice, transfer such action” to any court in which the case could originally have been
brought. The plaintiffs are already contesting the forfeiture in a civil case in the Western District
of Pennsylvania. Because their claim will be fully litigated in that action, the intertest of justice
does not require a transfer to that, or any other, federal court to allow the plaintiffs to litigate
their claim. Therefore, just as Judge Campbell-Smith did with Mr. Podlucky’s prior case,
Podlucky, 2021 WL 2627130, at *3 (Fed. Cl. June 25, 2021), the Court declines to transfer this
case to the Western District of Pennsylvania.
IV. CONCLUSION
The plaintiffs’ motion for leave to proceed in forma pauperis is GRANTED.
The plaintiffs’ claim is barred by the doctrine of res judicata, is untimely under 28 U.S.C.
§ 2501, and falls outside the subject-matter jurisdiction of the Court of Federal Claims.
Accordingly, the Court lacks jurisdiction over the claim. The defendant’s motion to dismiss the
complaint pursuant to RCFC 12(b)(1) is GRANTED, and the complaint DISMISSED under
RCFC 12(h)(3).
The plaintiffs’ claim for a taking also fails to state a claim on which relief can be granted.
Accordingly, the complaint is DISMISSED under RCFC 12(b)(6).
The Clerk is DIRECTED to enter final judgment dismissing the complaint. No costs are
awarded.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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