Allen v. United States ( 2020 )

In the United States Court of Federal Claims
No. 20-792C
(Filed July 21, 2020)
NOT FOR PUBLICATION
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DERRICK MICHAEL ALLEN, *
SR., *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
WOLSKI, Senior Judge.
Plaintiff Derrick Michael Allen, Sr., who is representing himself in this
matter, alleges that the United States District Court for the Middle District of
North Carolina (district court) intentionally and improperly dismissed several
lawsuits he filed in that court, on the grounds that they lacked subject-matter
jurisdiction or otherwise failed to state a claim. Compl. at 1–3. A careful review of
the complaint reveals that, even if everything Mr. Allen alleges is true, the subject
matter of his complaint does not come within the jurisdiction of this court.
As a preliminary matter, the Court notes that on July 8, 2020, plaintiff filed a
motion for appointment of counsel under 28 U.S.C. § 1915(e)(1). See ECF No. 8.
Although the government has not yet responded to this motion, section 1915(e)(1)
does not authorize a court to “appoint” an attorney to represent an indigent litigant,
but instead merely to “request” that one do so. See Mallard v. U.S. Dist. Court for
the S. Dist. of Iowa, 490 U.S. 296, 300–09 (1989).
The Court generally refrains from making such requests, which an attorney
may feel leaves him no choice but to accept. The very concept of a branch of our
national government compelling an attorney to represent a party without payment
for his services is inimical to the purpose of our court, which exists to ensure that
citizens are compensated when the government takes or contracts for their property
or services. Barrera v. United States, No. 15-1371C, 2016 WL 690682, at *1 (Fed.
Cl. Feb. 19, 2016). In any event, when sought by a plaintiff in a civil matter who is
unable to afford counsel, courts may appropriately involve themselves in the
securing of counsel only in “extraordinary circumstances” with severe potential
consequences---such as the danger of being civilly committed, see Vitek v. Jones, 445
U.S. 480 (1980) (plurality opinion in relevant part), or of losing custody of a child,
see Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981). Here, plaintiff’s claim is for
compensation, presumably relating to the lawsuits he filed in the district court.
Compensation claims by their nature fall short of the extraordinary circumstances
justifying court-requested assistance. Because plaintiff failed to demonstrate the
extraordinary circumstances that would make it appropriate for the Court to
request that a lawyer represent him, plaintiff’s motion for appointment of counsel,
ECF No. 8, is DENIED.
In this case, Mr. Allen seeks $400 in compensation for the filing fee
associated with one of his federal lawsuits in North Carolina,1 as well as an
improbable $250,000 for “postage, copying fees, and certified mail (return receipts)”
expenses that he allegedly incurred in connection with eleven lawsuits he had filed
in the district court. Compl. at 4; see also id. at 2 (enumerating case numbers). In
brief, Mr. Allen challenges the district court’s dismissal of his numerous lawsuits
because he contends the complaints contained sufficient facts to survive dismissal.
Id. at 2–3. He contends these dismissals constitute “intentional disregard for the
rights” he has under the U.S. Constitution, specifying in this regard only a due
process right to commence lawsuits. Id. at 1. Relatedly, plaintiff appears to assert
that several of the dismissals are deficient because they employ legal reasoning
from unpublished opinions, which Mr. Allen posits are “not legal precedent.” Id. at
2. He maintains that he properly pleaded cases coming under the federal question
and diversity jurisdiction statutes, 28 U.S.C. §§ 1331 and 1332. Id. at 3. Finally,
plaintiff appears to challenge the district court’s decision to imprison him for
unlawful ownership of a firearm as a felon,2 arguing that he was never a felon. Id.3
1 The filing fee appears to be for the case Allen v. Tri-Lift N.C., Inc., 1:19cv851,
2020 WL 70984 (M.D.N.C. Jan. 7, 2020). See Compl. at 2, 4.
2 See generally United States v. Allen, 734 F. App’x 898 (4th Cir. 2018) (per curiam),
vacated, 139 S. Ct. 2774 (2019) (mem.).
3 Although he does not articulate an unjust conviction and imprisonment claim
under 28 U.S.C. § 2513, such a claim could not be brought in this case due to the
rule against claim-splitting, see Young v. United States, 60 Fed. Cl. 418, 423–24
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As is frequently the case when individuals represent themselves without the
assistance of counsel, Mr. Allen seems to misunderstand the jurisdiction that
Congress has bestowed upon the Court of Federal Claims. Under the Tucker Act,
this court is primarily granted jurisdiction to hear cases brought against the U.S.
government by parties alleging breach of a contract or the violation of a federal law
that requires the federal government to pay money when violated---often called a
“money-mandating” law. See 28 U.S.C. § 1491(a)(1). In no event may this court
entertain claims involving tortious conduct. See id. (prohibiting claims “sounding in
tort”). Although Mr. Allen invokes the Tucker Act as a source of our court’s
jurisdiction, see Compl. at 1, the Tucker Act alone does not create a substantive
right to relief. See Me. Cmty. Health Options v. United States, --- U.S. ---, 140 S. Ct.
1308, 1327, 206 L. Ed. 2d 764 (2020) (quoting United States v. Navajo Nation, 556
U.S. 287, 290 (2009)). Instead, the Tucker Act must be paired with a money-
mandating source of law. Navajo Nation, 556 U.S. at 290. The complaint does not
properly allege the existence of a contract with the federal government, nor does it
allege that the federal government violated a money-mandating provision of law.
See Compl. 1–5; cf. United States v. Mitchell, 463 U.S. 206, 216 (1983) (“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 . . . .”); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013)
(“To be cognizable under the Tucker Act, the claim must be for money damages
against the United States, and the substantive law must be money-mandating.”).
The only federal law that Mr. Allen appears to mention as a basis for relief is
the Fifth Amendment’s Due Process Clause. See Compl. 1.4 But this constitutional
provision has long been held not to support this court’s jurisdiction. See LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing Carruth v. United States,
627 F.2d 1068, 1081 (Ct. Cl. 1980)); see also Smith v. United States, 709 F.3d at
1116 (“The law is well settled that the Due Process clauses of both the Fifth and
(2004), as he has previously filed a separate complaint containing that claim, see
Allen v. United States, No. 20-437C (Fed. Cl. Apr. 13, 2020).
4 As noted above, plaintiff also cites the federal question and diversity jurisdiction
statutes, 28 U.S.C. §§ 1331–32. See Compl. at 3. But these concern the jurisdiction
of district courts, not our court. See, e.g., Curry v. United States, 787 F. App’x 720,
722 (Fed. Cir. 2019); Ali v. United States, No. 19-586C, 2019 WL 3412313, at *4
(Fed. Cl. July 29, 2019). Moreover, those statutes contain no language mandating
that the federal government pay money damages for their violation. See 28 U.S.C.
§§ 1331–32.
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Fourteenth Amendments do not mandate the payment of money and thus do not
provide a cause of action under the Tucker Act.”).5
Moreover, to the extent that Mr. Allen complains about the district court’s
disposition of his previous cases, that is not a matter the Court can entertain
because the Court of Federal Claims lacks jurisdiction to review the decisions of the
federal district courts. See Shinnecock Indian Nation v. United States, 782 F.3d
1345, 1352 (Fed. Cir. 2015) (“Binding precedent establishes that the Court of
Federal Claims has no jurisdiction to review the merits of a decision rendered by a
federal district court.”); Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed.
Cir. 2001) (“The Court of Federal Claims ‘does not have jurisdiction to review the
decisions of district courts.’” (quoting Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994))); see also Allustiarte v. United States, 46 Fed. Cl. 713, 718
(2000) (no jurisdiction over bankruptcy court’s decisions), aff’d, 256 F.3d 1349
(2001), cert. denied, 534 U.S. 1042 (2001); cf. Campbell v. United States, 932 F.3d
1331, 1340 (Fed. Cir. 2019) (holding that our court cannot “‘entertain a taking[s]
claim that requires the court to scrutinize the actions of another tribunal.’” (quoting
Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370, 1386 (Fed. Cir. 2017) (alteration
in original))). If Mr. Allen is displeased with the outcomes of his cases, he must
appeal to the immediate appellate court which oversees judgments rendered by that
court, the United States Court of Appeals for the Fourth Circuit. See 28 U.S.C.
§§ 41, 1291, 1294(1). Further, to the extent Mr. Allen alleges that the judges of the
district court disposed of his cases improperly, this is a claim that falls outside this
court’s subject-matter jurisdiction because it sounds in tort. See 28 U.S.C.
§ 1491(a)(1).
When a plaintiff has failed to state a claim that falls within the subject-
matter jurisdiction of this court, a sua sponte dismissal is required. See Rule
12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the
court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); St. Bernard Par. Gov’t v. United States, 916 F.3d 987,
992–93 (Fed. Cir. 2019) (“[T]he court must address jurisdictional issues, even sua
sponte, whenever those issues come to the court’s attention, whether raised by a
party or not . . . .”); Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004).
Because Mr. Allen has failed to raise a claim within the Court’s jurisdiction, the
5 The only circumstance in which the Fifth Amendment’s Due Process Clause may
be a basis for our jurisdiction is when a claim concerns an illegal exaction, which is
not the case here. See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573
(Fed. Cir. 1996); Augusta v. United States, No. 18-883C, 2018 WL 6721748, at *3 n.6
(Fed. Cl. Dec. 20, 2018).
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Court DISMISSES the case under RCFC 12(h)(3). The Clerk is directed to close
the case.6
IT IS SO ORDERED.
VICTOR J. WOLSKI
Senior Judge
6Plaintiff’s application to proceed in forma pauperis, ECF No. 4, is hereby
GRANTED, and he is thus relieved of paying the filing fee.
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