Khan v. United States ( 2018 )

RI I
3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaims
No. 18-609C
(Filed: July 12, 2018)
(NOT TO BE PUBLISHED)
********************************** FILED
KAREN KHAN, )
) JUL 12 2018
Plaintiff, )
) U.S . COURT OF
FEDERAL CLAIMS
v. )
)
UNITED ST ATES, )
)
Defendant. )
)
********************************** )
Karen Khan, prose, Poughkeepsie, New York.
Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Chad A. Readier, Acting Assistant Attorney General, Civil Division, and Robert E. Kirschman,
Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Depa11ment of Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Judge.
Pending before the court is defendant's motion to dismiss pursuant to Rules 12(b)( 1) and
12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"). Plaintiff, Karen Khan, alleges
that federal governmental agencies, including the Federal Bureau of Investigation and the
Depai1ment of Justice, unlawfully interfered in her personal and professional life. Compl. `` 9,
13-14, 16, 18, 27, 30, 34-35. 1 Ms. Khan contends that this interference occurred via a number of
means, including telephone calls, internet communications, and personal conversations. Compl.
`` 15, 19-21, 31-33, 42-46, 51-53, 69-73, 76-90, 93-96, 107. She claims that the federal
governmental agencies' actions have "denied ... the rights of women[,] including [herself], to
1
Citations to pai1icular portions of the plaintiffs complaint refer to the pages in the order
in which they actually appear, not as they are numbered.
7017 1450 DODO 1346 2298
the equal protection of the laws." Comp!.~ 28; see also Comp!.`` 1, 28-29. The basis for Ms.
Khan's allegations additionally relate to her professional interactions in and with several federal
courts and courts of the State of New York. Comp!.`` 1-8, 11, 30-41. 2 Ms. Khan asserts
defendant's actions violate 42 U.S.C. §§ 1985, 1986 and the Fifth and Fourteenth Amendments
to the United States Constitution. Comp!. at 44 (heading), 52 (heading), 57 (heading), ~ 113.
She seeks $30,000,000 in damages and "all other relief to which [she] is entitled." Comp!.``
114-15. For the reasons set out below, the court grants the government's motion to dismiss for
lack of jurisdiction and for failure to state a claim.
ST ANDARDS FOR DECISION
The Tucker Act provides this comt with jurisdiction to entertain "any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
an executive depaitment, 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. § 149l(a)(l). The
Tucker Act does not grant a plaintiff substantive rights. In re United States, 463 F.3d 1328, 1333
(Fed. Cir. 2006). Rather, "a plaintiff must identify a separate source of substantive law that
creates the right to money damages" to establish jurisdiction. Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). "Where the comt has not
been granted jurisdiction to hear a claim, the case must be dismissed." Trevino v. United States,
113 Fed. Cl. 204, 207 (2013)(citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).
Under Rule 12(b)(6), a complaint that "fail[s] to state a claim upon which relief can be
granted" shall be dismissed. To survive a motion invoking Rule 12(b)(6), a plaintiffs complaint
must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face."' Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court is bound "to take the well-pleaded factual
allegations in the complaint as true." Papasan v. Allain, 478 U.S. 265, 283 (1986); see also
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). "However, regardless of
whether the plaintiff is proceeding prose or is represented by counsel, 'conclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss."' McZeal v. Sprint Nextel Corp., 501F.3d1354, 1356 (Fed. Cir. 2007) (internal
citations omitted); see also Williams v. United States, 100 Fed. CL 263, 275 (2011).
ANALYSIS
Where a plaintiff "has alleged-but ... has not show[n]-that [she] is entitled to relief,"
relief cannot be granted. Ashcroft, 556 U.S. at 678 (internal citations omitted). Ms. Khan sets
out her allegations in considerable detail, but these allegations do not link explicitly to claims for
2 Ms.Kahn represents that she is a lawyer admitted to the bar in the State of New York
and the United States District Court for the Southern District ofNew York. Comp!. at 12, 60;
see also Comp!.`` 15, 16, 96.
2
relief under any money mandating source of law. See generally Comp!.; Pl.'s Am. Resp. to the
Def.'s Mot. to Dismiss ("Pl. 's Am. Resp."), ECF No. 17. Her assertions do not establish "all the
material elements necessary to sustain recovery under some viable legal theory," Twombly, 550
U.S. at 562 (quoting Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1106 (7 1h Cir. 1984)
(emphasis omitted)), and they therefore fail to state a claim.
Ms. Khan concedes that her claims under the Civil Rights Acts, specifically, 42 U.S.C. §§
1985, 1986, are properly within the jurisdiction of federal district comts and not that of this
comt. Pl. 's Am. Resp. at 27. She also initially conceded that her claims under the Racketeer
Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-68, were within the
jurisdiction of federal district courts, see Pl. 's Resp. to Def.'s Mot. to Dismiss, at 27, ECF No.
16, but she subsequently withdrew that concession, see Pl. 's Am. Resp. at 27. 3 In light of Ms.
Khan's acknowledgment of the jurisdictional posture of her claims, she requests that this court
transfer the case to the United States District Court for the Southern District of New York. Id. at
26. Such a transfer would be appropriate under 28 U.S.C. § 1631 if specified requirements are
satisfied, namely that (I) the transferor court lacks subject matter jurisdiction; (2) at time the case
was filed, it could have been brought in the transferee comt; and (3) such transfer is in the
interest of justice. See Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir. 1989); see also Gray v.
United States, 69 Fed. Cl. 95, 100 (2005); Ski/lo v. United States, 68 Fed. Cl. 734, 744 (2005).
As previously discussed, Ms. Khan's claims satisfy the first element. And, federal
district comts can hear claims brought under the Civil Rights Acts and RICO, thus fulfilling the
second element. See Ingram v. Madison Square Garden Ctr., Inc., 482 F. Supp. 414, 422
(S.D.N.Y. 1979) (Civil Rights Acts); 4 K & D Corp. v. Concierge Auctions, LLC, 2 F. Supp. 3d
525, 535 (S.D.N.Y. 2014) (RICO). Even so, Ms. Khan's claims fail to satisfy the third element.
To satisy this last element, a plaintiffs claims should be sufficient to state a plausible claim. See
Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987). Because Ms. Khan
does not support her claims for monetary relief with plausible evidence, the interests of justice
will not be fmthered by transferring Ms. Khan's claims to the United States District Court for the
Southern District of New York. See generally Comp!. Consequently, the court finds that Ms.
Khan has not satisfied the prerequisites for transfer.
3
She withdrew that initial concession regarding jurisdiction over RICO claims based on
the decision by the Federal Circuit in Jones v. United States, 655 Fed. Appx. 839 (Fed. Cir.
2016). See Pl.'s Am. Resp. at 28. Nonetheless, this change in position and citation to Jones is
unavailing given the provisions of 18 U.S.C. § 1964(c), which specify that district courts shall
have jurisdiction over civil suits by persons injured by violations of RICO.
3
CONCLUSION
For the reasons stated, the government's motion to dismiss plaintiffs complaint is
GRANTED. 4 The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED.
Charles F. Lettow
Judge
4
Ms. Khan previously filed, with leave of comt, a Motion for Temporary and Permanent
Injunction, ECF No. 7, and a Revised Motion for Temporary and Permanent Injunction, ECF No.
8, on May 3 and May 15, 2018, respectively. The government sought and was granted leave to
respond to both motions and Ms. Khan's complaint in a single filing. See Order of June 4, 2018,
ECF No. 11. Because the court grants the United States' motion to dismiss, Ms. Khan's motions
seeking injunctive relief are DENIED as moot.
4