Greene v. United States ( 2023 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
CONSOLIDATED
______________________________________
)
TONY LAMONTE GREENE, et al., )
)
Plaintiffs, ) No. 22-1064
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v. ) Filed: April 25, 2023
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THE UNITED STATES, )
)
Defendant. )
______________________________________ )
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DANIEL CODY WATKINS, )
)
Plaintiff, ) No. 22-1185
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v. )
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THE UNITED STATES, )
)
Defendant. )
______________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs in this consolidated matter are members of the Cherokee Nation who are
incarcerated in Oklahoma. They claim that pursuant to rights granted in treaties between the
United States and the Cherokee Nation their convictions by the State of Oklahoma were unlawful.
Before the Court are the Government’s Motion to Dismiss, Plaintiffs’ Motion to File a Surreply,
and Plaintiffs’ Motion for Joinder. For the reasons stated below, the Court GRANTS the
Government’s Motion and DENIES Plaintiffs’ Motions.
BACKGROUND
Each Plaintiff in this consolidated matter alleges to be either a member of the Cherokee
Nation or a descendant of freedmen subject to the treaties between the Cherokee Nation and the
United States. Pls.’ Compl. at 1, ECF No. 1.1 Plaintiffs were convicted of state crimes and are
currently inmates at the James Crabtree Correctional Center in Helena, Oklahoma. Id. at 1–2.
Plaintiffs in the Greene case filed their Complaint pro se on August 19, 2022, and Plaintiff
in the Watkins case filed his Complaint pro se on August 30, 2022. Plaintiffs allege that they were
subjected to Oklahoma criminal law proceedings in violation of treaty provisions between the
Cherokee Nation and the United States. Id. at 3. They each seek $300,000 plus $100 per day of
detention in compensatory damages and $1,000,000 in punitive damages for their alleged wrongful
incarceration. Id. In their Complaint, Plaintiffs in the Greene case also requested class
certification and appointment of counsel, which the Court denied. See id.; Order at 8, ECF No.
25. Plaintiff Watkins’ Complaint likewise requests appointment of counsel, which the Court has
not yet addressed. Pl.’s Compl. at 3, Watkins, No. 22-1185, ECF No. 1. Because the Complaints
filed in each case are substantively identical, the Court consolidated the cases on January 18, 2023.
See Consolidation Order at 2, ECF No. 35.
On December 15, 2022, the Government filed a Motion to Dismiss pursuant to Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”).2 See Def.’s Mot. to
Dismiss (“MTD”), ECF No. 29. The Government argues that the Court lacks jurisdiction over
Plaintiffs’ claims because they have not identified a provision in the cited Cherokee treaties that
would entitle them to monetary compensation. Id. at 7. Plaintiffs respond that certain treaty
1
The Complaints and Responses to the Government’s Motion to Dismiss filed by the
Greene and Watkins Plaintiffs are nearly identical. To avoid unnecessary duplicative citations,
this opinion refers to the docket entries in the lead case, Greene v. United States, No. 22-1064,
unless stated otherwise.
2
Because the Government filed the Motion before the cases were consolidated, the Court
entered an order deeming the Government’s Motion to Dismiss as applying to Plaintiff Watkins in
addition to the Greene Plaintiffs. See Order at 2, ECF No. 38. Plaintiff Watkins was given an
opportunity to file supplemental briefing in response to the Government’s Motion. Id.
2
provisions guarantee that members of the Cherokee Nation are not subject to state criminal
prosecution, and they demand monetary compensation from the United States for breach of that
guarantee. Pls.’ Resp. to MTD ¶¶ 5–6, ECF No. 36. The Government filed its Reply in support
of its Motion on February 23, 2023, and the Motion to Dismiss is now fully briefed. See Reply in
Support of MTD, ECF No. 44. Plaintiffs subsequently filed a Motion for Leave to File a Surreply,
arguing that Cherokee treaties should be construed liberally in favor of the Indians. Mot. to File
Surreply ¶ 2, ECF No. 48.
On March 3, 2023, Plaintiffs also filed a Motion for Joinder seeking to add three other
individuals—Kendall Dean Mitchell, Shawn David McMinn, and Billy Joe Wolfe, Jr.—as
Plaintiffs. See Mot. for Joinder, ECF No. 47. Like Plaintiffs, Mr. Mitchell, Mr. McMinn, and Mr.
Wolfe are alleged members of the Cherokee Nation who are incarcerated at the James Crabtree
Correctional Center. Id. ¶¶ 1–3. The Court previously denied Motions for Joinder filed by Mr.
Mitchell and Mr. McMinn without prejudice due to procedural defects. See Order Denying Mot.
for Joinder, ECF No. 42; Order Denying Mot. for Joinder, ECF No. 45.
LEGAL STANDARDS
I. Jurisdiction of the Court of Federal Claims
The United States Court of Federal Claims is a court of limited jurisdiction. Massie v.
United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000). Derived from the Tucker Act, the Court has
jurisdiction over “any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding in
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tort.” 28 U.S.C. § 1491(a)(1).3 The Tucker Act, however, is “only a jurisdictional statute; it does
not create any substantive right enforceable against the United States for money damages.” United
States v. Testan, 424 U.S. 392, 398 (1976); see United States v. Navajo Nation (Navajo II), 556
U.S. 287, 290 (2009) (noting the Tucker Act does not create a substantive right but acts simply as
a “jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on
other sources of law (e.g., statutes or contracts)”). Thus, to establish jurisdiction, a plaintiff must
identify a separate source of law that “can fairly be interpreted as mandating compensation by the
Federal Government.” Navajo II, 556 U.S. at 290 (quoting Testan, 424 U.S. at 400).
While the Court generally lacks jurisdiction over claims dependent upon a treaty with
foreign nations, 28 U.S.C. § 1502, the Court can assert jurisdiction over claims grounded in treaties
between the United States and Indian nations, which are treated “as a species of contract.” Tsosie
v. United States, 825 F.2d 393, 401 (Fed. Cir. 1987); see Washington v. Wash. State Com.
Passenger Fishing Vessel Ass’n (Wash. C.P.F.V.), 443 U.S. 658, 675 (1979) (“A treaty, including
one between the United States and an Indian tribe, is essentially a contract between two sovereign
nations.”). Generally, “when a breach of contract claim is brought in the Court of Federal Claims
under the Tucker Act, the plaintiff comes armed with the presumption that money damages are
available, so that normally no further inquiry is required.” Holmes v. United States, 657 F.3d 1303,
1314 (Fed. Cir. 2011). However, when the contract at issue is not of the type that normally
involves purely monetary relief, the presumption does not apply, and the plaintiff must
demonstrate that the contract contains provisions that can reasonably be inferred to mandate
3
Plaintiffs identify the Little Tucker Act, 28 U.S.C. § 1346, as the jurisdictional statute
relevant to their claims. ECF No. 1 at 1. Because Plaintiffs seek greater than $10,000 from the
Government, the Tucker Act, 28 U.S.C. § 1491, is the relevant jurisdictional statute. In any event,
“[t]he Little Tucker Act follows the same rules as its bigger sibling, the Tucker Act.” Nat’l
Veterans Legal Servs. Program v. United States, 968 F.3d 1340, 1348 (Fed. Cir. 2020).
4
compensation by the United States. Id. at 1315. Treaties with Indian nations fall into those
categories of contracts that require the plaintiff to identify money-mandating provisions in the
treaty. See Jarvis v. United States, No. 22-1006, 2022 WL 1009728, at *2 (Fed. Cir. Apr. 5, 2022)
(dismissing claim for violation of Indian treaty where plaintiff failed to identify money-mandating
provision in treaty); Moore v. United States, 163 Fed. Cl. 591, 595 (2022) (same); Edwards v.
United States, No. 15-580C, 2015 WL 6560547, at *3 (Fed. Cl. Oct. 29, 2015) (same).
Whether jurisdiction is satisfied depends on a two-part analysis. First, the plaintiff must
demonstrate that the treaty “establishes specific fiduciary or other duties, and allege that the
Government has failed to faithfully perform those duties.” Hopi Tribe v. United States, 782 F.3d
662, 667 (Fed. Cir. 2015) (internal quotation marks and brackets omitted) (quoting Navajo II, 556
U.S. at 290–91). If he satisfies the first part, the Court must then determine whether the treaty
provision(s) at issue can be fairly interpreted as making the Government liable in damages for a
breach of the duties imposed. Id. As with any alleged source of law, if the Court determines that
the treaty is not money-mandating, then dismissal of the cause of action for lack of jurisdiction is
appropriate. Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005).
II. Interpretation of Treaties with Indian Tribes
As with any contract, the Court’s role when interpreting a treaty is to ascertain the intent
of the drafters. Wash. C.P.F.V., 443 U.S. at 675. Nevertheless, because of the historically superior
negotiating position of the United States, treaties between the United States and Indian nations
“must [] be construed, not according to the technical meaning of [their] words to learned lawyers,
but in the sense in which they would naturally be understood by the Indians.” Id. at 676.
Furthermore, “Indian treaties are to be interpreted liberally in favor of the Indians, and [] any
ambiguities are to be resolved in their favor.” Minnesota v. Mille Lacs Band of Chippewa Indians
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(Mille Lacs), 526 U.S. 172, 200 (1999) (citations omitted). Even when faced with ambiguities in
an Indian treaty, the Court must “stop short of varying its terms to meet alleged injustices.” Jones
v. United States, 846 F.3d 1343, 1356 (Fed. Cir. 2017) (quoting Nw. Bands of Shoshone Indians
v. United States, 324 U.S. 335, 353 (1945)).
III. Dismissal Under Rule 12(b)(1)
Before reaching the merits of a plaintiff’s action, the Court must as a threshold matter
assure itself that subject-matter jurisdiction exists. RCFC 12(b)(1), (h)(3); see Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94–95 (1998) (affirming that subject-matter jurisdiction “‘spring[s]
from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without
exception’” (quoting Mansfield v. Swan, 111 U.S. 379, 382 (1884))). The plaintiff bears the burden
of establishing by the preponderance of evidence the Court’s jurisdiction over its claim. See Estes
Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014).
Courts should “liberally construe[]” a pro se plaintiff’s allegations and apply “less stringent
standards” to a pro se complaint in comparison to “formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). This loosening of the legal strictures on pleadings, however, does not spare pro se
plaintiffs from the burden of establishing subject-matter jurisdiction. See Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); see also Kelley v. Sec’y, U.S. Dep’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (noting that courts may not establish different rules
for pro se litigants with respect to jurisdictional requirements).
When deciding whether to dismiss a complaint pursuant to Rule 12(b)(1) for lack of
subject-matter jurisdiction, the Court must accept all factual allegations as true and draw all
reasonable inferences in the claimant’s favor. See Henke v. United States, 60 F.3d 795, 797 (Fed.
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Cir. 1995). If a complaint contains challenged factual allegations, for purposes of ruling on a
motion to dismiss, the court may inquire into facts necessary to support jurisdiction and may
resolve disputed facts. See Al Johnson Constr. Co. v. United States, 19 Cl. Ct. 732, 733 (1990);
see also Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed. Cir. 1985) (a court may
consider “evidentiary matters outside the pleadings” when assessing a Rule 12(b)(1) dismissal).
DISCUSSION
I. Plaintiffs’ Complaints Must Be Dismissed for Lack of Jurisdiction.
Plaintiffs allege that under two treaties between the Cherokee Nation and the United
States—the Treaty with the Cherokee of 1835 (known as the Treaty of New Echota) and the Treaty
with the Cherokee of 1866 (known as the Treaty of Washington)—they are not subject to the
criminal jurisdiction of the State of Oklahoma. ECF No. 36 ¶ 6; ECF No. 1 at 3. Plaintiffs argue
that because they were wrongfully prosecuted and incarcerated by the state, those treaties entitle
them to compensation from the federal government. ECF No. 1 at 3. The Court concludes that
the treaty provisions cited in Plaintiffs’ Complaints are not money-mandating and thus do not
provide a basis for the Court’s jurisdiction. Nor can the other treaty provisions identified in
response to the Government’s Motion save Plaintiffs’ claims from dismissal, as the provisions are
either not money-mandating or bear no relevance to Plaintiffs’ allegations.
A. The Treaty Provisions Identified in Plaintiffs’ Complaints Cannot Support
Jurisdiction.
In their Complaints, Plaintiffs identify at least three treaty provisions underlying their
claims. The first is Article 26 of the Treaty of Washington. ECF No. 1 at 2. That treaty, in general,
guaranteed the Cherokee Nation “title and possession of their lands, and jurisdiction over their
country.” Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 654 (1890). Article 26 states, in part:
7
The United States guarantee to the people of the Cherokee Nation the quiet and
peaceable possession of their country and protection against domestic feuds and
insurrections and against hostilities of other tribes. They shall also be protected
against inter(r)uptions or intrusion from all unauthorized citizens of the United
States who may attempt to settle on their lands or reside in their territory.
Treaty with the Cherokee, July 19, 1866, 14 Stat. 799, 1866 WL 18776 (hereinafter Treaty of
Washington). Plaintiffs also cite Article 27 of the same treaty, which sets forth in relevant part
“the duty of the United States Indian agent for the Cherokees to have such persons, not lawfully
residing or sojourning [in the Cherokee Nation], removed from the nation, as they now are, or
hereafter may be, required by the Indian intercourse laws of the United States.” Treaty of
Washington, art. 27; see ECF No. 1 at 2. Finally, they identify Article 5 of the Treaty of New
Echota. ECF No. 1 at 2–3. Under that treaty, the Cherokee Nation agreed to give up “all of its
aboriginal land interests east of the Mississippi River in exchange for substantial territory in the
present state of Oklahoma.” Cherokee Nation of Okla. v. United States, 21 Cl. Ct. 565, 568 (1990).
Article 5 states, in relevant part:
The United States hereby covenant and agree that the lands ceded to the Cherokee
nation in the forgoing article shall, in no future time without their consent, be
included within the territorial limits or jurisdiction of any State or Territory. But
they shall secure to the Cherokee nation the right by their national councils to make
and carry into effect all such laws as they may deem necessary for the government
and protection of the persons and property within their own country belonging to
their people or such persons as have connected themselves with them: provided
always that they shall not be inconsistent with the constitution of the United States
and such acts of Congress as have been or may be passed regulating trade and
intercourse with the Indians.
Treaty with the Cherokee, Dec. 29, 1835, 7 Stat. 478, 1835 WL 3710 (hereinafter Treaty of New
Echota).4
4
The Complaints also contain a brief reference to Article 2 of the Treaty of Washington as
granting Cherokee citizenship to persons formerly enslaved in the Cherokee Nation. ECF No. 1
at 3. However, Article 9 is the section that addresses this citizenship issue. Treaty of Washington,
art. 9. In an unpublished opinion, the Federal Circuit found that this treaty provision is not money-
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None of these provisions provide a basis to invoke the Court’s jurisdiction. Even assuming
they impose sufficiently “specific fiduciary or other duties” on the United States, United States v.
Navajo Nation (Navajo I), 537 U.S. 488, 506 (2003), Plaintiffs point to no language that would
raise the “fair inference” that the Government should be liable for money damages for failure to
carry out those duties. United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003)
(finding language that created specific trust duties could raise inference that duties were money-
mandating); see United States v. Mitchell (Mitchell II), 463 U.S. 206, 227 (1983) (finding duties
that required Government to generate proceeds for the tribe were money-mandating). And while
the Court must resolve treaty ambiguities in favor of the Indians, Mille Lacs, 526 U.S. at 200,
Plaintiffs point to no relevant language that would invoke this cannon of construction. The
identified treaty provisions, therefore, cannot support jurisdiction in this Court.
Indeed, courts have dismissed for lack of jurisdiction similar wrongful imprisonment
claims and other claims based on treaties between the United States and Indian tribes, including
the 1866 Treaty of Washington. See Moore, 163 Fed. Cl. at 595 (wrongful incarceration claim
brought by inmates at the James Crabtree Correctional Center premised on treaties with the
Choctaw and Chickasaw Nations); Edwards, 2015 WL 6560547, at *3 (wrongful incarceration
claim premised, in part, on the Treaty of Washington); McCoy v. United States, Nos. 05-120L, 05-
167L, 2005 WL 6124815, at *3 (Fed. Cl. June 29, 2005) (claims brought by a prisoner premised,
in part, on an alleged 1838 Indian treaty); Jarvis, 2022 WL 1009728, at *2 (reparations claim
premised on the Treaty of Washington). In such cases, the courts held that no treaty provision
applicable to the wrongs alleged provided a right to monetary compensation from the United
States. See, e.g., Jarvis, 2022 WL 1009728, at *2.
mandating. Jarvis, 2022 WL 1009728, at *2.
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B. The Other Treaty Provisions that Plaintiffs Identify in Their Responses
Cannot Save Plaintiffs’ Claims from Dismissal.
In their Responses to the Government’s Motion to Dismiss, Plaintiffs also identify two
treaty provisions for the first time as supporting jurisdiction—Article 3 of the Treaty of New
Echota and Article 13 of the Treaty of Washington.5 ECF No. 36 ¶¶ 1, 5. No claim under these
provisions is properly before the Court, as “[i]t is generally improper for a party to raise new claims
not included in its complaint in an opposition to a motion to dismiss.” Driessen v. United States,
116 Fed. Cl. 33, 44 n.10 (2014). Furthermore, even if Plaintiffs’ new claims were properly before
the Court, they would not survive a motion to dismiss.
Article 13 of the Treaty of Washington states, in relevant part:
That the judicial tribunals of the [Cherokee] nation shall be allowed to retain
exclusive jurisdiction in all civil and criminal cases arising within their country in
which members of the nation, by nativity or adoption, shall be the only parties, or
where the cause of action shall arise in the Cherokee Nation, except as otherwise
provided in this treaty.
Treaty of Washington, art. 13. Much like Article 5 of the Treaty of Washington, discussed above,
this provision recognizes the jurisdiction of the Cherokee Nation but does not impose any specific
fiduciary or other duties on the United States, nor does it contain language that contemplates an
award of money damages for the breach of any such duties. Accordingly, this provision cannot
form the jurisdictional basis for Plaintiffs’ claims.
5
Plaintiffs also briefly reference Article 4 of the Treaty of Washington as granting formerly
enslaved persons Cherokee citizenship. ECF No. 36 ¶ 6. As explained above, Article 9 is the
relevant provision, and that Article cannot support jurisdiction in this case. See supra § I.A.
Plaintiffs also reference Secretary of the Interior Order 3335, 2014 WL 4433594 (2014). ECF No.
36 ¶ 8. It is unclear for what purpose Plaintiffs reference the Order, but in any event, it is not a
money-mandating source of law. The Order expressly states it “is for guidance purposes only and
. . . is not intended to, and does not, create any right to administrative or judicial review or any
legal right or benefit, substantive or procedural, enforceable by a party against the United States.”
2014 WL 4433594, at *5–6.
10
Plaintiffs also identify Article 3 of the Treaty of New Echota as a source of law entitling
them to compensation. ECF No. 36 ¶ 1. Article 3 states, in relevant part:
The United States shall always have the right to make and establish such post and
military roads and forts in any part of the Cherokee country, as they may deem
proper for the interest and protection of the same and the free use of as much land,
timber, fuel and materials of all kinds for the construction and support of the same
as may be necessary; provided that if the private rights of individuals are interfered
with, a just compensation therefor shall be made.
Treaty of New Echota, art. 3. Plaintiffs argue that because their “private rights . . . [were] interfered
with” they are entitled to “just compensation” from the United States. ECF No. 36 ¶ 1 (quoting
Treaty of New Echota, art. 3). Read in context, however, Article 3 provides for compensation only
when the United States is exercising its right to “make and establish . . . post[s] and military roads
and forts in any part of the Cherokee country, as they may deem proper.” Treaty of New Echota,
art. 3. The allegations in Plaintiffs’ Complaints—involving alleged unlawful prosecution and
incarceration by the State of Oklahoma—bear no relation to such exercise of federal authority.
Therefore, even if Plaintiffs’ newly raised allegations under Article 3 were properly before the
Court, they would still fail to state a claim upon which relief may be granted. See Jan’s Helicopter
Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (If a “plaintiff’s case does not fit within
the scope of [a money-mandating source of law,] . . . plaintiff loses on the merits for failing to state
a claim on which relief can be granted.” (quoting Fisher, 402 F.3d at 1175–76)).
II. Plaintiffs Have Not Identified Grounds to File a Surreply.
After completion of briefing on the Government’s Motion to Dismiss, Plaintiffs filed a
Motion for Leave to File a Surreply. See ECF No. 48. A surreply is normally appropriate when a
party raises new arguments for the first time in a reply brief, thus depriving the opposing party of
the opportunity to respond. Hardy v. United States, 153 Fed. Cl. 624, 628 (2021). Plaintiffs
identified no new arguments raised by the Government in its Reply and provided no other
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justification for a surreply; rather, Plaintiffs largely reiterated prior arguments included in their
Responses. ECF No. 48 ¶¶ 1–2. The Court therefore DENIES Plaintiffs’ request to file a surreply.
III. Amendment of Plaintiffs’ Complaints Would Be Futile.
Plaintiffs request that, if the Court finds their Complaints do not identify a money-
mandating source of law or fail to state a claim upon which relief may be granted, they be allowed
to amend their pleadings to correct any deficiencies. ECF No. 36 at 3. It is within the Court’s
discretion to allow a party to amend its complaint, and amendments should be liberally granted.
Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403 (Fed. Cir. 1989). Nevertheless, “‘futility
of amendment’ may justify the denial of a motion for leave to amend.” Id. at 1403–04 (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). Courts should deny a request to amend on futility
grounds “if the amended complaint would fail to state a claim upon which relief can be granted,
or if the proposed amendment would fail for lack of jurisdiction.” Chapman v. United States, 130
Fed. Cl. 216, 219 (2017) (internal citations omitted).
In Edwards, the court found that no provision of the Treaty of Washington was money
mandating or relevant to the plaintiff’s claim seeking reimbursement for wrongful imprisonment.
2015 WL 6560547, at *1, *3; see Jarvis, 2022 WL 1009728, at *2 (finding no provision in the
Treaty of Washington was both money-mandating and relevant to plaintiff’s slavery reparations
claim). The Court likewise identifies no money-mandating provisions in the Treaty of New Echota
that are relevant to Plaintiffs’ wrongful imprisonment claims. Plaintiffs already attempted through
their Responses to identify additional relevant money-mandating provisions to no avail. Because
the treaties identified by Plaintiffs do not provide a legal basis for Plaintiffs’ claims, any
amendment based on those treaties would either fail for lack of jurisdiction or fail to state a claim.
Accordingly, the Court DENIES Plaintiffs’ request to amend their Complaints.
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IV. Appointment of Counsel Is Not Justified in this Case.
Plaintiff Watkins requests that the Court appoint him counsel pursuant to Maclin v. Freake,
650 F.2d 885, 889 (7th Cir. 1981), and 25 U.S.C. § 175. Watkins, ECF No. 1 at 3. Plaintiffs in
the Greene case made the same request premised on the same sources of law, which the Court
denied. As the Court explained, because Plaintiffs only seek monetary compensation and are not
at risk of further loss to their personal liberties, appointment of counsel is not appropriate in this
case. See ECF No. 25 at 6. The Court’s reasoning applies equally to Plaintiff Watkins’ request.
V. Plaintiffs’ Joinder Request is Moot.
Plaintiffs filed a Motion for Joinder seeking to include as plaintiffs three other individuals
who desire to bring the same claims as Plaintiffs. See ECF No. 47. As the Court has explained,
when a Plaintiff desires to include additional individuals as plaintiffs, the proper method to do so
is to seek leave to amend the complaint. ECF No. 42 at 2 (citing Bell v. United States, No. 13-
455, 2016 WL 3172401, at *2 (Fed. Cl. June 6, 2016)). However, because the Court lacks
jurisdiction to entertain the claims in Plaintiffs’ Complaints and must dismiss these cases, the Court
DENIES AS MOOT Plaintiffs’ joinder request.
CONCLUSION
For the above reasons, the Court GRANTS the Government’s Motion to Dismiss (ECF
No. 29), DENIES Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 48), and
DENIES AS MOOT Plaintiffs’ Motion for Joinder (ECF No. 47). The Clerk is directed to enter
judgment accordingly.
SO ORDERED.
Dated: April 25, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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