Jarvis v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1148C
(Filed: August 19, 2021)
*************************************
DEREK N. JARVIS, *
*
Plaintiff, *
* Pro Se Claim; Reparations Claim Founded
v. * on Native American Heritage, Enslaved
* Ancestors, and Systemic Racism; RCFC
THE UNITED STATES, * 12(b)(1)
*
Defendant. *
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Derek N. Jarvis, Silver Spring, MD, pro se.
Borislav Kushnir, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Senior Judge
Plaintiff Derek N. Jarvis is proceeding pro se in this matter. In his complaint he requests
forty million dollars in damages related to the treatment of indigenous Americans who were
enslaved and whose descendants continue to suffer from systemic racism. Mr. Jarvis also applies
to proceed in forma pauperis. Defendant moves, pursuant to Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims (“RCFC”), to dismiss Mr. Jarvis’s complaint for lack of
subject matter jurisdiction. For the reasons set forth below, the court grants Mr. Jarvis’s
application to proceed in forma pauperis and also grants defendant’s motion to dismiss.
I. BACKGROUND
Mr. Jarvis is a frequent litigant in federal courts. 1 See, e.g., Jarvis v. U.S. Dep’t of Hous.
& Urb. Dev., 310 F. Supp. 3d 79, 83 (D.D.C.) (granting defendant’s summary judgment motion
1
The court derives much of this background information from the complaint, but also
relies on public records such as federal court decisions. See, e.g., Indium Corp. of Am. v.
Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed. Cir. 1985) (stating that when “deciding . . . a Rule
12(b)(1) motion, the court can consider, as it did in this case, evidentiary matters outside the
pleadings”); Floyd v. United States, 125 Fed. Cl. 183, 190 n.3 (2016) (noting that Federal Rule
of Evidence 201 permits the court to take judicial notice of matters of public record). The court
makes no findings of fact in this opinion.
in a Freedom of Information Act (“FOIA”) action), aff’d, No. 18-5127, 2018 WL 5115539 (D.C.
Cir. Oct. 12, 2018); Jarvis v. City of Alexandria, No. 17-CV-378, 2017 WL 2692682, at *2 (E.D.
Va. June 22, 2017) (entering an antifiling injunction because Mr. Jarvis had “a history of
vexatious litigation, having now filed over twenty-five meritless lawsuits in Maryland,
Pennsylvania, and Virginia”), aff’d sub nom. Jarvis v. City of Alexandria Mayor’s Off., 699 F.
App’x 186 (4th Cir. 2017) (mem.); Jarvis v. FedEx Off. & Print Servs., Inc., No. 08-1694, 2011
WL 826796, at *10 (D. Md. Mar. 7, 2011) (granting defendant’s motion for summary judgment
on a civil rights claim), aff’d, 442 F. App’x 71 (4th Cir. 2011). In this court, Mr. Jarvis has filed
four prior suits, three of which were FOIA suits dismissed for lack of jurisdiction, see Jarvis v.
United States, No. 17-829C, slip op. at 2 (Fed. Cl. July 6, 2017); Jarvis v. United States, No.
17-828C, 2017 WL 2735597, at *1 (Fed. Cl. June 26, 2017); Jarvis v. United States, No.
17-763C, slip op. at 2 (Fed. Cl. June 22, 2017), and a fourth, also dismissed for lack of
jurisdiction, which alleged that he had been denied access to impartial justice by the United
States District Court for the District of Maryland, Jarvis v. United States, No. 17-762C, 2017 WL
4674048, at *1 (Fed. Cl. Oct. 18, 2017), aff’d, 718 F. App’x 984 (Fed. Cir. 2018) (mem.).
In the complaint now before the court, Mr. Jarvis’s allegations of fact largely concern the
historic treatment of Native Americans, slaves, and their descendants, as well as the “Black-
White wealth gap.” Compl. 23. Mr. Jarvis alleges that he is a “direct descendant of the
Cherokee Freedmen,” id. at 1, that he is of Cherokee, Powhatan, and Iroquois ancestry, and that
he is “100% Native American” and “NOT AFRICAN,” id. at 4. As a result of historical forces
and the effects of racism, Mr. Jarvis asserts that he is destitute.
Mr. Jarvis’s complaint references numerous sources of law that are examined in more
detail below. To cite just a few examples of the law upon which he relies, Mr. Jarvis refers to
the constitutional guarantees of due process and equal protection, as well as civil rights statutes.
He also alleges that he has been slandered and that his birthright of land, labor, and wealth has
been “converted” by the United States. Id. at 19. Perhaps the most accurate characterization of
his claim is that he seeks reparations for acts against “so called (Black) Americans” by the
United States (or the original thirteen colonies). Id. at 8.
Defendant filed a motion to dismiss for lack of subject matter jurisdiction, to which Mr.
Jarvis responded. In his response, Mr. Jarvis raises two new legal bases for jurisdiction for his
suit that are addressed below. Defendant then filed its reply. The court deems oral argument
unnecessary; thus, defendant’s motion is ripe for adjudication.
II. STANDARDS OF REVIEW
A. Pro Se Plaintiffs
Pro se pleadings are “held to less stringent standards than formal pleadings drafted by
lawyers” and are “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the “leniency afforded
to a pro se litigant with respect to mere formalities does not relieve the burden to meet
jurisdictional requirements.” Minehan v. United States, 75 Fed. Cl. 249, 253 (2007); accord
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Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995) (“The fact that [the plaintiff] acted pro
se in the drafting of his complaint may explain its ambiguities, but it does not excuse its failures,
if such there be.”). In other words, a pro se plaintiff is not excused from his burden of proving,
by a preponderance of evidence, that the court possesses jurisdiction. See Banks v. United
States, 741 F.3d 1268, 1277 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988)).
B. Motion to Dismiss Under RCFC 12(b)(1)
Whether the court has subject matter jurisdiction to decide the merits of a case is a
threshold matter. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998).
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868). When considering whether to dismiss a complaint for lack of jurisdiction pursuant to
RCFC 12(b)(1), the court assumes that the allegations in the complaint are true and construes
those allegations in the plaintiff’s favor. Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).
The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to
entertain suits against the United States is limited. “The United States, as sovereign, is immune
from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity “cannot be implied but must be unequivocally expressed.” United
States v. King, 395 U.S. 1, 4 (1969).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States that are founded upon the United States
Constitution, a federal statute or regulation, or an express or implied contract with the United
States. 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a jurisdictional statute and
“does not create any substantive right enforceable against the United States for money damages.”
United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in
another source of law, such as a “money-mandating constitutional provision, statute or regulation
that has been violated, or an express or implied contract with the United States.” Loveladies
Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).
To determine whether it has jurisdiction, the court discerns the true nature of the claims
in the complaint and is not constrained by the plaintiff’s characterization of those claims. Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994). If the court finds that it lacks subject matter
jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.
III. DISCUSSION
The court discerns in the complaint a number of legal grounds for Mr. Jarvis’s claims.
Although the true nature of his claims is a request for reparations based on historic events and
systemic racism, the court first addresses the jurisdictional limits that bar the other possible
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claims discernable in the complaint. 2 The court then turns to a new jurisdictional allegation set
forth in Mr. Jarvis’s response brief. Finally, the court considers whether it has jurisdiction over
reparations claims such as the one asserted here by Mr. Jarvis.
A. Claims Against Nongovernmental Entities
As an initial matter, the court observes that Mr. Jarvis names multiple defendants in his
complaint: the United States, “United States Corporations,” and “Universities.” Compl. 1.
However, it is well settled that the United States is the only proper defendant in the Court of
Federal Claims. See 28 U.S.C. § 1491(a)(1) (providing that the Court of Federal Claims has
jurisdiction over claims against the United States); RCFC 10(a) (requiring that the United States
be designated as the defendant in the Court of Federal Claims); Nat’l City Bank of Evansville v.
United States, 163 F. Supp. 846, 852 (Ct. Cl. 1958) (“It is well established that the jurisdiction of
this court extends only to claims against the United States, and obviously a controversy between
private parties could not be entertained.” (footnotes omitted)); Stephenson v. United States, 58
Fed. Cl. 186, 190 (2003) (“[T]he only proper defendant for any matter before this court is the
United States, not its officers, nor any other individual.”). Indeed, the jurisdiction of the Court of
Federal Claims “is confined to the rendition of money judgments in suits brought for that relief
against the United States, . . . and if the relief sought is against others than the United States, the
suit as to them must be ignored as beyond the jurisdiction of the court.” Sherwood, 312 U.S. at
588. Accordingly, Mr. Jarvis’s claims against all parties except the United States must be
dismissed for lack of jurisdiction.
B. Civil Rights Claim
Turning to Mr. Jarvis’s claims against the United States, he first appears to assert a civil
rights claim founded on the institution of slavery, his Native American ancestry, and
discriminatory treatment related to the perception that he is an African-American. He references
the Civil Rights Act of 1964 and various civil rights statutes such as 42 U.S.C. §§ 1982, 1983,
1985, and 1986. It is well established, however, that racial discrimination claims, and other civil
2
Although Mr. Jarvis discusses his qualifications for membership in the Cherokee
Nation, and specifically references a ruling by Judge Thomas F. Hogan that the descendants of
the Cherokee Freedmen are entitled to tribal membership, see Cherokee Nation v. Nash, 267 F.
Supp. 3d 86, 139-40 (D.D.C. 2017), there is no allegation in the complaint that Mr. Jarvis has
applied for tribal membership. Nor does Mr. Jarvis include in the complaint a request that this
court grant him membership in the Cherokee Nation. To the extent that such a request could be
implied in the complaint, this court has no jurisdiction to provide equitable relief of this sort.
See, e.g., Hunter v. United States, No. 09-355C, 2009 WL 4857378, at *1 (Fed. Cl. Dec. 8, 2009)
(stating that this court lacks jurisdiction to provide equitable relief so that a plaintiff may gain
admission into a tribe). Further, even if Mr. Jarvis wishes to assert a claim against the Cherokee
Nation, such a claim cannot be brought in this court. See Sherwood, 312 U.S. at 588 (“[I]f the
relief sought is against others than the United States the suit as to them must be ignored as
beyond the jurisdiction of the court.”).
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rights claims, are not within the jurisdiction of this court. E.g., Daniels v. United States, 59 Fed.
Cl. 506, 507 (2004). Any civil rights claim that might be discerned in the complaint must be
dismissed for lack of subject matter jurisdiction.
C. Equal Protection and Due Process Claims
Mr. Jarvis also alludes to his rights to equal protection and due process under the law
when describing the injuries he has suffered. However, these constitutional guarantees are not
money-mandating sources of law for Tucker Act purposes. See, e.g., Mullenberg v. United
States, 857 F.2d 770, 773 (Fed. Cir. 1988) (“As to [the plaintiff’s] claim for damages for alleged
violation of the due process and equal protection clauses of the Constitution, it is firmly settled
that these clauses do not obligate the United States to pay money damages.”). Therefore, any
due process or equal protection claim in the complaint must be dismissed for lack of subject
matter jurisdiction.
D. Tort Claims
Mr. Jarvis next alleges that he is the victim of slander, because his Native American
heritage has been mischaracterized as African heritage, and conversion, because the resources of
his enslaved ancestors were appropriated. Claims of slander and conversion sound in tort. See
Wall v. United States, 141 Fed. Cl. 585, 597-98 (2019) (noting that slander is a tort); Block v.
United States, 66 Fed. Cl. 68, 72 (2005) (noting that conversion is a tort). The Tucker Act
specifically excludes tort claims from this court’s jurisdiction, 28 U.S.C. § 1491(a)(1), so to the
extent that Mr. Jarvis asserts these allegations as discrete claims, they must be dismissed. 3
E. Unjust Enrichment Claim
Mr. Jarvis further alleges that the United States has been unjustly enriched by the unfair
treatment of his ancestors. Claims founded on unjust enrichment theories rely on the equitable
principle of contracts implied in law. Jarurn Invs., LLC v. United States, 144 Fed. Cl. 255, 262-
63 (2019). This court’s Tucker Act jurisdiction does not encompass claims founded on contracts
implied in law. Id.; see also United States v. Tohono O’Odham Nation, 563 U.S. 307, 313
(2011) (stating that the Court of Federal Claims “has no general power to provide equitable relief
against the Government or its officers”); Hercules, Inc. v. United States, 516 U.S. 417, 423
(1996) (holding that Tucker Act jurisdiction excludes claims founded on contracts implied in
law). Mr. Jarvis’s unjust enrichment claim is thus beyond this court’s jurisdiction and must be
3
In his response brief, Mr. Jarvis argues that his claim before the court may be brought
under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346(b)(1). However, this court
lacks jurisdiction over FTCA claims. See Brown v. United States, 74 Fed. Cl. 546, 549 (2006)
(stating that “the Court of Federal Claims lacks jurisdiction to consider . . . claims . . . under the
FTCA”); accord Wood v. United States, 961 F.2d 195, 197 (Fed. Cir. 1992) (stating that the
federal district courts have “exclusive jurisdiction over tort claims for any amount if they fall
within the Federal Tort Claims Act”).
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dismissed.
F. Treaty Claim
Mr. Jarvis also bases his claim before this court on the Treaty with the Cherokee, July 19,
1866, 14 Stat. 799. However, as defendant points out, Mr. Jarvis has not identified a provision
of this treaty, or of other treaties given passing mention in the complaint, that is money-
mandating so as to support Tucker Act jurisdiction for his claim. Moreover, this court lacks
jurisdiction to consider claims arising from a treaty unless otherwise provided by statute, 28
U.S.C. § 1502, and Mr. Jarvis has not alleged the existence of such a statute. Thus, any claim in
the complaint based on treaty rights must be dismissed for lack of subject matter jurisdiction.
G. Breach of Trust Claim
Next, Mr. Jarvis contends in his response brief that his claim is for a breach of trust. See
Pl.’s Resp. 5 (“Plaintiff’s claim was brought under the Tucker Act, and framed in the language of
a breached trust, which Plaintiff Jarvis lays out in [the] complaint in terms of injury by the
United States, where Plaintiff Jarvis must be made whole.”). Mr. Jarvis argues that Native
Americans are owed a fiduciary duty by the United States, and that the duty arises from a
“common law trust relationship.” Id. Although asserting claims for the first time in a response
brief is no substitute for formally amending a complaint, see Movahedi v. U.S. Bank, N.A., 853
F. Supp. 2d 19, 27 (D.D.C. 2012) (stating that allegations raised for the first time in a response
brief “cannot defeat [a] motion to dismiss”); Normandy Apartments, Ltd. v. United States, 100
Fed. Cl. 247, 258-59 (2011) (granting leave to a plaintiff to formally amend a complaint in order
to assert a new claim), because Mr. Jarvis is proceeding pro se the court will consider his Native
American breach-of-trust claim, see Watson v. United States, No. 06-716, 2007 WL 5171595, at
*6-8 (Fed. Cl. Jan. 26, 2007) (considering a claim raised for the first time in a response brief by a
pro se plaintiff), aff’d, 240 F. App’x 410 (Fed. Cir. 2007).
For this court to have jurisdiction over a Native American breach-of-trust claim, the
plaintiff is tasked with identifying “statutes and regulations [that] clearly give the Federal
Government full responsibility to manage Indian resources and land for the benefit of the
Indians.” United States v. Mitchell, 463 U.S. 206, 224 (1983). The crucial first step in the
jurisdictional analysis is for a plaintiff to “identify a specific, applicable, trust-creating statute or
regulation that the Government violated.” United States v. Navajo Nation, 556 U.S. 287, 302
(2009). The second step in the analysis is for the court to determine whether the identified “trust
duty [is] money-mandating.” Id. There is no need for the court to address the second
jurisdictional test if the first is not met. Id.; see also Hopi Tribe v. United States, 782 F.3d 662,
671 (Fed. Cir. 2015) (agreeing with the trial court that there was no trust-creating source of law
identified by the plaintiff in that litigation, and not reaching the secondary question of “whether
the specific [fiduciary] obligation is money mandating”).
Mr. Jarvis has not identified any statutes or regulations that would create a trust
relationship between the United States and a descendant of the Cherokee, Powhatan, and
Iroquois tribes such as himself. Any Native American breach-of-trust claim he would assert in
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this suit is therefore not within the jurisdiction of the court. Therefore, to the extent that his
breach-of-trust claim is properly before the court, it must be dismissed.
H. Reparations Claim
The court now turns to the fundamental question raised by Mr. Jarvis’s complaint: Does
this court have jurisdiction over a claim for monetary compensation based on the historic
treatment of enslaved persons and Native Americans by the United States, and the ongoing
effects of systemic racism on one of their descendants? Mr. Jarvis thoroughly explores the topic
of reparations. 4 See Compl. 1 (alluding to “Slavery Reparations/Restitution”), 4 (alleging that
Native Americans are entitled to reparations pursuant to the Treaty with the Cherokee), 6 (stating
that the “United Nations[] agrees that restitution/reparations should be paid to the descendants of
slaves”), 15 (discussing “efforts to attempt to raise the issue of reparations and/or restitution[] for
Black American natives” and “the viability of lawsuits for reparations for human rights
violations”), 16 (stating that although “the U.S. Government[] conceded moral culpability, it
refused to provide ‘reparations’[] to victims and descendants of slavery”), 22 (“In the context of
reparations, the continuing violations [doctrine] appl[ies] in this case, as de facto slavery and
oppression is still in effect today, via systemic racism, black codes, economic exclusion,
financial hardship, deprivation of rights, equal protection of the law violations, as well as
traumatic slave syndrome.”), 26 (“The traditional standing for reparations explicitly[] assumes
that a familial relationship between the ancestor victim[] and the descendant Plaintiff, what is
called ‘hereditary’ or ‘genetic’ standing, is sufficient to bring this suit in terms of standing.”).
When discussing reparations as a legal remedy, Mr. Jarvis draws a comparison between his claim
and those based on the Holocaust, Japanese-American internments, and the historic treatment of
Native Americans. Id. at 15-17.
This court has not been authorized to consider the reparations claim that Mr. Jarvis
asserts in his suit. See Obadele v. United States, 52 Fed. Cl. 432, 442 (2002) (noting that the
plaintiffs in that case, who sought reparations as descendants of enslaved persons, “may well be
the subject of future legislation providing for reparations for slavery”), aff’d, 61 F. App’x 705
(Fed. Cir. 2003) (table). For an example of a statutory grant of jurisdiction over reparations
claims, this court was granted authorization to review certain claims brought by Japanese-
Americans affected by internment during World War II. See, e.g., Song v. United States, 43 Fed.
Cl. 621, 628-30 (1999) (discussing the passage of the Civil Liberties Act of 1988, 50 U.S.C. §
4201); see also Odow v. United States, 51 Fed. Cl. 425, 429 (2001) (noting that a 1992
amendment to the Civil Liberties Act of 1988 “granted claimants the right to seek judicial review
of a denial of compensation [for Japanese-American internment during World War II]
exclusively in the Court of Federal Claims”). Mr. Jarvis has not pointed to any such
authorization for his suit, and the court is aware of none.
In addition to asserting jurisdiction under the Tucker Act, a plaintiff in this court must
4
Mr. Jarvis also describes his reparations claim as one for restitution, Compl. 1, 5-7,
15-16, 20-22, 28, and as one for an accounting, id. at 20, 22, 28.
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point to a money-mandating source of law for his claim. See Rick’s Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (stating that a plaintiff in this court “must
look beyond the Tucker Act to identify a substantive source of law that creates the right to
recovery of money damages against the United States” (citing Mitchell, 463 U.S. at 216)). Mr.
Jarvis has not identified a source of law that commands that the United States pay reparations to
persons in his situation. Therefore, the complaint before the court must be dismissed for lack of
subject matter jurisdiction. 5
IV. APPLICATION TO PROCEED IN FORMA PAUPERIS
As noted above, Mr. Jarvis filed, concurrent with his complaint, an application to proceed
in forma pauperis. Courts of the United States are permitted to waive the prepayment or
payment of filing fees and security under certain circumstances. 6 28 U.S.C. § 1915(a)(1).
Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all of their
assets, declares that they are unable to pay the fees or give the security, and states the nature of
the action and their belief that they are entitled to redress. Id. Mr. Jarvis has substantially
satisfied the requirements set forth in 28 U.S.C. § 1915(a)(1). The court therefore grants his
application to proceed in forma pauperis.
V. CONCLUSION
There is no jurisdiction in this court for the claims stated by Mr. Jarvis in his complaint.
Consequently, the court GRANTS defendant’s motion to dismiss and DISMISSES WITHOUT
PREJUDICE the complaint for lack of subject matter jurisdiction. The court also GRANTS
Mr. Jarvis’s application to proceed in forma pauperis.
No costs are awarded. The clerk is directed to enter judgment accordingly. Mr. Jarvis is
advised that the filing of another complaint in this court that ignores the jurisdictional limits of
the Court of Federal Claims may lead to sanctions for frivolous litigation conduct.
Further, the court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
5
Transfer of the complaint to another federal court would not be in the interest of justice,
28 U.S.C. § 1631, because the question of reparations for the wrong of slavery is generally seen
as a political question not susceptible to adjudication in the courts. E.g., In re Afr.-Am. Slave
Descendants Litig., 471 F.3d 754, 758 (7th Cir. 2006).
6
While the Court of Federal Claims is not generally considered to be a “court of the
United States” within the meaning of title 28 of the United States Code, the court has jurisdiction
to grant or deny applications to proceed in forma pauperis. See 28 U.S.C. § 2503(d) (deeming
the Court of Federal Claims to be “a court of the United States” for the purposes of 28 U.S.C.
§ 1915); see also Matthews v. United States, 72 Fed. Cl. 274, 277 (2006) (stating that this court
“has authority to waive the prepayment of filing fees and grant a motion to proceed in forma
pauperis”).
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order would not be taken in good faith because, as alleged, Mr. Jarvis’s claims are clearly
beyond the subject matter jurisdiction of this court.
IT IS SO ORDERED.
MARGARET M. SWEENEY
Senior Judge
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