Flander v. United States

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No. 15-1110C
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(Filed: December 2, 2015) DEC - 2 2015
**NOT FOR PUBLICATION**
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SUSAN FLANDER,
Pro Se; Denial of Motion for
Pro Se Plaintiff, Reconsideration; Denial of Motion to
Amend Complaint; Lack of Subject-
Matter Jurisdiction
THE LINITED STATES,
DEPARTMENT OF PUBLIC
SAFETY, et al.
Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
Before the court is pro se plaintiff Susan Flander's motion for reconsideration of
this court's sua spenle dismissal of her complaint and request for leave to amend the
complaint. For the reasons stated below Ms. Flander's motion is DENIED.
Ms. Flander's original complaint concemed alleged identity theft by the Texas
Department of Public Safety ("DPS"). She requested a "civil remedy on the RICO claim
that was filed on November 15,2013" in the United States District Court for the Northem
District of Texas. Compl. 2. The district court dismissed Ms. Flander's complaint for
lack of subject-matter jurisdiction, finding that the federal criminal identification theft
statute, 10 U.S.C. $ 1028, did not give Ms. Flander a private right of action against DPS.
See Flanderv. Dep't of Pub. Safety, Civ. No. 13-4576-8,2014WL238652 (N.D. Tex.
Jan. 22,2014). In her purported amended complaint in this court, plaintiff again names
Texas state agencies as defendants, though she appears to have added the United States as
an additional defendant.r Plaintiff asserts that this court has jurisdiction under the Tucker
Act,28 U.S.C. $ 1331, and again alleges aviolation of "the zuCO statute" and 18 U.S.C.
$ 1028. See Am. Compl. 3-4
On November 4,2015, pursuant to Rule of the Court of Federal Claims ("RCFC')
12(hX3), this court sua sponte dismissed Ms. Flander's complaint on two grounds. First,
I The amended complaint does not state what injury the United States has caused her, and only
addresses the actions of DPS and the district court.
adjudicating Ms. Flander's complaint, which requested "relief'from the district court's
ruling, would require this court to improperly review the decision of another federal
court. See Smith v. United States, 36 F. App'x 444,446 (Fed. Cir. 2002) (finding that the
"Court ofFederal Claims does not have jurisdiction to review the decisions of district
courts" (citation omitted)). Second, the complaint named various Texas state agencies
and officials, not the United States, as defendants. See Upshaw v. United States, 599 F.
App'x 387, 388 (Fed. Cir. 2015) (finding this court "'does not have jurisdiction over
claims against any party other than the United States."' (quoting Trevino v. United States,
557 F. App'x. 995,998 (Fed. Cir.2014)).
Even under the most liberal construction of Ms. Flander's motion and purported
amended complaint, Ms. Flaader has failed to meet the standard for a motion for
reconsideration or to amend her complaint. To prevail on a motion for reconsideration, a
plaintiff must demonstrate "exceptional circumstances which justiff relief based on a
manifest error of law or mistake of fact." CANVS Corp. v. United States, I l0 Fed. Cl.
19,25 (2013) (quoting Henderson Ctv. Drainage Dist. No. 3 v. United States, 55 Fed. Cl.
334,337 (2003)). Accordingly,"[a] party, even apro se party, cannot prevail on a motion
for reconsideration by raising an issue that was litigated, or could have been litigated at
the time the complaint was filed." Griffin v. United States, 96 Fed. Cl. 1, 9 (2010)
(quoting Matthews v. United States, 73 Fed. Cl. 524,525-26 (2006)).
Further, because the court would be required to dismiss Ms. Flander's purported
amended complaint, her request to amend is futile. See Klamath Claims Comm. v.
United States, 54 1 F. App'x 97 4, 979 (Fed. Cir. 201 3) (finding denial of a post-dismissal
motion to amend a complaint was proper when the amendment would have been futile) .
The amended complaint does not cure the issues that led the court to find it lacked
jurisdiction over the original complaint. In addition, the amended complaint is not
founded on a money-mandating statute or regulation. See Jan's Helicopter Serv.. Inc. v.
FAA, 525 F.3d 1299,1308 (Fed. Cir. 2008). The Federal Circuit has found that the
United States cannot be liable for damages under the civil provisions of the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. $ 1961. Wolf v. United
States, 127 F. App'x 499, 501 (Fed. Cir. 2005). Nor can alleged identity theft under 18
U.S.C. $ 1028 form the basis of Ms. Flander's complaint. This court "'has no jurisdiction
to adjudicate any claims whatsoever under the federal criminal code."' Tavlor v. United
States, 616 F. App'x 423, 424 (Fed. Cir. 2015) (quoting Joshua v. United States, 17 F.3d
378,379 (Fed. Cir. 199a)).
Accordingly, plaintiff s motion for reconsideration and to her complaint is
DENIED.
IT IS SO ORDERED.