El v. United States

ORIGI[{At
llntbt@nitt! 9itatts @ourt otftlprul @lufins
No. 15-388G
Fifed: December2,2015 FILED
DEC - 2 ?015
:* * *
* ,1.
'* :1. * * * * :i * * * * * * i
U,S. COURT OF
MESSIAH MIZEL, EX REL. KAMAL- FEDERAL CLAIMS
JALAL: JAMES,
Plaintiff,
Pro Se Plaintiff; In Forma PauPeris;
v, Lack of Subject Matter Jurisdiction.
UNITED STATES,
Defendant.
* * :1. *,1. * * * :l * * :i * * *,* * *
Messiah Aziz El, Ex Rel' Kamal'Jalal: James, pro se, Freehold, NJ'
Albert s. larossi, Trial Attorney, commercial Litigation Branch, civil Division,
united States Department of Justice, washington, D.C., for defendant. with him were
Robert E. Kirschman, Jr., Director, commercial Litigation Branch, and Benjamin c.
Mizer, Principal Deputy Assistant Attorney General, civil Division, washington, D.C.
ORDER
HORN. J.
FINDINGS OF FACT
filed a complaint2
PIq se plaintiff Messiah Aziz El, "Ex. Rel Kamal-Jalal: James"r
in Court of Federal Claims alleging "deprivation of Petitioner's
the
-UniiJd States
1 The caption for the complaint filed in this court on April 17,2015lists "Messiah Aziz El'
Ex. Rel. Kamal-Jalal: James" as the plaintiff. In the first line of the complaint, however,
;Crystat Gabri El, Ex. Rel Crystal-Gabrielle: Hawkins'' is also indicated as a plaintiff' The
United
onty signature on the complaintwas Messiah Aziz El. Rule 11(a) of the Rules of.the
StaleJCourt of Federat Claims (RCFC) (2015) requires every pleading be signed by a
farty personally if the party is unrepresented, G1ve1 that neither "Kamal James" nor
lCry"tbf GaOri El," if they are two additional individuals, signed the.complaint, this court
does not consider eithei as a plaintiff in the above captioned case because they did not
comply with RCFC 1 1 (a). Accordingly, Mr. El is considered the only plaintiff in this
action.
ln its submissions to the court, defe-ndant refers to plaintiff as "Kamal James," which may
be his legal name.
2 Plaintiff has filed at least two other complaints in federal court. In March 2013, Mr' El
fileJ a complaint in the United States District court for the District of New Jersey, which
Constitutional and Internationally secured rights without due process of law" by "the
United States through action by the UNITED STATES DISTRICT COURT under U.S.C.
18(United States Code), prohibiting, life, liberty and property of the Petitioner."3
In his complaint, plaintiff alleges that he "is a natural person, in propria persona sui
juris, under the laws of the indigenous community Washitaw Dedugdahmoundya Nation
State and under the laws of the United States of America Republic," and thus he is
"entitled to all protections enumerated within the United States Constitution. Specifically
the Fifth Amendment right of due process, to be heard before a court of competent
jurisdiction. . . ." As relief, plaintiff seeks "an award of due process under the Fifth
Amendment to the Constitution of the United States for the rights reserved by the
Petitioner" and "an award of monetary damages under the Fifth Amendment of the
Constitution of the United States."
Defendant asserts that, in February 2015, plaintiff was convicted of conspiracy to
defraud the United States in violation of 18 U.S.C. S 286 (2012), multiple counts of
submitting false, fictitious, and fraudulent claims to the United States, and three counts of
mail fraud in violation of 18 U.S.C. S 1341 (2012) in the United States District Courtfor
the District of New Jersey. Plaintiff does not contest these assertions. The allegations
contained in the complaint currently before this court appear to arise from the criminal
proceedings involving plaintiffs arrest and eventual conviction. Plaintiff is currently
incarcerated in the Monmouth County Correctional Institution in Freehold, New Jersey.
Plaintiff's confused and disorganized complaint alleges that the United States
violated his Fifth Amendment right to due process by improperly exercising personal and
subject matter jurisdiction over him. Plaintiff argues that the United States District Court
of the District of New Jersey did not have jurisdiction for several reasons, including that
the judges were "defacto" judges "operating under color of law," the United States
Supreme Court is the only court with original ju risd iction when the United States is a party,
and, "[n]o injured party has been produced and therefore no lawful claim under common-
law exists." Plaintiff further argues that his due process rights were violated when he was
arrested by agents "acting on a warrant issued by an un-constitutional Judge
Defacto. . ."4 Plaintiff argues that the 'UNITED STATES DISTRICT COURT has entered
was dismissed for failure to state a claim upon which relief may be granted. See El v.
New Jersev, 2:13-cv-01431 (D.N.J. 2013). Shortly thereafter, Mr. El filed another
complaint in the same court, which also was dismissed for failure to state a claim upon
which relief may be granted. See El v. New Jersev, 2:13-cv-03481 (D.N.J. 2013).
3 Capitalization, grammar, punctuation, emphasis, and other errors are quoted in this
Order as they appear in plaintiffs submissions.
a To the extent that plaintiff is asserting a claim for false arrest, such a claim alleges a
tort, and this court lacks jurisdiction over such claims. See Keene Coro. v. United States,
5OB U.S. 200,214 (1993); Rick's Mushroom Serv., Inc. v. United States,521 F.3d 1338,
1343 (Fed. Cir. 2008) reh'o and reh'q en banc denied (Fed. Cir. 2004), cert. denied' 545
U.S. 1127 (2005); Gadd v. United States,232F.3d 915 (Fed. Cir. 2000); Brown v' United
sham pleas of not guilty on behalf of the Petitioner without authorization, trial has
commenced and Petitioner has been found guilty through colorable proceedings."
Plaintiff contends that he,
objected to the Personal and Subject Matter jurisdiction of the UNITED STATES
DISTRICT COURT on several occasions throughout these colorable proceedings
and all constitutional claims, statements and arguments have been ignored or
denied by (defacto) Judges. . .
Plaintiff contends that "[t]he UNITED STATES DISTRICT COURT officers, have all
intentions on proceeding under color law and disregarding their obligations to the United
States Constitution of the Republic and the Petitioner's rights that are secured therein."
Plaintiff also alleges that "Defendant has failed to provide the requested oaths of office"
that plaintiff requested defendant produce.
As relief, plaintiff seeks a judgment from this court:
1. Declaring that the actions of the Defendant in exercising authority under 28
U.S.C. 3231 to prohibit all beneficial uses of the "personal rights" constitute a
taking of private property for public use in violation of Petitioner's rights under
the Fifth Amendment to the United States Constitution of the Republic.
2. Declaring that the foregoing actions of Defendant under 28 U.S.C. 3231
constitute a deprivation of Petitioner's property without due process of law in
violation of Petitioner's rights under the Fifth Amendment to the United States
Constitution;
3. awarding Petitioner the amount of $250,000 (silver specie or currency of the
UNITED STATES), representing just compensation for these actions of
Defendant, as well as reasonable attorney fees, expenses, and all cost ofthese
proceedings...
Defendant filed a motion to dismiss for lack of subject matter jurisdiction on June
26,2015, to which Plaintiff responded, followed by Defendant filing a reply in support of
its motion and a further response by plaintiff.
DlscussloN
The court recognizes that plaintiff is proceeding pro se, without the assistance of
counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 5'19, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
States, 105 F.3d 621, 623 (Fed. Cir.) reh'q denied (Fed. Cir. 1997). The Tucker Act
specifically excludes actions sounding in tort from this court's jurisdiction. See 28 U.S.C.
S 14e1(aX1) (2012).
drafted by lawyers"), reh'q denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429
U.S. 97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Mafthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir.2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff d,
603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t]here is
no duty on the part of the trial court to create a claim which [the plaintiffl has not spelled
out in his [or her] pleading."'Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scoqin v. United States,33 Fed. Cl.2B5,293 (1995)
(quoting Clark v. Nat'l Travelers Life lns. Co. , 5'18 F .2d 1 167, 1 169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aff d,443 F. App'x 542 (Fed. Cir.2011);
Minehan v. United States, 75 Fed. C|.249,253 (2007). "While a pro se plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States,93 Fed. Cl. 163, 165 (2010)
(citing Huohes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359
(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v.
United States, 119 Fed. Cl. 133, 139 (2014) ("lwlhile the court may excuse ambiguities
in a pro se plaintiffls complaint, the court 'does not excuse [a complaint's] failures."'
(quoting Henke v. United States,60 F.3d 795,799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290,292 (2013) ("Although plaintiff's pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
Cl. at 253)).
It is well established that "'subject-matter jurisdiction, because it involves a court's
power to hear a case, can never be forfeited or waived."' Arbauqh v. Y & H Corp., 546
U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
"[F]ederal courts have an independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press." Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428 (2011l'; see also Gonzalez v. Thaler, 132 S. Ct. 641,
648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated
to consider sua sponte issues that the parties have disclaimed or have not presented.");
Hertz Corp. v. Friend, 559 U.S. 77,94 (2010) ("Courts have an independent obligation to
determine whether subjeclmatter jurisdiction exists, even when no party challenges it."
(citing &Ug-hr-Y-&-H-Q.eIS., 546 U.S. at 514)); Special Devices. Inc. v. OEA. lnc., 269
F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to
hear and decide a case." (citing Johannsen v. Pay Less Druq Stores N.W.. Inc., 918 F 2d
160, 161 (Fed. Cir. 1990)); View Enq'o. lnc. v. RoboticVision Svs.. lnc., 115 F.3d 962'
963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties
raise the issue or not."). "Objections to a tribunal's jurisdiction can be raised at any time,
even by a party that once conceded the tribunal's subject-matter jurisdiction over the
controversy." Sebelius v. Auburn Reo'l Med. Ctr., 133 S. Ct.817,824 (2013); see also
Arbauqh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal court lacks subjecf
matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry of judgment."); Cent. Pines Land Co.,
L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cr.2012\ ("An objection to a
court's subject matter jurisdiction can be raised by any party or the court at any stage of
litigation, including after trial and the entry of judgment." (citing Arbauqh v. Y & H Corp.,
546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United States, 521 F.3d at 1346
("[A]ny party may challenge, orthe court may raise sua sponte, subject matter jurisdiction
at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506; &,lde[y.,--U-nj!edsta!S,
379 F.3d 1344, 1354 (Fed. Cir.); and Fannino. Phillips & Molnar v. West, 160 F.3d 717,
720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. CL71,76, appeal dismissed,425
F. App'x 902 (Fed. Cr. 2011). ln fact, "[s]ubject matter jurisdiction is an inquiry that this
court must raise sua sponte, even where . neither party has raised this issue."
Metabolite Labs., lnc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369 (Fed. Cir.)
(citing Textile Prods.. lnc. v. Mead Corp., 134 F.3d 1481,1485 (Fed. Cir.), reh'o denied
and en banc suqqestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'q
and reh'q en banc denied (Fed. Cir. 2004), cert. qranted in pa1! sub. nom Lab. Coro. of
Am. Holdinqs v. Metabolite Labs., lnc., 546 U.S. 975 (2005), cert dismissed as
improvidentlv qranted, 548 U.S. 124 (2006); see also Avid ldentification Svs., Inc. v.
Crvstal lmport Corp.,603 F.3d 967,971 (Fed. Cir.) ("This court must always determine
for itself whether it has jurisdiction to hear the case before it, even when the parties do
not raise or contest the issue."), reh'q and reh'q en banc denied, 6'|4 F.3d 1330 (Fed' Cir.
2010), cert. denied, 131 S. Ct.909 (2011).
Pursuantto RCFC 8(aX1) and the Federal Rules of civil Procedure, a plaintiff need
only state in the complaint "a short and plain statement of the grounds for the court's
jurisdiction," and "a short and plain statement of the claim showing that the pleader is
entitled to relief." RCFC 8(aX1), (2) (2015): Fed. R. Civ. P. B(a)(1)' (2) (2015); see also
Ashcroftv. lqbal,556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v. Twomblv' 550 U.S.
sn+, sss-sl ,570 (2007)). "Determination of jurisdiction starts with the complaint, which
must be well-pleaded in that it must state the necessary elements of the plaintiffs claim,
independent of any defense that may be interposed." Hollev v. United states, 124 F.3d
1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. constr. Laborers Vacation Trust,463
U.S. 1 (1983)), reh'o denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.
United States,97 Fed. C;.203,2O8(2011); Gonzalez-McCaullev lnv. Grp., lnc. v. United
states, 93 Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted
irfeiences of fact do not suffice to support a claim." Bradlev v. Chiron Corp., 136 F.3d
1317,1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp.' 501 F.3d 1354' 1363
n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and
A. Miller, Federal Practice and Procedure S 1286 (3d ed.2004)). "A plaintiffs factual
allegations must 'raise a right to relief above the speculative level' and cross 'the line from
conceivable to plausible."'Three S Consulting v. United States, 104 Fed. Cl. 510' 523
(2012) (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed.
Cir.;, ien;q denieO (Fed. Cir. 2014). As stated in Ashcroft v. lqbal, "[a] pleading,that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will
not do.' 550 u.s. at 555. Nor does a complaint suffice if it tenders'naked assertion[s]'
devoid of 'further factual enhancement."' Ashcroft v. lqbal, 556 U S. at 678 (quoting Egll
Atl. Corp. v. Twomblv, 550 U.S. at 555).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon 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 tort.
28 U.S.C. S 1a91(aX1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navaio Nation, 556 U.S. 287, 289-90 (2009);
United States v. Mitchell, 463 U.S. 206,216 (1983); see also Greenlee Cntv., Ariz. v.
United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en bancdenied (Fed. Cir.
2007), cert. denied, 552 U.S. 11a2 QO08); Palmer v. United States, 168 F.3d 1310, 1314
(Fed. Cir. 1999).
"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 . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465,472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. v.
United States, 521 F.3d at 1343 ("[P]laintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed. Cl.764,768 (2014). In Ontario Power Generation, lnc. v.
United States, the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastoort S.S. lCorp. v. United States, 178 Ct. Cl. 599,605-06'1 372F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clappv. United States,127 Ct. Cl.505, 117 F. Supp.576,580 (1954)... .
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.
1392,1 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly refened to as claims brought under a "money-mandating"
statute.
Ontario PowerGeneration, Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);
see alsoTwp. of Saddle Brookv. United States, 104 Fed. Cl. 101, 106(2012)'
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U 5. 392' 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell,463 U.S. at 217; Blueport Co., LLC v. United States' 533 F.3d 1374'
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a1 iurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts)."). "'lf the statute is not
money-mandating, the court of Federal claims lacks jurisdiction, and the dismissal
should be for lack of subject matter lurisdiction."' Jan's Helicopter serv., lnc. v. Fed.
AviationAdmin.,52S F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee.Cjtlv'-Ariz. v.
United States, 487 F .3d at 876); Fisher v. United States , 402 F .3d 1167 , 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553' 565-66 (2009).
In his complaint, plaintiff asserted violations of his constitutional right to due
orocess under the Fifth Amendment to the United States Constitution. Plaintiff alleges
that this court has jurisdiction to hear his claims pursuant to the Tucker Act, 28 U.S.C.
s 1491(a). Defendant argues, however, that "the Tucker Act does not, by itself, create a
right to money damages against the united states," and that "the substantive right to
money damages must extend from the constitutional provision, statute, contract, or
regulation giving rise to the claim." Defendant contends that plaintiff "has failed to plead
a iubstantive source of law that creates a right to recover money damages from the
Government," because it is well established that the Due Process clause of the Fifth
Amendment does not mandate the payment of money, and, thus, does not provide a
cause of action under the Tucker Act.
7
Regarding plaintiff's claim for due process under the Fifth Amendment, the Federal
Circuit has held that this court does not possess jurisdiction to consider claims arising
under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Smith v.
United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The law is well settled that the Due
Process clauses of both the Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of action under the Tucker Act." (citing
LeBlancv. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995))), cert. denied, 134S. Ct.
259 (20'13); In re United States,463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecausethe Due
Process Clause is not money-mandating, it may not provide the basis for jurisdiction
under the Tucker Act."), reh'q and reh'q en banc denied (Fed. Cir. 2006) cert. denied sub
nom. Scholl v. United States, 552 U.S. 9a0 (2007);Acadia Tech., Inc. & Global Win Tech.,
Ltd. v. United States,458 F.3d 1327,1334 (Fed. Cir. 2006); Crockerv. United States,
125 F.3d 1475, 1476 (Fed. Cir. 1997) (citing LeBlancv. United States,50 F.3d at 1028)
(no jurisdiction over a due process violation underthe Fifth and Fourteenth Amendments);
Collins v. United States, 67 F.3d 284,288 (Fed. Cir.) ("[T]he due process clause does not
obligate the government to pay money damages.'), rc"h-g denied (Fed. Cir. 1995);
Mullenberq v. United States,857 F.2d770,773 (Fed. Cir. 1988) (finding that the Due
Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v. United
States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment Due
Process clause does not include language mandating the payment of money damages);
Harperv. United States, 104 Fed. C|.287,291 n.5 (2012); Hampel v. United.States' 97
Fed. Cl. 235,238,aff'd,429 F. App'x 995 (Fed. Ctt.2011), cert. denied, 132 S. Ct. 1105
(2012); McCullouqh v. United States,76 Fed. Cl. 1,4 (2006), appeal dismissed,236 F.
App'x 615 (Fed. Cir.), reh'q denied (Fed. Cir.), cert. denied, 552 U S. 1050 (2007)
("[N]either the Fifth Amendment Due Process Clause nor the Privileges and
lmmunities Clause provides a basis for jurisdiction in this court because the Fifth
Amendment is not a source that mandates the payment of money to plaintiff."). Due
process claims "must be heard in District court." Kam-Almaz v. united states, 96 Fed.
ct. 84, 89 (2011) (citing Acadia Tech.. lnc. & Global win Tech., Ltd. v. united States, 458
F.3d at 1334), alf'd,682 F.3d 1364 (Fed. Cir.2012); see also Hampel v. United States,
97 Fed. Cl. at 238. Therefore, to the extent that plaintiff is attempting to allege Due
Process violations, no such cause of action can be brought in this court.
In addition to monetary damages, plaintiff asks this court to declare that,
[T]he actions of the Defendant in exercising authority under 28 U.S.C. 3231
io prohibit all beneficial uses of the "personal rights" constitute a taking of
private property for public use in violation of Petitioner's rights under the
Fifth Amendment to the United States Constitution of the Republic. . . [and]
that the foregoing actions of Defendant under 28 U S'C. 3231 constitute a
deprivation of Petitioner's property without due process of law in violation of
Petitioner's rights under the Fifth Amendment to the United States
Constitution. . .
Plaintiffls allegations in no way can be considered a taking in violation of the Fifth
Amendment to the United States Constitution. The Takings Clause of the Fifth
Amendment to the United States Constitution provides in pertinent part: "nor shall private
property be taken for public use without just compensation." U.S. Const. amend. V. The
purpose of this Fifth Amendment provision is to prevent the government from "'forcing
some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole."' Palazzolo v. Rhode lsland, 533 U.S. 606, 618 (2001)
(quoting Armstronq v. United States, 364 U.S.40,49 (1960)); see also Penn Central
Transp. Co. v. Citv of New York, 438 U.S. 104,123-24, reh'q denied, 439 U.S. 883 (1978);
Linqle v. Chevron U.S.A. lnc., 544 U.S. 528, 536 (2005); E. Enters. v. Apfel, 524 U.S.
498,522 (1998); Rose Acre Farm. Inc. v. United States, 559 F.3d 1260,1266 (Fed. Cir.),
reh'q en bancdenied (Fed. Cir.2009), cert. denied, 130 S. Ct. 1501 (2010); Janowskvv.
United States, 133 F.3d 888,892 (Fed. Cir. 1998); Resource Invs., lnc. v. United States,
85 Fed. C'.447,469-70 (2009); Pumpellv v. Green Bav & Miss. Canal Co., 80 U.S. (13
Wall.) 166, 179 (1871\ (citing to principles which establish that "private property may be
taken for public uses when public necessity or utility requires" and that there is a "clear
principle of natural equity that the individual whose property is thus sacrificed must be
indemnified.").
A plaintiff must show that the government took a private property interest for public
use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.
Cir. 2004), cert. denied, 546 U.S. 81 1 (2005); Arbelaez v. United States, 94 Fed. Cl. 753,
762(2010):Gahaqanv.UnitedStates,72Fed. Cl. 157, 162(2006). "Theissueofwhether
a taking has occurred is a question of law based on factual underpinnings." Huntleiqh
USA Corp v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S.
1045 (2008) (citations omitted). The Federal Circuit has established a two-part test to
determine whether governmental actions amount to taking of private property under the
Fifth Amendment. See Klamath lrr. Dist. v. United States,635 F.3d 505,511 (Fed. Cir.
2011); Am. Pelaqic Fishinq Co. v. United States,379 F.3d 1363, 1372 (Fed. Cir.) (citing
M & J Coal Co. v. United States , 47 F .3d 1148, 1153-54 (Fed. Cir. 1995)), reh'q en banc
denied, (2004). A court first determines whether a plaintiff possesses a cognizable
property interest in the subject of the alleged taking. Then, the court must determine
whether the government action is a "'compensable taking of that property interest."'
Huntleiqh USA Corp v. United States, 525 F.3d at'1377 (quoting Am. Pelaqic Fishinq Co..
L.P. v. United States, 379 F.3d a| 1372).
A plaintiff alleging a taking must have a legally cognizable property interest, such
as the right of possession, use or disposal of the property. See Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419,435 (1982) (citing United States v. Gen. Motors
Corp., 323 U.S. 373 (19a5)); CRV Enters., lnc. v. United States,626 F.3d 1241,1249
(Fed. Cir. 2010), cert. denied, 131 S. Ct.2459 (201 1); KarukTribe of Cal. v. Ammon, 209
F.3d 1366, 1374-75 (Fed. Cir.), reh'o denied and en banc suqqestion denied (Fed. Cir.
2OO0), cert. denied, 532 U.S. 941 (2OO1). "|t is axiomatic that only persons with a valid
property interest at the time of the taking are entitled to compensation." Am. Pelaoic
Fishinq Co. v. United States, 379 F.3d al 1372 (quoting Wvatt v. United States , 27'l F .3d
1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077 (2002) and citing Cavin v. United
States, 956 F.2d 1131,1134 (Fed. Cir. 1992)). Therefore, "[i]f the claimant fails to
demonstrate the existence of a legally cognizable property interest, the courts [sic] task
is at an end." Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1372 (citing Maritrans
lnc. v. United States , 342 F.3d 1344, 1352 (Fed. Cir. 2003) and M & J Coal, 47 F.3d at
1 154). The court does not address the second step "without first identifying a cognizable
property interest." Air Peqasus of D.C., lnc. v. United States, 424 F.3d 1206, 1213 (Fed.
Cir.) (citing Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1381 and Conti v. United
States,291 F.3d 1334, 1340 (Fed. Cn.2002), cert. denied,537 U.S. 1112 (2003)), reh'o
denied and reh'o en banc denied (Fed. Cir. 2005). Only if there is to be a next step, "after
having identified a valid property interest, the court must determine whether the
governmental action at issue amounted to a compensable taking of that property interest."
Huntleiqh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelaqic Fishinq Co.
v. United States, 379 F.3d at 1372). To the extent plaintiff alleges that a violation of due
process is a taking, plaintiff has not alleged a property interest subject to a constitutional
taking claim nor has plaintiff alleged any cognizable taking.
Moreover, the Federal Circuit has explained that the Court of Federal Claims "does
not have general equity jurisdiction to grant injunctive relief." Shemonskv v. United
States, 21 5 F.3d 1340 (Fed. Cir. 1999) (upholding decision of the Court of Federal Claims
that the court's jurisdiction did not extend to injunctive or declaratory relief); see also Bank
of Guam v. United States, 578 F.3d 1318, 1331 (Fed. Cir.) reh'q and reh'q en banc denied
(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Martinez v. United States, 333 F'3d
1295, 1303 (Fed. Cir.2003); Choate v. United States,60 F.3d 840 (Fed. Cir. 1995)
(holding that "[t]he Tucker Act does not provide a means by which the Court of Federal
Claims may grant injunctive or declaratory relief where the suit does not involve a pre-
award protestorthe application of section 7428 of lhe Internal Revenue Code"). As stated
by the Federal Circuit:
The Court of Federal Claims has never been granted general authority to
issue declaratory judgments, and to hold that the Court of Federal Claims
may issue a declaratory judgment in this case, unrelated to any money
claim pending before it, would effectively override Congress's decision not
to make the Declaratory Judgment Act applicable to the Court of Federal
Claims.
Nat'l AirTraffic Controllers Ass'n v. United States, 160 F.3d 714,716-17 (Fed. Cir.1998);
see also United States v. Tohono O'Odham Nation,563 U.S.307 (2011) (The United
States Court of Federal Claims "has no general power to provide equitable relief against
the Government or its officers."). Moreover, in an action brought under 28 U.S.C.
"as an incident of and
S 1491(a), this court can only provide declaratory or injunctive relief
collateral to" a judgment for money damages. 28 U.S.C. S 1a92(a)(2); see also Tavlor v'
United states, 1 1 3 Fed. cl. 17 1, 173 (2013) (holding that the Tucker Act does not provide
independent jurisdiction over claims for injunctive relief in contractual dispute cases). For
example, in a case brought under the Tucker Act that did not involve a pre-award protest,
once the Court of Federal Claims determined that it did not have jurisdiction to hear a
plaintiffs claims for money damages, it necessarily followed that the court did not have
authority to hear that plaintiffs claims for injunctive relief. See Kanemoto v. Reno, 41
10
F.3d 641, 645 (Fed. Cir. 1994); see also Tavlor v. United States, 113 Fed. Cl. at 173.
Accordingly, plaintiff s demands for declaratory relief are dismissed for lack of jurisdiction.
Plaintiff also contends in his complaint that the New Jersey District Court did not
have subject matter or personal jurisdiction over him. To the extent that plaintiff is alleging
that the New Jersey Diskict Court erred in exercising jurisdiction in the criminal action
brought against him, such allegations also do not establish jurisdiction in this court. The
Court of Federal Claims does not have authority to review decisions issued by judges of
the United States District Courts. See Vereda, LTDA. v. United States,271 F.3d 1367,
1375 (Fed. Cir.2001); Joshua v. United States, 17 F.3d 378,379 (Fed Cir. 1994); see
also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (holding that "this court does
not have jurisdiction over [plaintiffs] claims because the court may review neither criminal
matters, northe decisions of district courts.") (internal citations omitted); Mendes v. United
States, 88 Fed. Cl. 759,762, appeal dismissed ,375 F. App'x 4 (Fed. Cir' 2009); Huffed
v. united states, 87 Fed. Cl. 696, 702 (2009) (holding that the united states court of
feOerat Claims lacked jurisdiction over claims arising from the violation of a criminal
statute); Matthews v. United states,72 Fed. cl. 274,282 (finding that the court lacked
jurisdiction
-lr/cCullouqhto consider
plaintiffs criminal claims), recons. denied, 73 Fed. Cl. 524 (2006);
v. United States, 76 Fed. Cl. at 4 (finding that the court lacked jurisdiction to
consider platntiffb criminal claims). Therefore, this court lacks jurisdiction over any of
plaintiff s claims.
when filing his complaint, plaintiff also filed a motion to proceed .in forma pauperis.
According to hislomplaint, plaintiff is an inmate at the Monmouth County Correctional
Institutiori in Freehold, New Jersey. In order to provide access to this court to those who
cannot pay the filing fees mandated in this court by RCFC 77.1(c) (2015), the statute at
2g U.S.C.-S 1g1S(2012) permits a court to allow plaintiffs to file a complaint without
payment oifees or security, under specific circumstances. The standard in 28 U.S.C.
pay such fees or give security
b iglSt"ltr) for jn forma pauperis eligibility is "unable to
iherefor.'; Determination of what constitutes "unable to pay" or unable to "give security
paUperis is left to
therefor," and therefore, whether to allow a plaintiff to proceed in forma
the discretion of the presiding judge, based on the information submitted by the plaintiff
or plaintiffs. See, eg, Rowiand v. Cal. Men's Colonv, 506 U.S. 194' 217-18 (1993);
Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011)
when the person submitting a request to proceed i1 forma oauperig is a prisoner,
2g U.S.C. S 191 5iaX2) requires tnit ttre prisoner submit, along with the affidavit required
by subsection (aX1), a certified copy of:
[T]hetrustfundaccountstatement(orinstitutiona|equiva|ent)forthe
brisone, for the 6_month period immediately preceding the filing of the
complaint or notice of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined
28 U.S.C. S 191 5(aX2); see also Matthews v. United states , 72 Fed. cl. at 277. In the
affidavit required under 28 U.S.C. S 1 915(aX1 ), a prisoner must further "state the nature
of the action, defense or appeal and affiant's belief that the person is entitled to redress."
11
28 U.S.C. S 1915(aXl). In the above-captioned case, plaintiff submitted the required
information and certification with his request to proceed in forma oauperis. Although Mr.
El's income level may qualifo him for in forma oauoeris status, as discussed above, his
complaint is being dismissed for lack of jurisdiction.
CONCLUSION
For all the reasons discussed above, plaintiffs complaint is DlsilllssED. The
Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
lLrral*
/MARIAN BLANK HORN
12