Davenport v. United States

ORIGINAL
3Jn tbe Wniteb ~tates 22 U.S.C. § 1623; the Foreign Sovereign Immunities Act (FSIA), 28
U.S.C. § 1604; criminal statutes within Title 18, of the United States Code; the Sherman
Act, 15 U.S.C. §§ 1-2; and the Social Security Act, 42 U.S.C. § 408. See Comp!. at 1-7.
Mr. Davenport seeks immediate release from Coffee Correctional Facility,
$202,500,000 in damages, and closure of any accounts derived from his purported
nationalization. Comp!. at 7-8.
The Government filed a Rule 12(b)(l) motion to dismiss on September 27, 2017.
Dkt. No. 7. The Government presents two grounds for dismissal for lack of subject matter
jurisdiction. First, it argues that the Court should reject Mr. Davenport's sovereign citizen
claims and demand for payment based on this theory. Def. Mot. to Dismiss at 3-4. Second,
it argues that the Court lacks jurisdiction to entertain Mr. Davenport's constitutional and
statutory claims. Id. at 5.
Mr. Davenport filed a response on October 10, 2017, defending his complaint and
asserting a Fifth Amendment takings violation for the processing of information such as
DNA and fingerprints, without compensation. Dkt. No. 9 (Pl. Resp.) at 2. The Government
filed its reply to Mr. Davenport's response brief on October 19, 2017. Dkt. No. 12. Mr.
Davenport then filed a sur-reply on November 2, 2017, claiming that Government counsel
agreed to settlement; the Government denied this assertion on November 9, 2017. Dkt.
Nos. 13, 14. On November 20, 2017, Mr. Davenport filed a motion for summary
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judgment, stating that both parties agree about the important facts and again claiming that
the Government agreed to settlement. Dkt. No. 15. The Court has deemed oral argument
unnecessary.
Discussion
The Tucker Act ordinarily is the focus of subject matter jurisdiction in this Court,
and states:
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. § 1491(a)(l). The Tucker Act "does not create a cause of action." RHI Holdings,
Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). Thus, a plaintiff must identify
a "separate source of substantive law that creates the right to money damages" in order to
invoke the Court's jurisdiction over a claim. Greenlee County, Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005)). Failure to establish jurisdiction under the Tucker Act requires the Court to
dismiss under Rule 12(b)(l). Outlaw v. United States, 116 Fed. Cl. 656, 658 (2014). When
deciding a Rule 12(b)(l) motion to dismiss, a court must assume all the undisputed facts
in the complaint are true and draw reasonable inferences in the non-movant's favor.
Erikson v. Pardus, 551 U.S. 89, 91 (2007). Courts hold pleadings made by prose plaintiffs
to a less stringent standard and liberally construe language in the plaintiff's favor.
Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972). However, none of
Mr. Davenport's claims survive the 12(b)(l) motion to dismiss.
A. Sovereign Citizen Claim
The "sovereign citizen" movement is one in which members seek to recover money
from the United States, at times claiming that the Government tricked or coerced them by
using identifying information, ~' birth certificates and social security documents, as
security for the national debt. See Gravatt v. United States, 100 Fed. Cl. 279, 282-83
(2011 ). Proponents of the sovereign citizen theory allege that this security interest results
in the creation of an individual trust account, containing that individual's profits. Id. Mr.
Davenport claims to be a sovereign citizen and seeks closure of his "trust account." Comp!.
at 8.
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The Tucker Act precludes sovereign citizen claims, as "[n]either birth certificates
nor social security numbers recognize or impose contractual rights, obligations, or duties."
Gravatt, 100 Fed. Cl. at 286. As such, this Court has held that claims involving the
sovereign citizen theory are "nonsensical" and should be dismissed as frivolous pursuant
to 28 U.S.C. § 1915A (requiring the court to dismiss claims which are frivolous, malicious,
or fail to state a claim upon which relief may be granted). Id. at 286-87. As the Tucker
Act precludes the sovereign citizen theory and this Court does not recognize the theory as
a cognizable claim, the Court dismisses Mr. Davenport's sovereign citizen claim for lack
of subject matter jurisdiction.
B. Statutory Claims
Mr. Davenport contends that the Government has violated the International Claims
Settlement Act, 22 U.S.C. § 1623 for the alleged taking of property; criminal statutes within
Title 18 of the United States Code for the supposed use of false documents, "deprivation
of color oflaw", conspiracy, treason, and other acts; and the Social Security Act, 42 U.S.C.
§ 408 for using his social security number. Comp!. at 2-6. Mr. Davenport also alleges
Government violations under the FSIA, 28 U.S.C. § 1604 for purportedly subjecting him
to its jurisdiction; and the Sherman Act, 15 U.S.C. §§ 1-2 for limiting his options for legal
representation and trading on a fund using his birth certificate. Id. at 2, 5-6.
The Court lacks jurisdiction to review claims pursuant to the International Claims
Settlement Act, which allows United States citizens to assert claims against foreign nations
arising from nationalization or the taking of other property. See Gutwein v. United States,
17 Cl. Ct. 720, 721 (1989); see also 22 U.S.C. § 1623(a) (1982). Similarly, this Court does
not exercise jurisdiction over criminal claims, deeming allegations of criminal acts under
Title 18 of the United Sates Code improper in this Court. Stanwyck v. United States, 127
Fed. Cl. 308, 314 (2016). This Court also cannot adjudicate claims arising from the Social
Security Act. Addams-More v. United States, 81 Fed. Cl. 312, 315 (2008) (citing Marcus
v. United States, 909 F.2d 1470, 1471 (Fed. Cir. 1990)).
Further, this Court has held that sovereign immunity claims based on the FSAI are
not money-mandating. See Watkins v. United States, 2015 WL 4481234, at *4-6 (Fed. Cl.
July 22, 2015). The Sherman Act, an antitrust statute, is also not money-mandating. See
Akinro v. United States, 91 Fed. Cl. 650, 655 (2010). In addition to this limitation, the
United States federal district courts have exclusive jurisdiction over Sherman Act
allegations, so this Court may not entertain such a claim. Id.Each of Mr. Davenport's statutory arguments is either outside of the Court's
purview or is not money-mandating, as required by the Tucker Act. Therefore, this Court
does not have jurisdiction to hear any of the statutory claims asserted in Mr. Davenport's
complaint.
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C. Constitutional Claims
Mr. Davenport also asserts violations of his constitutional rights. In his complaint,
he alleges that the nationalization process infringes upon his Fourth, Fifth, and Eighth
Amendments. Comp!. at 2, 3. However, this Court does not have jurisdiction over
violations of these amendments, because these provisions do not invoke monetary
damages. See Kenyon v. United States, 683 Fed. Appx. 945, 958 (Fed. Cir. 2017)
(unpublished) (holding that the Fourth and Eighth, along with the Fifth Amendment's Due
Process Clause, are not money-mandating). Mr. Davenport also mentions violations of the
Eleventh and Thirteenth Amendments. Comp!. at 2, 3. The Court does not have
jurisdiction over these amendments either. Fullard v. United States, 78 Fed. Cl. 294, 301
n. 12 (2007); Johnson v. United States, 79 Fed. Cl. 769, 774 (2007). As a result, Mr.
Davenport's constitutional claims cannot succeed.
The Fifth Amendment is unique in that, while its due process clause is not money-
mandating, a Fifth Amendment takings claim may result in monetary damages. Therefore,
this Court possesses jurisdiction over takings claims. See Jan's Helicopter Serv., Inc. v.
F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008). Mr. Davenport explicitly asserts a Fifth
Amendment due process violation in his complaint, claiming that the Government
"unlawfully claims admiralty jurisdiction" without a valid contract. Comp!. at 3. He did
not, however, allege a Fifth Amendment takings claim until he filed his response. Pl. Resp.
at 2 (stating that the Government "did take private property [i.e. DNA, CDNA, fingerprints,
footprints, retina scans, energy, etc.] ... without providing just compensation ... ") In its
reply, the Government rightfully notes that a party may not present new legal theories in
response to a motion to dismiss. Def. Reply at 2 (citing Dakota Tribal Industries v. United
States, 34 Fed. Cl. 295, 298 (1995)). The Court agrees and therefore may not rule on Mr.
Davenport's Fifth Amendment takings claim.
In the event that Mr. Davenport argues that he indeed made a Fifth Amendment
takings claim in his complaint, as he references this amendment twice, once generally and
the next specifically identifying the due process clause, the Court will address this claim.
See Comp!. at 2, 3 (generally referring to the Fifth Amendment and then identifying a
particular clause). In doing so, the Court finds that Mr. Davenport's argument fails for
three reasons.
First, Mr. Davenport's takings claim is founded upon the sovereign citizen theory
rejected by the Court. As such, it has no merit. Second, the Tucker Act confers jurisdiction
in connection with claims against the United States. 28 U.S.C. § 1491(a)(l). Mr.
Davenport does not, however, explain the federal government's involvement in the alleged
taking of his biological information. He refers to biological information perhaps taken by
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the state but does not explain the federal government's connection to this alleged taking.
See Pl. Resp. at 2. If a plaintiff fails to specifically allege that the federal government was
involved in the taking, the claim must fail for lack of subject matter jurisdiction. Taylor v.
United States, 2008 WL 4925214 at *8 (Fed. Cl. Oct. 29, 2008). Further, the Court does
not exercise jurisdiction over claims against individual states, so any claims that the state
of Georgia, for example, effectuated a taking in this case also fail for lack of subject matter
jurisdiction. See Burciaga v. People, 2017 WL 384329, at *2 (Fed. Cl. Jan 26, 2017).
Lastly, Mr. Davenport alleges this taking occurred in 1991, over 26 years ago. Pl. Resp. at
2. A six-year statute of limitations applies to Fifth Amendment takings claims. 28 U.S.C.
§ 2501; see also Hair v, United States, 350 F.3d 1253, 1256-60 (Fed. Cir. 2003). As Mr.
Davenport's takings claim surpasses the limitations period, it is again not within the
Court's jurisdiction.
D. Lack of a Contractual Relationship
Finally, the Tucker Act grants jurisdiction to this Court based on a money-
mandating provision or a contractual relationship between the plaintiff and the United
States. 28 U.S.C. § 1491(a)(l). As explained above, Mr. Davenport's claims fail for lack
of subject matter jurisdiction as they are not grounded in money-mandating provisions or
simply cannot be heard before this Court. Regarding a contractual relationship, the only
other route to recovery, Mr. Davenport concedes that "no contract exists" between him and
the Government. Comp!. at 4. Agreeing that his claims are not based on a contractual
provision with the Government, Mr. Davenport extinguishes any possibility of recovery
under that theory.
Conclusion
For the reasons stated above, the Government's motion to dismiss is GRANTED.
Mr. Davenport's motion for summary judgment is DENIED. The Clerk of the Court shall
enter judgment accordingly. No costs.
IT IS SO ORDERED.
THOMAS C. WHEELER
Judge
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