Brestle v. United States

RI AL
Jfn tbe Wniteb ~tates ~ourt of jfeberal ~laiuts FILED
No. 18-184C
Filed: June 22, 2018
JUN 2 2 2018
* * * * * * * * * * * * * ****** U.S. COURT OF
FEDERAL CLAIMS
GARY C. BRESTLE,
*
*
Motion to Dismiss; Subject Matter
Plaintiff, *
Jurisdiction; Pro Se Plaintiff; In
*
v. Forma Pauperis; Tort; Criminal
*
Jurisdiction; Eighth Amendment to
UNITED STATES, *
the United States Constitution;
*
Defendant. Freedom of Information Act.
*
* * * * * * * * * * * * * ****** *
Gary C. Brestle, prose, Wellington, FL.
Jeffrey M. Lowry, Trial Attorney, Commercial Litigation Branch , Civil Division ,
United States Department of Justice, Washington, D.C., for defendant. With him were
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Department of Justice,
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch , Department of
Justice, and Chad A. Readier, Acting Assistant Attorney General.
OPINION
HORN, J.
In the above-captioned case, pro se plaintiff Gary C. Brestle filed a complaint in
this court alleging that he had served as an informant for the United States, through the
Department of Justice (DOJ). Plaintiff states that he suffered "emotional distress" and
"psychological damage" due to the DOJ's failure to apprehend "individuals," on whom
plaintiff provided information in his role as an alleged informant. Plaintiff also alleges that
he was kept in "solitary confinement" in violation of his rights under the Eighth Amendment
to the United States Constitution. Plaintiff seeks an unspecified amount of compensatory
and punitive damages.
FINDINGS OF FACT
Plaintiff alleges that the DOJ has "intentionally and willfully" deprived the "federal
court system" from viewing the "documents which illustrate clearly" the "crimes" reported
by plaintiff, as an informant, to the DOJ . Plaintiff further alleges that, as a result of the
alleged concealment of "documents" by the DOJ, "he and his family live in constant fear
of retaliation. " Plaintiff claims that on several different occasions, he filed requests under
7012 3460 0001 77 91 8255
the Freedom of Information Act (FOIA), seeking "documents" relating to "crimes" which
he had reported to the DOJ. Plaintiff states that in his most recent request for production
of documents, which was filed with the "Office of Information Policy, DOJ 2016," plaintiff
provided the DOJ with:
the "exact verbiage" contained within DOJ's emails and letters, which
illustrate without any ambiguity that individuals within the United States,
South America, and the Middle East where at least one of those individuals
was designated by the DOJ as an associate of the AL-QAEDA terrorist
organization, and that the same individual was also associated with the
murder of a jurors father in the US Virgin Islands, as stated by the "DOJ."
Another of the more than seven conspirators, (from the Middle East) was in
fact investigated by the United Nations to determine if that individual was
an actor in the assassination of the Prime Minister of Lebanon Rafik
Harrarri. 1
(emphasis in original). According to plaintiff, "[a]ll documents" confirming that "[t]hese
individuals engaged in a money laundering scheme, which involved the paying off of bank
officials at Banco Santander Bank in Brazil, where US Citizens were defrauded within the
scheme," have been "repeatedly withheld from the courts." Plaintiff alleges that these
"individuals were not apprehends, even though DOJ classified the documents as j(2)
FOIA documents, which indicates that criminals 'should have been' apprehended."
Plaintiff claims that plaintiff "controls all of the FOIA requests made as previously stated,
The facts Plaintiff stated to the DOJ were crystal clear, pointing out dates, times, and
individuals names." Plaintiff also alleges that "[t]hese individuals" have contacted one of
his family members, and, "[d]ue to the fact that these individuals . . . were not
apprehended," plaintiff has suffered "emotional distress" and "psychological damage."
Additionally, plaintiff alleges that he was placed into "'solitary confinement' (cell 302),
when he in fact would not cooperate with the destruction of certain records." Plaintiff
asserts that being placed in "'solitary confinement"' violated his rights under the Eighth
Amendment to the United States Constitution.
On February 5, 2018, plaintiff filed his complaint in the above-captioned case in
this court. In his complaint, plaintiff contends that "[t]he 'Tucker Act' provides the proper
vehicle for Plaintiff. See 28 U.S.C. 1491, 1346(a)(2)." Plaintiff argues that his "claims are
cognizable to render the United States liable for damages under the Tucker Act," and he
seeks monetary damages in an unspecified amount as compensatory and punitive
damages. Also on February 5, 2018, plaintiff filed a document titled "PERMISSION TO
PROCEED IN FORMA PAUPERIS," as plaintiff claims to have "no other source of income
other than social security." The court notes that plaintiff has not submitted a completed
copy of the United States Court of Federal Claims' Application to Proceed !n Forma
Pauperis, and simply makes a statement in the document he titles "PERMISSION TO
1 Plaintiff's capitalization, choice of words, spelling errors, grammatical errors, and
fragments of sentences, which appear throughout plaintiff's complaint, have been
included in this opinion when quoted unchanged.
2
PROCEED IN FORMA PAUPERIS" that plaintiff is "requesting permission to proceed in
forma pauperis in the attached action."
On March 16, 2018, plaintiff filed a document titled "PERMISSION TO AMEND,"
wherein plaintiff requests "permission to amend Plaintiff's initial filing," which was
submitted to the court on February 5, 2018, "with the following facts, which the court will
find clear and convincing." Plaintiff alleges that "[i]n January of 2012, and again in
September of 2013 the United States preferred a series unsworn declarations pursuant
to Title 28 U.S.C. 1746, illustrating that Plaintiff's life could be endangered, or at the very
least face physical injury due to his role as a government informant." Plaintiff further
alleges that:
Facts also illustrate that the United States altered documents, and ordered
the destruction of other document. These facts were corroborated with inter-
agency memos. Plaintiff requested on at least seven different occasions to
provide a "polygraph test" which would be in compliance with policy, those
requests were ironically denied.
On March 23, 2018, the court issued an Order denying plaintiff's March 16, 2018
"PERMISSION TO AMEND" his complaint, because plaintiff had not included a proposed
amended complaint with his motion to amend the complaint. The court also stated in the
March 23, 2018 Order that only grounds which are within the court's jurisdiction are
appropriate for an amended complaint, and plaintiff should consider, prior to filing a new
motion to amend the complaint, whether plaintiff's claims fall within the jurisdiction of the
court.
On March 23, 2018, defendant filed "DEFENDANT'S MOTION TO DISMISS"
plaintiff's complaint pursuant to Rule 12(b)(1) (2017) of the Rules of the United States
Court of Federal Claims (RCFC), arguing that this court lacks subject matter jurisdiction
over plaintiff's claims. (capitalization in original). Defendant asserts that plaintiff's claim
seeking monetary and punitive damages resulting from "emotional distress" and
"psychological damage" should be dismissed because this court lacks jurisdiction to
adjudicate tort claims. Defendant also argues that this court does not have jurisdiction to
entertain plaintiff's claim "that he is or was being kept in solitary confinement in violation
of the Eighth Amendment to the United States Constitution" because the Eighth
Amendment is not a money-mandating source of law. Further, defendant contends that
this court lacks jurisdiction over plaintiff's claims arising under the FOIA. Finally,
defendant argues that 28 U.S.C. § 1346(a)(2) (2012), which plaintiff cites in his complaint
as a basis for jurisdiction in this court, "only applies to district courts," and does not apply
to the United States Court of Federal Claims.
On April 3, 2018, plaintiff submitted a filing to this court titled "AMEND PLEADINGS
PURSUANT TO RULE 15(A)(1), F.R.CV.P." Additionally, plaintiff submitted a copy of his
February 5, 2018 complaint and a copy of his February 5, 2018 "PERMISSION TO
PROCEED IN FORMA PAUPERIS" as attachments to his April 3, 2018 submission. The
Clerk's Office did not file plaintiff's submissions because plaintiff's submission did not
3
comply with the RCFC 5.5(d)(2) (2017), under which a party is required to file an original
and two copies of any filing; RCFC 5.5(g) (2017), which requires that the name of the
judge assigned to the case be included below the docket number in all filings; RCFC 5.3
(2017), which requires that a proof of service, showing the day and manner of service,
the person or entity served, and the method of service employed be attached to the end
of any original document and to any copies of that document, by the party executing a
certificate of service; RCFC 11 (2017), which requires that every pleading, written motion,
and other paper must be signed by a party personally if the party is unrepresented.
On April 10, 2018, plaintiff filed a document titled "OBJECTION, RE: MOTION TO
DISMISS." In his April 10, 2018 objection, plaintiff alleges that defendant fails to mention
"the fact that Federal codes were violated pursuant to the Federal Rules of Criminal
Procedure under Titles 18 Sections 1505, 1513 and various other criminal statutes," in
order to protect "individuals employed by defendant" from any "punishment or freedom
from the injurious consequences of this action." Plaintiff claims in his April 10, 2018
objection that he was "'recruited"' by defendant
to report crimes involving (a) money laundering scheme, (b) defrauding U.S.
Citizens, (c) paying off of bank officials to subvert international banking
laws, (d) unlawful entry of illigal immigrants to the U.S. etc., and when
Plaintiff became astounded of Defendant's lack to take action, Plaintiff was
placed in solitary confinement and told; "if you do not allow [us] to destroy
these documents, then [you] will not leave solitary confinement."
(alterations in original). Plaintiff further states in his "OBJECTION, RE: MOTION TO
DISMISS" that "the infliction of emotional distress is real, and that all the statutes under
the sun do not erase this emotional distress, because Defendant United States did not
want to live up to it's contract with Plaintiff." 2 Plaintiff requests that this court deny
"DEFENDANT'S MOTION TO DISMISS" for lack of subject matter jurisdiction because
"[t]his Court clearly has jurisdiction which is authorized by Constitution, and statute."
On April 16, 2018, defendant filed a "DEFENDANT'S REPLY IN SUPPORT OF
ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO MOTION TO
AMEND COMPLAINT," in which defendant contends that neither plaintiff's complaint nor
his objection to defendant's motion to dismiss establish any basis for jurisdiction in this
court. (capitalization in original). Defendant notes that plaintiff, in his April 10, 2018
objection, alleges "that the 'United States did not want to live up to it[s] contract with
Plaintiff"' and argues that "this allegation is not in the complaint and does not identify any
contract. Because this [the contract allegation] was not pied and is too vague to be well-
pied, it should be disregarded." (first alteration in original). Defendant states that plaintiff's
"new motion to amend shows no proposed amended complaint and no basis for
2 In his complaint, plaintiff did not allege that he had a contract with the United States.
The word "contract" is mentioned for the first time in plaintiff's April 10, 2018
"OBJECTION, RE: MOTION TO DISMISS."
4
jurisdiction, either." 3 Defendant further states that plaintiff's "complaint alleges only torts,
and violations of the Eighth Amendment and FOIA," and that "none of these offers any
basis for jurisdiction" in the United States Court of Federal Claims. In addition, defendant
asserts that plaintiff's "new motion is essentially the same as his March 16, 2018 motion
to amend," and that plaintiff's "new motion" does not include "any proposed amended
complaint" and alleges only "criminal or tortious misconduct over which the Court has no
jurisdiction."
On May 4, 2018, the court received from plaintiff a document titled "REQUEST
FOR THIRTY DAY DELAY," for "returning the documents filed in accordance with the
rules of this Court," and that "he be permitted to refile by the 28th day of May 2016." On
May 10, 2018, the court issued an Order regarding plaintiff's "REQUEST FOR THIRTY
DAY DELAY," stating that "[i]f plaintiff intends to submit additional documents to the court,
plaintiff shall file the additional documents in accordance with the RCFC on or before
Thursday, May 24, 2018." (emphasis omitted).
On June 7, 2018, defendant filed a "DEFENDANT'S NOTICE OF DOCUMENTS
RECEIVED FROM PLAINTIFF," wherein defendant notified the court that, "on or around
May 31, 2018," defendant had received documents from plaintiff which "are not yet
reflected on this case's docket." (capitalization in original). In its notice, defendant stated
that it "does not intend to file with the Court any response to these documents." Attached
to defendant's June 7, 2018 notice were the filings defendant had received from plaintiff,
which included a document titled, "MOTION IN RESPONSE TO THE COURT'S ORDER,"
a copy of plaintiff's February 5, 2018 complaint, 4 a document titled "AMEND PLEADINGS
PURSUANT TO RULE 15(a)(1), F.R.CV.P," and a document titled "SUPPLEMENT,
PLEADING SPECIAL MATTERS RULE 9(b)."
In plaintiff's "MOTION IN RESPONSE TO THE COURT'S ORDER," which was
attached to defendant's June 7, 2018 notice, plaintiff states that plaintiff was "responding
to the Court's Order dated May 10, 2018 stipulating that Plaintiff must file the proper
number of copies pursuant to Rule 5.5(d)(2)(2017)(RCFC), and make proper service of
all documents (including request to proceed IFP), on Defendant United States."
3 The "new motion to amend" referred to by the defendant appears to be plaintiff's April
3, 2018 submission titled "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1},
F.R.CV.P."
4 The copy of plaintiff's February 5, 2018 complaint attached to the "MOTION IN
RESPONSE TO THE COURT ORDER" omitted the last sentence in plaintiff's February
5, 2018 complaint, which provided that "[p]laintiff's claims are cognizable to render the
United States liable for damages under the Tucker Act, and as a result, Plaintiff seeks
both compensatory, and punitive damages in this federal court," but otherwise was the
same as the previously filed complaint.
5
Additionally, in plaintiff's "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1),
F.R.CV.P,"5 which was attached to defendant's June 7, 2018 notice, plaintiff states:
In 2012, and again in 2013 Special Assistant United States Attorney
Michelle Seo located at the U.S. Department of Justice Civil Division, P O
Box 480 Ben Franklin Station Washington, D.C. 20044, contacted Ms.
Christine Greene, a Department of Justice employee in Coleman, Florida
requesting two separate unsworn declarations (signed by Mrs. Greene on
both occasions), which articulated that there were illegal activities which
occurred, and that it was of extreme importance that Plaintiff Brestle be
protected. Here, Plaintiff believes that the office of the U.S. Attorney and
Ms. Seo are both located within this Court's jurisdiction, and were acutely
aware of the facts stated in Ms. Greene's unsworn declarations.
In plaintiff's "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1), F.R.CV.P," plaintiff
alleges that "Ms. Green's Vaughn Index on Plaintiff (forwarded to Special Assistant U.S.
Attorney Seo, in Washington D.C.), which clearly spoke to Plaintiff's life being
endangered." Plaintiff also alleges that he "clearly articulated in the attached initial
complaint that individuals involved in the conspiracy against the United States, were (a)
not apprehended, and (b) were individuals who were known to have the ability to cause
physical harm or death to Plaintiff." Plaintiff states that he has "set forth facts supported
with conclusive evidence" in his motion to "AMEND PLEADINGS PURSUANT TO RULE
15(A)(1), F.R.CV.P," which, according to plaintiff, bring his "claims within the jurisdiction
of this honorable court."
In plaintiff's "SUPPLEMENT, PLEADING SPECIAL MATTERS RULE 9(B),"
plaintiff alleges that "certain individuals who committed crimes against the United States
of America contacted a family member, seeking $400,000.00 in cash, known by
Defendant. ('Tell them the money is coming from your daughter')." Plaintiff also alleges
that "[o]n several occasions Special Assistant U.S. Attorney Seo, Butler, and several other
SAUSA possessed knowledge that Plaintiff's daughter was contacted, and that there
existed other documents illustrating the intention or desire to do evil by the individuals not
apprehended." Additionally, plaintiff states:
On several documents located within the Department of Justice, P.O. Box
480 Ben Franklin Station, Washington, D.C .. 20044, and other sub agencies
located within the jurisdiction of this court, one document in particular states;
"two exemptions (b6) and (b)(7)(c) were used on the documents to protect
the name and phone number of a staff member and to protect Brestle." The
documents went on to say, "Not only could these parties face reputational
harm, but they could also face acts of reprisal." SIC. The document went on
to say, "illegal activities occurred."
5 As discussed above, plaintiff's April 3, 2018, submission titled, "AMEND PLEADINGS
PURSUANT TO RULE 15(A)(1), F.R.CV.P" was not originally filed and was returned to
plaintiff because the submission did not comply with the rules of this court.
6
Plaintiff argues that plaintiff "is not before this Court seeking justice forthe coverup,
or the violations of the Federal Criminal Codes, and Statutes by Defendant, Plaintiff is
here seeking an award of both punitive and compensatory damages for the intentional
neglect on the part of Defendant, by placing both Plaintiff and his family at risk of
'reprisal'," under an unspecified "Rule 9(b)," which, according to plaintiff, "states the
following; 'Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be alleged generally."' In
addition, plaintiff attached to his filing titled "SUPPLEMENT, PLEADING SPECIAL
MATTERS RULE 9(8)" redacted notices of electronic filing from a case filed in the United
States District Court for the Southern District of Georgia. Plaintiff, without explaining how
the attached redacted notices of electronic filing are relevant to plaintiff's claims in the
above-captioned case, asserts that "[t]he redactions made on the attached exhibits
illustrate that Plaintiff's claims are not speculation or conjecture."
Subsequently, on June 11, 2018, plaintiff attempted to file with the court the same
four filings attached to defendant's June 7, 2018 notice, as well as a copy of plaintiff's
February 5, 2018 filing titled "PERMISSION TO PROCEED IN FORMA PAUPERIS." On
June 12, 2018, the court issued an order filling defendant's June 7, 2018 "DEFENDANT'S
NOTICE OF DOCUMENTS RECEIVED FROM PLAINTIFF" and plaintiff's fillings that
were attached to defendant's June 7, 2018 notice. (capitalization in original). The court
instructed the Clerk's Office to return plaintiff's June 11, 2018 submissions because the
submissions did not comply with RCFC 5.3, which requires proof of service, RCFC 11,
and RCFC 24(c) (2017), which requires that a motion to intervene be served on parties
in accordance with RCFC 5, and because the documents were duplicative of documents
already in the record.
DISCUSSION
The court recognizes that plaintiff is proceeding prose. When determining whether
a complaint filed by pro se plaintiffs is sufficient to invoke review by a court, pro se
plaintiffs are titled to a more liberal construction of their pleadings. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a prose complaint
be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'g
denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),
reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322
(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff'd, 603 F.
App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). However, "there is no 'duty
[on the part] of the trial court ... to create a claim which [plaintiff] has not spelled out in
his [or her] pleading .... "' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (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. Cl. 249, 253 (2007). "While a prose plaintiff is held to
7
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
Hughes 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'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities
in a pro se plaintiff's 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)).
As noted above, on February 5, 2018, plaintiff filed a "PERMISSION TO
PROCEED IN FORMA PAUPERIS." In order to provide access to this court for those who
cannot pay the filing fees mandated by RCFC 77.1(c) (2017), 28 U.S.C. § 1915 (2012)
permits a court to allow a plaintiff to file a complaint without payment of fees or security,
under specific circumstances. Section 1915(a)(1) states that:
Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner[6] possesses [and] that the person is unable to pay
6 A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding in
forma pauperis applications by non-prisoner litigants in federal courts, and have
concluded that Congress did not intend for non-prisoners to be barred from being able to
proceed in forma pauperis in federal court. See,~. Haynes v. Scott, 116 F.3d 137, 139
(5th Cir. 1997) (noting that "[!]here is no indication in the statute or the legislative history
of[§ 1915] that Congress meant to curb Un forma pauperis] suits by nonprisoners."); Floyd
v. United States Postal Serv., 105 F.3d 274, 275-76 (6th Cir.), reh'g denied (6th Cir.1997);
Schagene v. United States, 37 Fed. Cl. 661, 663 (1997), appeal dismissed, 152 F.3d 947(Fed. Cir. 1998); see also In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th
Cir. 1997) (discussing how to administer in forma pauperis rights to a non-prisoner,
thereby acknowledging the rights of non-prisoners to apply for in forma pauperis status);
Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996) (using "sic" following the word "prisoner"
in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use of that word was too narrow);
Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a) applies
to all persons applying for Un forma pauperis] status, and not just to prisoners."); Manning
v. United States, 123 Fed. Cl. 679, 682-83 (2015) ("The Federal Circuit has in effect
endorsed this construction of Section 1915 in a non-precedential decision. See Jackson
v. United States, 612 Fed. Appx. 997 at *2 (Fed. Cir. May 18, 2015) (affirming a Court of
Federal Claims dismissal of a non-prisoner's complaint for frivolousness under
Subparagraph 1915(e)(2)(B))."); Smith v. United States, 113 Fed. Cl. 241, 243 (2013);
8
such fees or give security therefor. Such affidavit shall state the nature of
the action, defense or appeal and affiant's belief that the person is entitled
to redress.
28 U.S.C. § 1915(a)(1 ). Therefore, the statute at 28 U.S.C. § 1915(a)(1) requires a person
to submit an affidavit with a statement of all the applicant's assets, and that the affidavit
state the nature of the action, defense or appeal and affiant's belief that the person is
titled to redress. See id.When enacting the in forma pauperis statute, 28 U.S.C. § 1915, Congress
recognized that "'a litigant whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits."' Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)); see also McCullough v. United States, 76
Fed. Cl. 1, 3 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed.
Cir.), cert. denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e)
in the in forma pauperis statute, which allows courts to dismiss lawsuits determined to be
"frivolous or malicious." 28 U.S.C. § 1915(e). The United States Supreme Court has
found that "a court may dismiss a claim as factually frivolous only if the
facts alleged are 'clearly baseless' ... a category encompassing allegations that are
'fanciful' ... 'fantastic' ... and 'delusional ... .'" Denton v. Hernandez, 504 U.S. at 32-
33 (internal citations omitted); see also Floyd v. United States, 125 Fed. Cl. 183, 191
(2016); Jones v. United States, 122 Fed. Cl. 543, 545 (2015); McCullough v. United
States, 76 Fed. Cl. At 3; Schagene v. United States, 37 Fed. Cl. at 663. Courts, however,
should exercise caution in dismissing a case under section 1915(e) because a claim that
the court perceives as unlikely to be successful is not necessarily frivolous. See Denton
v. Hernandez, 504 U.S. at 33. As stated by the United States Supreme Court, "a finding
of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are judicially noticeable facts
available to contradict them." &
The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is "unable
to pay such fees or give security therefor." Determination of what constitutes "unable to
pay" or unable to "give security therefor," and therefore, whether to allow a plaintiff to
proceed in forma pauperis is left to the discretion of the presiding judge, based on the
information submitted by the plaintiff or plaintiffs. See,~. Rowland v. Cal. Men's Colony,
Powell v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that a "fair reading of
the entire section [28 U.S.C. § 1915(a)(1 )] is that it is not limited to prisoner suits.'').
Moreover, 28 U.S.C. § 1915(a)(1) refers to both "person" and "prisoner." The word
"person" is used three times in the subsection, while the word "prisoner" is used only
once. This court, therefore, finds that the single use of the word "prisoner" in the language
of 28 U.S.C. § 1915(a)(1) was not intended to eliminate a non-prisoner from proceeding
in federal court in forma pauperis, provided that the civil litigant can demonstrate
appropriate need. Any other interpretation is inconsistent with the statutory scheme of 28
U.S.C. § 1915.
9
Unit II Men's Advisory Council, 506 U.S. 194, 217-18 (1993); Roberson v. United States,
115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App'x 966 (Fed. Cir. 2014); Fuentes v.
United States, 100 Fed. Cl. 85, 92 (2011). This court and its predecessors were
established to make available a user friendly forum in which plaintiffs can submit their
legitimate claims against the sovereign, limited only by the legislative decision to waive
sovereign immunity as to the types of claims allowed. In fact, prominently posted at the
entrance to this courthouse are the words of Abraham Lincoln: "It is as much the duty of
government to render prompt justice against itself, in favor of citizens, as it is to administer
the same, between private individuals."
Interpreting an earlier version of the in forma pauperis statute, the United States
Supreme Court offered the following guidance:
We cannot agree with the court below that one must be absolutely destitute
to enjoy the benefit of the statute. We think an affidavit is sufficient which
states that one cannot because of his poverty "pay or give security for the
costs ... and still be able to provide" himself and dependents "with the
necessities of life." To say that no persons are titled to the statute's benefits
until they have sworn to contribute to payment of costs, the last dollar they
have or can get, and thus make themselves and their dependents wholly
destitute, would be to construe the statute in a way that would throw its
beneficiaries into the category of public charges. The public would not be
profited if relieved of paying costs of a particular litigation only to have
imposed on it the expense of supporting the person thereby made an object
of public support. Nor does the result seem more desirable if the effect of
this statutory interpretation is to force a litigant to abandon what may be a
meritorious claim in order to spare himself complete destitution. We think a
construction of the statute achieving such consequences is an inadmissible
one.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (omission in
original). In Fiebelkorn v. United States, for example, a Judge of the United States Court
of Federal Claims indicated that:
[T]he threshold for a motion to proceed in forma pauperis is not high: The
statute requires that the applicant be 'unable to pay such fees.' 28 U.S.C.
§ 1915(a)(1 ). To be 'unable to pay such fees' means that paying such fees
would constitute a serious hardship on the plaintiff, not that such payment
would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007); see also McDermott v. United
States, 130 Fed. Cl. 412, 414 (2017) (quoting Fiebelkorn v. United States, 77 Fed. Cl. at
62); Fuentes v. United States, 100 Fed. Cl. at 92; Brown v. United States, 76 Fed. Cl.
762, 763 (2007); Hayes v. United States, 71 Fed. Cl. 366, 369 (2006).
10
In his "PEMISSION TO PROCEED IN FORMA PAUPERIS," pro se plaintiff Gary
Brestle indicates that he receives an amount of $1270.00 as monthly income from "social
security," out of which he makes payments towards "car payment, insurance, additional
living expenses." Plaintiff, however, has failed to provide any other details regarding his
expenses or income. As noted above, plaintiff has not completed and submitted a copy
of the United States Court of Federal Claims' Application to Proceed !!:! Forma Pauperis
form. Without more information on plaintiff's economic status, including knowing the
answers to the remaining questions contained in the court's Application to Proceed In
Forma Pauperis form, such as whether plaintiff is employed, or has within the past twelve
months received money in the form of rent, investments, gifts, or other sources, it is
difficult to make a determination regarding plaintiff's qualifications to proceed in forma
pauperis. Even if plaintiff was qualified to proceed in forma pauperis, however, his
application is moot because, as discussed below, his complaint is dismissed for lack of
subject matter jurisdiction pursuant to RCFC 12(b)(1).
"Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte." Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)). The Tucker Act,
28 U.S.C. § 1491 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. § 1491(a)(1) (2012). 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. Navajo Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Alvarado
Hosp .. LLC v. Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United
States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2007),
cert. denied, 552 U.S. 1142 (2008); Palmerv. 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 .. Inc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[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, Inc. v. United States, the United States Court of Appeals for the
11
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."
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. 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." !<:l; see also [United States v.] Testan, 424 U.S.
[392,] 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 referred to as claims brought under a "money-mandating"
statute.
Ont. Power Generation. Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Twp. of Saddle Brook v. 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.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 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. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts)."). '"If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv .. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
12
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 Tucker Act."); Price v. United States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United
States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint." (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff's claim, independent of any
defense that may be interposed." Holley 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'g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). 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(a)(1), (2) (2017); Fed. R. Civ. P. 8(a)(1), (2)
(2018); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555-57, 570). To properly state a claim for relief, "[c]onclusory
allegations of law and unwarranted inferences of fact do not suffice to support a claim."
Bradley 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 §
1286 (3d ed. 2004)); Briscoe v. La Hue, 663 F.2d 713, 723 (7th Cir. 1981) ("[C]onclusory
allegations unsupported by any factual assertions will not withstand a motion to dismiss."),
aff'd, 460 U.S. 325 (1983). "A plaintiff's 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.
Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed. Cir.
2014). As stated in Ashcroft v. Igbal, "[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. Igbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 555).
In the above-captioned case, plaintiff seeks compensatory and punitive damages
resulting from "emotional distress" and "psychological damage" allegedly caused by the
defendant's alleged failure to apprehend certain "individuals." Plaintiff asserts that he
served as an informant to the DOJ, wherein he reported "crimes" and provided information
13
about those "individuals" who were not apprehended. Additionally, plaintiff alleges that
the DOJ has "intentionally and willfully" concealed the information provided by plaintiff,
and, as a result of the DOJ's alleged concealment, plaintiff has suffered "emotional
distress" and "psychological damage." In "DEFENDANT'S MOTION TO DISMISS,"
defendant argues that this court lacks jurisdiction over plaintiff's claims for "emotional
distress" and "psychological damage." (capitalization in original). According to defendant:
Mr. Brestle's complaint seeks monetary and punitive damages resulting
from the "emotional distress and psychological damage" experienced as a
result of the Government's alleged failure to apprehend certain individuals.
However, this Court lacks jurisdiction to entertain tort claims, such as a
claim for the intentional infliction of emotional distress. 28 U.S.C.
§ 1491(a)(1); see also Keene Corp. v. United States, 508 U.S. 200, 214
(1993). Accordingly this claim should be dismissed.
(internal references omitted).
A claim involving intentional infliction of emotional distress is a tort claim. This
court, however, lacks jurisdiction over tort claims, including claims for intentional infliction
of emotional distress. See 28 U.S.C. § 1491(a)(1) ("The United States Court of Federal
Claims shall have jurisdiction ... in cases not sounding in tort."); see also Keene Corp.
v. United States, 508 U.S. at 214 ("[T]ort cases are outside the jurisdiction of the Court of
Federal Claims today."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d at 1343("The plain language of the Tucker Act excludes from the Court of Federal Claims
jurisdiction claims sounding in tort." (citing 28 U.S.C. § 1491(a)(1))); Trafny v. United
States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The court was also correct to hold that it
lacks jurisdiction over tort claims."); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.
1997) ("The Court of Federal Claims is a court of limited jurisdiction. It lacks jurisdiction
over tort actions against the United States."); Golden Pac. Bancorp v. United States, 15
F.3d 1066, 1070 n.8 (Fed. Cir.), reh'g denied, en bane suggestion declined (Fed. Cir.),
cert. denied, 513 U.S. 961 (1994); Rohland v. United States, 136 Fed. Cl. 55, 65 (2018)
("[T]his court lacks jurisdiction to entertain claims sounding in tort."); Kant v. United States,
123 Fed. Cl. 614, 616 (2015); Fullard v. United States, 77 Fed. Cl. 226, 230 (2007) ("This
court lacks jurisdiction over plaintiff's conspiracy claim because the Tucker Act specifically
states that the Court of Federal Claims does not have jurisdiction over claims 'sounding
in tort."'); Agee v. United States, 72 Fed. Cl. 284, 290 (2006); Zhengxing v. United States,
71 Fed. Cl. 732, 739, aff'd, 204 F. App'x 885 (Fed. Cir.), reh'g denied (Fed. Cir. 2006);
Gates v. United States, 33 Fed. Cl. 9, 12 (1995) ("With respect to claims for emotional
distress, the court has long stated that it does not have jurisdiction to hear such claims
because they sound in tort."). In contrast, "district courts have exclusive jurisdiction to
consider tort claims against the United States that fall within the purview of the FTCA
[Federal Tort Claims Act]." Bobka v. United States, 133 Fed. Cl. 405, 412 (2017); see
also Rohland v. United States, 136 Fed. Cl. at 65 ("Under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b)(1), 2671-2680, jurisdiction over tort claims against the federal
government lies exclusively in federal district courts." (citing U.S. Marine. Inc. v. United
States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013))). Because plaintiff's allegations of
14
infliction "emotional distress" causing "psychological damage" sound in tort, those claims
must dismissed for lack of jurisdiction.
Additionally, plaintiff alleges that his rights under the Eighth Amendment to the
United States Constitution were violated. Plaintiff alleges, without much detail, that he
was wrongfully placed into '"solitary confinement"' when he would "not cooperate with the
destruction of certain records," which violated his rights under the Eighth Amendment to
the United States Constitution. Defendant responds:
Mr. Brestle also makes a vague claim that he is or was being kept in solitary
confinement in violation of the Eighth Amendment, this Court does not have
jurisdiction to entertain that claim either because the Eighth Amendment is
not money-mandating. Trafny v. United States, 503 F.3d 1339, 1340 (Fed.
Cir. 2007).
Plaintiff's alleged Eighth Amendment violation also fails because this court does
not have jurisdiction over claims brought under the Eighth Amendment to the United
States Constitution. See Trafny v. United States, 503 F.3d at 1340 ("The Court of Federal
Claims does not have jurisdiction over claims arising under the Eighth Amendment, as
the Eighth Amendment 'is not a money-mandating provision."' (citations omitted));
Mitchell v. United States, 136 Fed. Cl. 286, 289 (2018) (concluding that the court lacked
jurisdiction over Eighth Amendment claims (citing Trafny v. United States, 503 F.3d at
1340)); Godfrey v. United States, 131 Fed. Cl. 111, 120 (2017) ("But, the Fourth, Sixth
and Eighth Amendments, and the Due Process Clauses of the Fifth and Fourteenth
Amendments are not money mandating." (citing Trafny v. United States, 503 F.3d at
1340)); Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010) ("Plaintiff avers that his
rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Fourteenth, and
Fifteenth Amendments were violated. None of these claims allege a violation for which
money damages are mandated."); Tasby v. United States, 91 Fed. Cl. 344, 346 (2010)
("[T]he Eighth Amendment prohibitions of excessive bail or fines, as well as cruel and
unusual punishment, are not money-mandating." (citation omitted)).
Additionally, plaintiff seeks relief regarding his FOIA requests and alleges that on
several different occasions, plaintiff filed requests seeking "documents" relating to
"crimes" which plaintiff had reported to the DOJ as an informant. In "DEFENDANT'S
MOTION TO DISMISS," defendant asserts that, "[t]o the extent Mr. Brestle seeks relief
under FOIA, this Court lacks jurisdiction to entertain FOIA claims. See Bernard v. United
States, 59 Fed. Cl. 497, 503, aff'd, 98 Fed. Appx. 860 (Fed. Cir. 2004)." (internal
references omitted) (capitalization in original). In "DEFENDANT'S REPLY IN SUPPORT
OF ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO MOTION TO
AMEND COMPLAINT," defendant contends that plaintiff has not provided any
explanation as to why this court has jurisdiction over plaintiff's FOIA claim. (capitalization
in original).
15
The statute regarding requests under FOIA, 5 U.S.C. § 552 (2012), provides:
On complaint, the district court of the United States in the district in which
the complainant resides, or has his principal place of business, or in which
the agency records are situated, or in the District of Columbia, has
jurisdiction to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld from the
complainant.
See 5 U.S.C. § 552(a)(4)(B). As a judge on this court has explained, plaintiff's claim under
the FOIA fails because "[t]he FOIA lacks any money-mandating provisions. Furthermore,
the FOIA expressly provides for jurisdiction in 'the district court of the United States ... .'
[T]he Court of Federal Claims is not a district court. Thus, the court lacks jurisdiction to
consider the merits of any FOIA claim." McNeil v. United States, 78 Fed. Cl. 211, 225
(2007) (citations omitted); see also Treece v. United States, 96 Fed. Cl. 226, 232 (2010);
Bernard v. United States, 59 Fed. Cl. 497, 503 (2004). Therefore, plaintiff's claim under
the FOIA also is dismissed.
In his April 10, 2018 objection to "DEFENDANT'S MOTION TO DISMISS," plaintiff
also argues that this court "clearly has jurisdiction which is authorized by Constitution"
and cites "the Federal Rules of Criminal Procedure under Titles 18 Sections 1505, 1513
and various other criminal statutes." (capitalization in original). In "DEFENDANT'S REPLY
IN SUPPORT OF ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO
MOTION TO AMEND COMPLAINT," filed April 16, 2018, defendant argues that plaintiff
"vaguely" alleges "criminal or tortious misconduct over which the Court has no
jurisdiction." (capitalization in original).
Rule 1(a)(1) of the Federal Rules of Criminal Procedure does not indicate that the
Federal Rules of Criminal Procedure apply to the United States Court of Federal Claims,
but, rather, states that the Federal Rules of Criminal Procedure "govern the procedure in
all criminal proceedings in the United States district courts, the United States court of
appeals, and the Supreme Court of the United States." See Fed. R. Crim. P. 1(a)(1)
(2018). Moreover, the jurisdiction of the United States Court of Federal Claims does not
include jurisdiction over criminal causes of action. See Joshua v. United States, 17 F.3d
378, 379 (Fed. Cir. 1994); see also Smith v. United States, 134 Fed. Cl. 689, 692 (2017)
("[T]he Court of Federal Claims lacks jurisdiction to entertain criminal matters, such as
claims arising under the federal criminal code or claims regarding the conduct of criminal
proceedings." (citing Joshua v. United States, 17 F.3d at 379-80)); Khalil v. United States,
133 Fed. Cl. 390, 392 (2017) ("This court, however, 'has no jurisdiction to adjudicate any
claims whatsoever under the federal criminal code."' (quoting Joshua v. United States, 17
F.3d at 379)); Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (holding that "this
court does not have jurisdiction over [plaintiff's] claims because the court may review
neither criminal matters, nor the 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); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (stating that the United
States Court of Federal Claims lacked jurisdiction over claims arising from the violation
16
of a criminal statute); Fullard v. United States, 78 Fed. Cl. 294, 301 (2007) ("Plaintiff
alleges criminal fraud, a subject matter over which this court lacks jurisdiction." (citing 28
U.S.C. § 1491 )); McCullough v. United States, 76 Fed. Cl. 1, 4 (2006) (finding that the
court lacked jurisdiction to consider plaintiff's criminal claims), appeal dismissed, 236 F.
App'x 615 (Fed. Cir.), reh'g denied (Fed. Cir.), cert. denied 552 U.S. 1050 (2007) .7 Any
claim asserted by plaintiff asserting a claim based on criminal activity or implicating the
Federal Rules of Criminal Procedure, therefore, also must be dismissed.
Finally, in plaintiff's April 10, 2018 "OBJECTION, RE: MOTION TO DISMISS,"
plaintiff for the first time alleges the existence of a contract, stating that defendant "did not
want to live up to it's contract with Plaintiff." Not only is this the first specific reference by
plaintiff to a contract, but plaintiff also has offered no evidence indicating that he entered
into a contract with the United States. In order to properly allege a contract, the complaint
must allege the elements of a contract. "[A]ny agreement can be a contract within the
meaning of the Tucker Act, provided that it meets the requirements for a contract with the
Government, specifically: mutual intent to contract including an offer and acceptance,
consideration, and a Government representative who had actual authority to bind the
Government. " Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997);
see also Russell Corp. v. United States, 537 F.2d 474, 482, 210 Ct. Cl. 596, 608 (1976)
("For there to be an express contract, the parties must have intended to be bound and
must have expressed their intention in a manner capable of understanding. A definite
offer and an unconditional acceptance must be established ."). In the above-captioned
case, plaintiff's complaint has not alleged any of the basic elements of a contract,
including: offer; acceptance; consideration ; or that a government representative with
actual authority signed a contract with plaintiff. Nor has plaintiff even alleged when the
contract might have been executed, or what were the terms of the alleged contract. Even
in his April 10, 2018 objection, which, for the first time, uses the word contract, plaintiff
does not allege the elements of a contract. The court, therefore, does not consider
plaintiff's bald, contract allegation and any such claim must be dismissed at this time.
CONCLUSION
Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED
for lack of jurisdiction. The Clerk's Office shall enter JUDGMENT consistent with this
opinion.
IT IS SO ORDERED.
MARIAN BLANK HORN
Judge
7
The court notes, that recently the United States Court of Appeals for the Federal Circuit,
in an unpublished opinion, restated that "[t]he Court of Federal Claims likewise lacks
jurisdiction to adjudicate claims brought under federal or state criminal statutes." Spitters
v. United States, 710 F. App'x 896 , 897 (Fed. Cir. 2018) (citing Joshua v. United States,
17 F.3d at 379).
17