Upshur v. United States

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No. 16-537C
(Filed: Juty 29,2016 | Not For Publication) JUL 2I 20t6
U.S. COURTOF
FEDERAL CLAIMS
ALBERT W. UPSHUR, Keywords: Pro Se Complaint; Subject
YOLANDA D. THOMPSON, and Matter Jurisdiction; Motion to Dismiss;
BENNIE SHEPPARD, Act of State Doctrine.
Plaintiffs,
THE UNITED STATES OF AMERICA,
Defendant.
Albert W. Upshur, Yolanda D. Thompson, Bennie Sheppard, Yeadon, PA, Plaintiffs, pro sa.
Erin K. Murdock-Park, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attomey General, Robert E. Kirschman,.-/r., Director, and Brian A. Mizoguchi,
Assistant Director, Commercial Litigation Branch, United States Department of Justice,
Washington, DC, for Defendant.
OPINION AND ORDER
KALPAN, Judge.
On May 2,20t6, the pro se plaintiffs in this case, Albert W. Upshur, Yolanda D.
Thompson, and Bennie Sheppard, filed a document styled "Secured Party's Mandamus to
Dismiss by Congressional Order of the Secretary of State," which the Court has construed and
accepted as a complaint. See Compl., Doc. No. l. Cunently before the Courl is the govemment's
motion to dismiss under Rule 12(b)(l) and 12(b)(6) ofthe Rules ofthe Court of Federal Claims
(RCFC). Def.'s Mot. to Dismiss (Def.'s Mot.), Doc. No. 7. For the reasons set forth below, the
government's motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC
12(b)(l) is GRANTED and the Plaintiffs' complaint is DISMISSED without prejudice.
BACKGROUND
Although the allegations in Plaintiffs' complaint are difficult to follow, it appears that the
lynchpin oftheir claims is that they are sovereign entities in their own right (as opposed to
citizens or residents ofthe United States), and that, as such, the "Act of State Doctrine"
precludes them from being subject to legal proceedings in the United States. See Compl. at 2-3.
It further appears that Plaintiffs are alleging that the United States violated their rights as
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sovereign entities on the basis oflegal proceedings brought against them by the commonwealth
of Pennsylvania. In particular, according to documents attached to their complaint, Plaintiffs
were found guilty ofviolating a variety of Pennsylvania state laws and sentenced to serve time
for those offenses; Plaintiffs characterize the criminal proceedings as fraudulent. See Compl. Ex.
F. Ex. J. Ex. L.
Plaintiffs also appear to be alleging breach of contract by the United States, giving rrse to
a claim for damages. See Pls.' Resp. at 2 (citing exhibits to their response entitled "contracr,
Legal Notice and Demand" and "Contract, Declaration of Independence"), Doc No. 6. Further, in
their "Motion to Continue Complaint," which the Court construed as a response to the
govemment's motion to dismiss, the Plaintiffs claim they are owed "Three Trillion United States
dollars . . . for violating our unalienable Constitutional rights." Pls.' Resp. at l.
Finally, Plaintiffs have attached to their Complaint a number of documents that thcy
previously filed with various courts in Pennsylvania, which seek, among other things: 1)
unla*ful imprisonment restitution in the amount of$300,000,000; 2) an unlimited line ofcredit
from the state bank of Pennsylvania; 3) release from prison of more than sixteen individuals
belonging to Plaintiffs' "family govemment;" 4) recognition ofPlaintiffs as a sovereign
govemment; 5) retum oftitles and deeds to more than thirty properties alleged to have been
fraudulently stolen; and 6) prosecution of state-employed individuals involved in the alleged
violation of the Plaintiffs' constitutional rights. Compl. App. Ex. A2*AB at 57J0.
The government has moved to dismiss Plaintiffs' complaint pursuant to RCFC l2(bX1),
for lack ofjurisdiction. Def.'s Mot. at l. In the altemative, it moves to dismiss the complaint
pursuant to RCFC 1 2(bX6), for failure to state a claim upon which relief may be granted. Id.
DISCUSSION
In deciding a motion to dismiss for iack ofsubject matter jurisdiction, the court accepts as
true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe
plaintiff. Trusted Integration. lnc. v. United Srares, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The
court may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.
United States, 933 F.2d991,993 (Fed. Cir. 1991). It is well established that complaints that are
filed by pro se plaintiffs are held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs must
persuade the Court that jurisdictional requirements have been met. Bernard v. United States, 59
Fed. Cl. 497 ,499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir. 2004). In this case, Plaintiffs have
not met that burden.
The Court of Federal Claims is a court of "limited jurisdiction." Marcum LLP v. United
States, 753 F.3d 13 80, 13 82 (Fed. Cir. 2014). Its primary source ofjurisdicrion is the Tucker Act,
which empowers it to hear "any claim against the United States founded either upon the
Constitution, or any Act ofCongress or any regulation ofan 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. g 1a91(a)(l) (2012).
The Tucker Act waives the sovereign immunity of the United States to allow a suit for
money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not confer any
substantive rights on a plaintiff. United States v. Testan,424 U.5.392,398 (1976). Therefore, a
plaintiff seeking to invoke the court's Tucker Act jurisdiction must identiff an independent
source ofa substantive right to money damages from the United States arising out ofa contract,
statute, regulation or constitutional provision. Jan's Helicooter Serv.. Inc. v. Fed. Aviation
Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008).
Plaintiffs' allegations (described above) are insuffrcient to establish this Court's
jurisdiction under the Tucker Act. First, even assuming its applicability, the act ofstate doctrine
does not supply an independent source of law that grants the Plaintiffs a right to recover damages
from the United States. Rather, it is ajudicially created principle which "in its traditional
formulation precludes the courts of this country from inquiring into the validity of the public acts
a recognized foreign sovereign power committed within its own territory." See Banco Nacional
de Cuba v. Sabbatino, 376 U.S. 398, 401, 423 (1964); see also Ffust Nat. Citv Bank v. Banco
Nacional del Cuba,406 U.S. 759,763 (1972) (quoting Underhill v. Hemandez, 168 U.S.250,
252 (1897) (under the act of state doctrine "every sovereign State is bound to respect the
independence of every other sovereign State, and the courts ofone country will not sit in
judgment on the acts of the govemment of another done within its own tenitory").
To the extent that the Plaintiffs allege that the application ofthe act ofstate doctrine
somehow shielded them from prosecution under state law, or from their obligation to comply
with any law, that claim is not one that is within this Court's jurisdiction because the act ofstate
doctrine is not a statute, regulation or constitutional provision; it is ajudicially created principle.
Further, it does not provide an independent source ofa substantive right to money damages. And
to the extent that Plaintiffs are requesting that the Court overtum convictions and release
individuals from prison, this Court does not possess jurisdiction to address matters committed to
the criminal justice system. Joshua v. United States, 17 F.3d 378,379 (Fed. Cir. 1994).'
Plaintiffs' breach of contract allegations also cannot serve as a basis for this Court's
exercise ofjurisdiction under the Tucker Act. The purported "contracts" upon which Plaintiffs
rely consist of notarized documents signed only by Plaintiffs and entitled "Contract, Legal
Notice and Demand" and "Contract, Declaration of Independence." They purport to, among
other things, disclaim Plaintiffs' obligations to pay debts or comply with the laws of the United
' While the Court does have jurisdiction to entefiain claims for compensation based on unjust
conviction and imprisonment, 28 U.S.C. $$ 1495, 2513, that jurisdiction extends only to unjust
convictions for crimes committed against the United States, and only where such convictions
have been reversed by a court on the grounds that the plaintiff was not guilty ofsuch crimes or
where a plaintiff has received a pardon grounded in his innocence. 28 U.S.C. g 2513(a). Here,
Plaintiffs were convicted of crimes against the Commonwealth of Pennsylvania, not the United
States, and they have not, in any event, produced the certificate of irmocence that is a
jurisdictional prerequisite to this Court's exercise of its jurisdiction under 28 U.S.C. 2513(b). See
Wood v. United States, 9l Fed. Cl. 569, 57'l (2009) (compliance with section 2513, including the
production ofa certificate ofinnocence, are pre-requisites to the jurisdiction ofthe Court of
Federal Claims).
States or other units of govemment and to subject the United States (and apparently all other
govemmental entities) to obligations to pay Plaintiffs specified amounts of damages for violation
of a variety of "rights" that are set forth in the documents. See Pls.' Resp. App. Exs. A{. There
is no evidence or even an allegation that these documents were ever signed or approved by any
official of the United States (much less one with the requisite authority to bind the United States
in contract). Accordingly, the documents cannot serve as a basis for this Court's exercise of
jurisdiction under the Tucker Act to adjudicate claims for money damages that are based upon an
express or implied contract with the United States. See Russell Com. v. United States , 53'7 F .2d
474,48I (Ct. Cl. 1976) (no express contract where "the contract documents that would manifest
the offer and acceptance were not executed by any representative ofthe Govemment"); see also
Trauma Serv. Crroup v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (requiring a "well-
pleaded allegation" of an express conftact "to overcome challenges to jurisdiction").
Finally, while referring in a general way to alleged violations oftheir constitutional rights
Plaintiffs have not specified the violation ofa constitutional provision which could give right to a
claim for money damages. Nor have they identified a money mandating regulation or statute that
could serve as the basis for this Courl's exercise ofjurisdiction under the Tucker Act.
Accordingly, Plaintiffs have failed to meet their burden of showing that this Court has
jurisdiction over any ofthe claims in their complaint.
CONCLUSION
On the basis of the foregoing, the govemment's motion to dismiss under RCFC 12(bxl)
is GRANTED and the case is DISMISSED without prejudice. The Clerk is directed to enter
judgment accordingly.
IT IS SO ORDERED.
A- /(/'-----
ELAINE D. KAPLAN
Judge