Howell v. United States

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No. 16-316C FILED
Fifed: August 15,2016
AUG | 5 2016
U.S. COURT OF
ROSEMARIE ELIZABETH ANNE FEDERAL CI-AIMS
HOWELL, et al.,
@99 Plaintiff; Subject Matter
Plaintiffs, Jurisdiction; Proper Plaintiffs;
Proper Defendants; Tort Claims;
Criminal Claims; Fraud;
UNITED STATES, Racketeering.
Defendant.
Rosemarie Elizabeth Anne Howell, pro se, Vancouver, Wash.
Sosun Bae, Trial Attorney, Civil Division, United States Department of Justice,
Washington, D.C., for defendant. With Sosun Bae was Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, Martin F.
Hockey, Jr., Assistant Director, Civil Division, United States Department of Justice.
OPINION
HORN. J.
FINDINGS OF FACT
Pro se plaintiff Rosemarie Elizabeth Anne Howell filed a complaint with the United
States Court of Federal Claims on behalf of herself, her spouse Brian P. Howell, "JANE
DOE(S) and JOHN DOE(S) 'bio-logical' Ex-Rel(s) HOWELL(S)," and "'The HOWELL
FAMILY-OWNED "Sovereign" CORPORATION', 'As' the Injured /'Legitimate' I Her I
i
Owner / True Beneficiary Person" on March 9, 2016.1 Construed liberally, in the
complaint, plaintiffs allege multiple claims, including fraud, racketeering, domestic
terrorism, theft, and murder-for-hire funded by a "SLUSH FUND" of "the CLINTON(S), et
a1."2 Although the complaint lists four plaintiff parties, Rosemarie Howell was the only
plaintiff to sign the complaint. The complaint, when filed, identified as the defendant:
AMERICAN INTERNATIONAL GROUP. lNC.. et al.
1 Capitalization, grammar, punctuation, emphasis, brackets, and other errors quoted in
this Opinion are as they appear in plaintiffs' submissions.
2 Plaintiffs also include language alleging misconduct by the United Parcel Service and
the United States Postal Service, although plaintiffs do not assert specific claims against
those entities.
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&CUSTOMER Fo. Tdchng or inquhes to aStS c;
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RECEIPT or cal l-8oo-222-r811
("AlG, et al."), and the community propefty comprised
thereof,
"As" the "ultimate" Holding Company / Responsible
Person / lllegal Exactor / Un-Authorized User / Un-
Justly Enriched (Quantum Meruit)
The Clerk's Office filed the complaint as it was received. In subsequent filings, plaintiffs
indicated the addition of the United States as another defendant along with AlG.
The complaint also includes allegations against a myriad of "'Co-Conspirato(s)"'
other than the United States or AlG, including Prudential Bancorp, General Dynamics,
Ford Motor Co., Pfizer, Inc., and State Farm. Although plaintiffs did not specifically identify
the United States as the defendant until subsequent submissions to the court, the
complaint lists fourteen formal "DEMAND(S),' at least one of which lists "The UNITED
STATES of AMERICA, et al." as "Co-Conspirato(s)" to "Fraudulent Case(s) (plural's)."
This particular demand, "ITEM (Liability) No. 12," includes allegations against AIG acting
in concert with the United States judiciary. Despite the number of alleged co-conspirators
to the events described throughout the complaint, plaintiffs make it clear that plaintiffs
believe AIG is responsible for every claim:
It is Equitable to note that "in EVERY" lssue / Matter / Other the 'Ultimate'
Responsible Person / lllegal Exactor (U.S. V Amend.) / Un-Authorized User
/ Controller / Manager / Un-Justly Enriched (Quantum Meruit), is .
AMERICAN INTERNATIONAL GROUP, lNC. et al. ('AlG, et al.').
The complaint consists of forty-six pages of grievances and demands, and an
additional sixteen appendices totaling 1 30 pages, for a cumulative total of 176 pages.
While the allegations in the complaint and the subsequent additions and amendments
with which Ms. Howell has inundated the court are often confusing and difficult to follow,
it appears that plaintiffs' claims stem from two, alleged, distinct events.3 First, an alleged
December 26, 1984 incident when, according to Rosemarie Howell, AIG supposedly
ordered a "MURDER-for-HlRE" "'HlT"' on Brian Howell, and, second, from an alleged
March 3, 1999 traffic incident in which, according to Rosemarie Howell, her truck was
rear-ended. Plaintiff Rosemarie Howell also alleges that AIG has made attempts at her
life since 1978-79, and that her parents and grandparents were "wrongfully EXECUTED,"
but she gives no details as to these events.
3 Since filing the complaint, Ms. Howell has submitted an amazing quantity of paper to
the court, much of which has been repetitive or not relevant to the case in this court. As
the volume of the submissions increased, the court began to return as unfiled a number
of plaintiffs' filings, which were not in conformance with the Rules of the United States
Court of Federal Claims, some of which were exact copies of previous filings and some
of which were not relevant to the case in this court.
Plaintiffs further allege that the December 26, 1984 "'HlT"' on Brian Howell was
ordered by AlG, or was ordered by Mr. Howell's own parents, in order for AIG to steal a
trust belonging to Rosemarie Howell that allegedly had matured in 1983. Plaintiffs state:
"AlG, et al." used this TRUST Account that Legally Belongs to [me] to
FUND [my] desired death (beg. 1978-79) executing the December 26,
1984 'HlT" and subsequent Malice Aforethought that proceeded.
Plaintiffs also state:
the so called CUSTODIAN(S) lack of desire to HAND-OVER said TRUST
to the RIGHTFUL OWNER, obviously orchestrated [in concert] with [the lN-
LAW(S)I [] a for profit "HlT" (December 26, 1984) which made certain the
life-altering injuries and near death of BRIAN P. HOWE11......,..........and
produced...........
[A] 'very' FRAUDULENT TRUST AGREEMENT
Among plaintiffs' many submissions to the court, plaintiffs even include an estimate for
dental work dated December 19. 2015. which "was never done for loss of benefits and
income; but is a result of the December 26, 1984 'HlT' "
With respect to the 1999 traffic incident in which plaintiff Rosemarie Howell's truck
was allegedly rear-ended, Rosemarie Howell claims that significant injuries resulted from
the collision, and that she was "inflicted on impact with a trauma induced degenerative
spinal cord injury referred to as'trauma induced syringomyelia."' According to plaintiffs,
the person who rear-ended Ms. Howell's carwas insured by Safeco Insurance Company.
Safeco Insurance Company allegedly issued a claim number, but plaintiffs allege Safeco
Insurance Company did not pay damages. Ms. Howell further alleges that on August 10,
2001, Safeco Insurance Company attempted to murder her, stating that Safeco Insurance
Company "inflicted secondary life altering injuries intending my death."
In the complaint, plaintiffs demand immediate payment from AlG, and "pro rata"
payments from other named co-conspirators, in the amount of $112,893,809,252.00.
Plaintiffs appear to derive the $112,893,809,252.00 figure from a $19,630,391,358.30
demand against alleged co-conspirator Safeco lnsurance Company for the 1999 traffic
incident, plus the accrual of interest at twelve percent per annum, from January 1999
through August 201 3. The $19.63 billion figure is a combination of an insurance claim
totaling $19,579,307,200.00, and a demand for litigation expenses totaling
$51,084,158.30. Plaintiffs provide no figures to explain how plaintiffs reached the
approximately $19.63 billion and $51 million figures for the insurance claim and demand
for litigation expenses. Plaintiffs include further demands in the sixteen appendices
attached to the complaint, which also include letters sent to the co-conspirators in past
years demanding awards of the following:
1. AT& T is to provide unlimited, FREE services to myself, my family, and
my proceeding family, for the balance of our lives. The invasion of
privacy is illegal.
2. Comcast Corporation is to provide unlimited, FREE services to myself,
my family, and proceeding family, for the balance of our lives. The
invasion of privacy, the illegal pornographic films, the illegal searching
of my home, more than once, is illegal.
3. Ford Motor Company is to reimburse ALL monies paid for the 2006, F-
350, write off the remaining balance owed on the 2006, F-350, sign over
the title to the 2006, F-350, as well as fix the damages.
4. Ford Motor Company is to provide two (2) NEW, 2008, F-350 trucks
loaded, FREE of charge, with lift kits and tires, identical to the 2006, F-
350 purchased and damaged beyond repair. Damaging private,
personal property is a criminal offense, punishable by law.
5. Ford Motor Company is to provide unlimited, FREE of charge,
mechanical services, for the balance of my life, my families lives, the life
of any vehicles purchased, procured. From Ford Motor Company.
Stalking and endangering lives is a criminal offense, punishable by law.
6. Honeywell / ADT is to provide FREE, unlimited services, for life, life of
family.
7. The job Brain was offered at Owens-lllinois, the job the tap, gps and
videos, Safeco Corporation, Comcast Corporation, damaged need to be
reinstated, immediately, or the dollar amount will be adjusted to reflect
damages, pay, benefits, pension, 401k. etc. Brain is an excellent
employee and I am fortunate he can work after everything he was
through. This was very damaging and unnecessary. Any employer is
fortunate to have an employee such as Brian with his caliber of work.
8. Quest is to provide unlimited, free services for life, life of my proceeding
family.
9. Dish is to provide unlimited, free services for life, life of my proceeding
family.
10.ALL ASSOCIATES ARE TO PROVIDE FREE, Unlimited services for life,
life of all proceeding family.
'1
1. SW Washington Medical Center, ALL Associates are to stay away from
my property, this property never for sale. I had plans when purchased.
12. Safeco Corooration. is to:
o Release all copies and originals of my records, bills, personal
information, recordings, etc.
4
. ALL videos are to be collected and handed over to mv
possession.
. Safeco Corporation is not to interfere in my medical care,
insurance, or nay of my business for my entire life.
. Safeco Corporation is to adhere to all subpoenas
immediately.
13. ALL Safeco Corporation, Associates, Businesses, Friends, Board
members, ALL associated businesses are to back off of my financials
and correct their theft, illegal attacks and bills, including but not limited
to, Columbia Collectors, Washington Mutual Bank, SW Washingtor
Medical Center, etc. Money Laundering is a criminal offense, punishable
by law.
14.ALL Safeco Corporation, ALL Business Associates, ALL Board
Members are to stay away from myself, my family and my proceeding
family, for the length of our lives.
Another words, keep your illegal business deals away from my family.
15. Safeco Corporation and ALL Associated individuals, businesses,
partners, board members, physicians, ALL parties, need to collect all the
recordings and deliver them.
16. Safeco Corporation is to adhere to all subpoenas immediately.
As noted above, since the complaint was filed on March 9, 2016, plaintiffs have
submitted a continuous stream of documents to the court, including many irrelevant
and/or incomprehensible submissions. The court notes just a few examples, including:
the same day that the complaint was filed, plaintiffs filed a "MOTION To TENDER The
DEMAND(S) SATISFIED,' requesting "Habeas Relief," "Seizure by Default (Quo
Wananto)," and that the demands of a November 2, 2015 submission be fulfilled,
although the November 2,2015 submission was not attached to the March 9, 2016
complaint and was only sent to the court as an appendix on June 3, 2016. Moreover, the
submission is virtually identical to the list of demands filed March 9, 2016. On March 28,
2016, defendant submitted a motion to stay the plaintiffs' 'MOTION To TENDER The
DEMAND(S) SATISFIED." On April 18,2016, plaintiffs submitted another version of the
"COMPLAINT' together with other documents, setting out nearly identical demands, but
listing the United States as a defendant in addition to AlG. Next, on April 26, 2016,
plaintiffs submitted a letter to the United States Social Security Administration. Then, on
May 3,2016, plaintiffs submitted multiple documents, including: 'COMPLAINT,'
'SUMMONS,"PLAINTIFF'S OBJECTIONS To The COURT's ORDER Of April 2'1,2016,"
'MOTION To JOIN PARTIES,''MEMORANDUM In SUPPORT Of MOTION TO JOIN
PARTIES,"AFFIDAVIT In Support Of MOTION To JOIN PARTIES,'"-MOTION To JOIN
PARTIES - FINDINGS Of FACT & CONCLUSIONS Of LAW," and 'PLAINTIFF'S
OBJECTION And RESPONSE To DEFENDANT(S) MoTloN TO STAY RESPONSE TO
PLAINTIFF'S MOTIONS." Subsequently, on July 11, 2016, plaintiffs filed another
'MOTION To TENDER The DEMAND(S) SAT|SFlED," along with additional documents.
Despite plaintiffs'frequent failure to comply with the court's Rules and procedural
requirements, in the beginning the court exercised leniency and filed some of the pro se
plaintiffs' submissions until it became beyond burdensome, duplicative, and not helpful to
the resolution of the case before the court. As the case proceeded, as noted above, the
court began to return submissions which were duplicative, nonconforming with the court's
Rules, or not relevant. For example, the referenced November 2, 20'15 submission was
virtually identical to the list of demands filed March 9, 2016. On May 13, 2016, plaintiffs
submitted the same letter to the Social Security Administration that had been submitted
on April 26,2016, and which had previously been returned, unfiled on May 6, 2016.
On May 3,2016, defendant moved to dismiss plaintiffs' complaint pursuantto Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2016), for
lack of subject matter jurisdiction, and RCFC 12(bX6) (2016), for failure to state a ctaim
upon which relief may be granted. On June 3, 20't6, plaintiffs submitted an "OBJECTION
and RESPONSE To DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLA|NT,"
which was filed as plaintiffs' response to defendant's motion to dismiss on June 28,2016.
Along with this response, plaintiffs again submifted a revised list of 'QEMANS.IS)
(plural's)," which was nearly identical to the complaint and to the two subsequent
attempted, revised complaints, that had each been returned to plaintiff unfiled, as well as
a new "MOTION To TENDER THE DEMAND(S) SATISFIED," and multiple memoranda
and affidavits in support of that motion, which also were returned unfiled to plaintiffs.
DtscusstoN
The court recognizes that plaintiffs are 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. 519, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'o denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 9a Q007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estette v. Gambte,429
U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322(Fed.Cir.2014); Diamond v. United States, 115 Fed. C|.516, 524,aft'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. C|.317,328 (2011)
(alterations in original) (quoting Scoqin v. United States,33 Fed. C|.285,293 (199S)
(quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. "1975))); see
also Bussiev. United States,96 Fed. C|.89,94, atfd,443 F. App'x 542(Fed. Cir.2011);
Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a oro se ptaintiff 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 Huqhes v. Rowe, 449 U.S. at 9 and Tavlor 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) ("[W]hile the court may excuse ambiguities
in a pro se plaintiffs 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. C|.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 threshold issues, the court considers whether the pro se representative,
Rosemarie Howell, may properly represent all the plaintiffs listed in the complaint. In the
complaint, five plaintiffs are named, including Rosemarie Howell, Brian Howell, "JANE
DOE(S) and JOHN DOE(S) 'bio-logical' Ex-Rel(s) HOWELL(s)," and "'The HOWELL
FAMILY-OWNED'Sovereign'CORPORATION."'As noted above, the only plaintiff to sign
the complaint and to submit filings has been Rosemarie Howell. As such, Rosemarie
Howell appears to be attempting to serve as a pro se representative for all named
olaintiffs.
According to RCFC 83.1(a)(3) an "individual who is not an attorney may represent
oneself or a member of one's immediate family, but may not represent a corporation, an
entity, or any other person in any other proceeding before this court." RCFC 83.1(a)(3)
(2016); see also Talasila. Inc. v. United States ,240 F.3d 1064, 1066 (Fed. Cir.) ("[Plaintiffl
must be represented by counsel in order to pursue its claim against the United States in
the Court of Federal Claims."), reh'q and reh'q en banc denied (Fed. Cir. 2001); Finast
Metal Prods., lnc. v. United States, 12 Cl. Ct. 759,761 (1987) ('[A] corporate'person'can
no more be represented in court by a non-lawyer-even its own president and sole
shareholder-than can any individual."); Affourtit v. United States, 79 Fed. Cl.776,779
(2006) ('A corporation appearing before the United States Court of Federal Claims . . .
must be represented by an attorney."). This rule applies despite possible financial
hardship imposed onthe plaintiffs. See Richdel. Inc. v. Sunsoool Coro.,699 F.2d 1366,
1366 (Fed. Cir. 1983) (holding that the plaintiff's "substantial financial hardship" did not
waive the rule requiring corporations to be represented by counsel); see also Balbach v.
United States, 119 Fed. Cl. 681, 683 (2015) ("A pro se plaintiff cannot represent a
corporation . . . The Court cannot waive this rule, even for cases of severe financial
hardship." (citing Affourtit v. United States, 79 Fed. Cl. at 780)).
Although the complaint names "'The HOWELL FAMILY-OWNED 'sovereign'
CORPORATION,"'as a plaintiff in this case, the complaint does not provide any additional
information about this corporation. Specifically, plaintiffs' submissions to this court do not
describe the corporation and do not explain how or why Rosemarie Howell should be
permitted to represent the corporation in this lawsuit. Therefore, to the extent Ms. Howell
is attempting to represent "'The HOWELL FAMILY-OWNED 'Sovereign'
CORPORATION,"' the complaint must be dismissed because, pursuant to RCFC
83.1 (a)(3), a pro se plaintiff cannot represent a corporation.
Also named as a plaintiff in the complaint is Brian Howell. Brian Howell is identified
as the spouse of Ms. Howell. In plaintiffs' March 9, 2016 filing of "FINDINGS OF FACT &
CONCLUSIONS OF LAW," plaintiff Rosemarie Howell states "l was married to BRIAN
PAUL HOWELL on OCTOBER 25, '1980.'Plaintiff Rosemarie Howell also refers to Brian
Howell as her husband in an e-mail, which was included in the filings submitted to the
court, asking for Brian Howell's pension information. This court has held that a spouse is
considered immediate family when considering the ability of a pro se litigant to represent
the spouse. See Kooan v. United States, 107 Fed. C|.707 ,708-05 (2012) (refening to an
order granting defendant's wife, who is not an attorney, the ability to represent defendant
pursuant to RCFC 83.1(aX3)); see also Black's Law Dictionarv 720 (10th ed.2O14)
(defining immediate family as including a person's spouse); Chief War Eaqle FamilvAss'n
& Treatv of 1837 & 1917 Reinstatement v. United States, 8'l Fed. Cl.234,234 (2007\
(defining "immediate family members" as a person's parents, spouse, children, and
siblings) (citing Black's Law Dictionarv 638 (8th ed. 2004)). Assuming for the sake of the
motion to dismiss that Brian Howell is currently the spouse of Rosemarie Howell, he is a
member of Rosemarie Howell's immediate family and she may properly represent Brian
Howell as a pro se representative, assuming they remain married.
In addition to Brian Howell, the complaint also names unidentified "JANE DOE(S)
and JOHN DOE(S) 'bioJogical' Ex-Rel(s) HOWELL(S)'as plaintiffs. The relationship of
Ms. Howell to the "JANE DOE(S) and JOHN DOE(S) 'bio-logical' Ex-Rel(s) HOWELL(S),'
however, is unclear in the complaint, and this court cannot ascertain whether Jane and
John Doe are part of Ms. Howell's immediate family. In the complaint, plaintiff Rosemarie
Howell describes her immediate family in different ways, and, at one point, she includes
her five children, their spouses, and grandchildren, but the complaint does not provide
sufficient identifying information.a The United States Court of Appeals for the Federal
Circuit has not clarified whether "immediate family" relates to multi-generational spans or
to the spouses of children. Additionally, some judges on this court have disagreed as to
particular interpretations of "immediate family," but generally have maintained a narrow
construction. See Chief War Eaqle Familv Ass'n & Treatv of 1837 & 1917 Reinstatement
v. United States, 81 Fed. Cl. at 234 (declining to include grandparents in the definition of
"immediate family"). Given that Jane and John Doe have not been identified to the court
and the court cannot determine whether a familial relationship exists between plaintiff
Rosemarie Howell and Jane and John Doe, Ms. Howell cannot represent these
unidentified individuals as a pro se representative.
4 Under section "ITEM (Liability) No. 4" in the list of demands, and under a section titled
'ROSE A. HOWELL, and EX-REL's HOWELL(S)'plaintiffs claim,"'AlG, et al.'cannot pay
for the lnjuies that I have sustained in "one Life Time"; or, the TRAUMA that [my]
CHILDREN have endured; or, the immense losses that have so "liberally" been inflicted;
or, the protracted HELL that 'is' / has been politically imposed." The complaint also states:
"Since my parent's and grand-parent's have been wrongfully EXECUTED (28 U.S.C.
52674 112) 'OUR IMMEDIATE FAMILY' includes: Myself (Rosemarie alkla Rose), Brian,
[our] Five Children and their Spouses, and [our] grandchildren and [our] preceding family
members thereof."
Plaintiffs also filed their lawsuit in this court against an improper defendant,
'AMERICAN INTERNATIONAL GROUP, lNC., et al." Pursuant to RCFC 10, all claims in
the United States Court of Federal Claims must have "the United States designated as
the party defendant." RCFC 10(a) (2016); see also 28 U.S.C S 1491(aX1) (2012).The
United States Supreme Court has indicated, for suits filed in the United States Court of
Federal Claims and its predecessors, "if the relief sought is against others than the United
States the suit as to them must be ignored as beyond the jurisdiction of the court." United
States v. Sherwood, 312 U.S. 584, 588 (1941) (citation omitted); see also Kurt v. United
States, 103 Fed. Cl. 384, 386 (2012). Stated difierently, "the only proper defendant for
any matter before this court is the United States, not its officers, nor any other individual."
Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) (emphasis in original); see also
United States v. Sherwood, 312 U.S. at 588; Mav v. United States, 80 Fed. C!.442,444
("Jurisdiction, then, is limited to suits against the United States."), affd, 293 F. App'x 775
(Fed. Cir. 2008). Accordingly, this court cannot consider plaintiffs' claims against any
defendant other than the United States.
Although the only proper defendant in this court is the United States, plaintiffs
consistently identify AIG as the defendant and, in plaintiffs' "OBJECTION and
RESPONSE To DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT,"
plaintiffs attempt to further justify naming AIG as a defendant. Plaintiffs argue that "[t]he
Court may at any time, on motion or on its own, on just terms add or drop a party," and
that "[t]he Court has the authority to dismiss non-essential parties to preserve jurisdiction."
Plaintiffs cite Grupo Datafluxv. Atlas Global Grp., L.P.,541 U.S. 567 (2004) to support
their argument. Plaintiffs fail to note that this decision refers to the Federal Rules of Civil
Procedure (FRCP), not to the Rules of the United States Court of Federal Claims. ld. at
572-73. Further, Grupo Dataflux v. Atlas Global Grp., L.P. clarifies that the rule permitting
the court to add a defendant applies to the United States District Courts. $g id. at 572-
73 ("it is well settled that [FRCP] 21 invests district courts with authority to allow a
dispensable nondiverse party to be dropped.") (emphasis added).
The RCFC, not the FRCP, govern the actions of the United States Court of Federal
Claims. In support of their argument, plaintiffs cite FRCP 21, which states that "the court
may at any time, on just terms, add or drop a palry." Fed. R. Civ. Pro. 21 (2016). While
the corresponding RCFC 21 uses identical text, RCFC 20(a), "Persons Who May Join or
Be Joined," restricts the eligible parties in this court. See RCFC 20(a) (2016); RCFC 21.
RCFC 20(a)(1) specifies the different types of plaintiffs that may be joined. RCFC
20(aX1). However, RCFC 20(a)(2), which pertains to the type of defendants that may be
joined, simply says "[Not Used]." RCFC 20(a)(2) (brackets in original). Thus, the language
of RCFC 20(a) makes it clear that the United States is the only proper defendant in this
court, and that this court does not have the authority to add defendants other than the
United States. Therefore, as explained above, AIG may not be identified as a defendant
in this court, neither in the complaint, nor as an added party. Further, to the extent that
plaintiffs attempt to allege claims against Pfizer, Ford, or any other defendant or "Co-
Conspirato(s)" that is not the United States, this court does not have jurisdiction to
adjudicate those claims. Accordingly, all of plaintiffs' claims against defendants other than
the United States are dismissed for lack of subiect matter iurisdiction.
Separate from the defects in plaintiffs' complaint concerning the proper plaintiffs
and proper defendant in this court, defendant has moved to dismiss plaintiffs' complaint
for lack of subject matter jurisdiction. The Tucker Act, 28 U.S.C. g 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. $ 1a91(a)(1). 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 Greentee Cnty., Ariz. v.
United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'o en banc denied (Fed. Cir.
2007), cert. denied,552 U.S. 1142(2008); Palmerv. United States, 168 F.3d 1910, 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, 52'1 F.3d 1338, 1343 (Fed. Cir.2008) ("[P]taintiff 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. Ct. 764,768 (2014). In Ontario
Power Generation, Inc. 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."
Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction ctaims as ctaims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. United States , 127 Ct. Cl. 505, 1 17 F. Supp. 576, 580 (1 954)) . . . .
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 1 007.
10
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,) 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.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
see also Twp. of Saddle Brook v. United States, 't 04 Fed. Cl. 101 , 1OG (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.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. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
al jurisdictional 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 jurisdiction."' Jan's Helicopter Serv., lnc. v. Fed.
Aviation Admin.,525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv.. 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
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. Twomblv, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Undenarriters. Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteqration. Inc. v. United States,659 F.3d
1 '159, 1 163 (Fed. Cir. 201 1).
"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
11
defensethatmaybe interposed." Hollevv. United States,124F.3d1462,1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'q
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011): Gonzalez-McCaullev Inv. Grp., lnc. 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) (2016); Fed. R. Civ. P. 8(a)(1), (2)
(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v.
Twomblv, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,
"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
support a claim." Bradlev v. Chiron Coro., 1 36 F.3d 1317 , 1322 (Fed. Cir. 1998); see also
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cr.2007) (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 7'13,723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), affd, 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 Consultinq 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.), reh'o
denied (Fed. Cn.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. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twomblv, 550 U.S. at 555).
Defendant moves to dismiss the claims asserted in plaintiffs' complaint as outside
of the court's subject matter jurisdiction under the Tucker Act, 28 U.S.C. g 1a91(a)(1), or
for failure to state a claim upon which relief may be granted, RCFC 12(bXO). In plaintiffs'
"OBJECTION and RESPONSE To DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S
COMPLAINT,' plaintiffs argue that a court may resolve issues without addressing subject
matter jurisdiction. Plaintiffs claim that, "[t]he Supreme Court has recognized two
'threshold grounds'on which a court can resolve a case without addressing subject matter
jurisdiction: (1) personal jurisdiction and (2) forum non conveniens." (internal citations
omitted). First, plaintiffs cite Ruhrqas AG v. Marathon Oil Co., 526 U.S.574 (1999), to
argue that, if a court finds personal jurisdiction, the court need not address subject matter
jurisdiction. To the contrary, "[flederal courts may hear only those cases over which they
have subject matter jurisdiction." See Semiconductor Enerqv Lab. Co., Ltd. v. Naoata,
706 F.3d 1365, 1368 (Fed. Cir. 2013). Subject matter jurisdiction must be presentforthe
court to rule on a case, and a case must be dismissed if subject matter jurisdiction is
lacking. See RCFC 12(b)(1)-(2); see also Semiconductor Enerqv Lab. Co.. Ltd. v. Naqata,
706 F.3d at 1368. Plaintiffs misread the Supreme Court's opinion in Ruhrqas to indicate
that if a court has personal jurisdiction, it need not have subject matter jurisdiction.
Plaintiffs also argue that forum non conveniens allows a court to hear a claim
without subject matter jurisdiction. Plaintiffs also fundamentally misunderstand the
doctrine of forum non conveniens, which allows a United States District Court to dismiss
12
"when an alternative forum has jurisdiction to hear [the] case, and. . . trial in
the chosen forum would establish. . . oppressiveness and vexation to a
defendant. .. out of all proportion to plaintiffs convenience, or .. . the
chosen forum [is] inappropriate because of considerations affecting the
court's own administrative and legal problems."
Sinochem Int'l Co. Ltd. v. Malavsia Int'l Shippinq Corp., 549 U.S. 422,429 (2007) (quoting
American Dredqinq Co. v. Miller, 510 U.S. 443,447-48 (1994) (quoting PiperAircraft Co.
v. Revno, 454 U.S. 235,241 (1981); Koster v. (American) Lumbermens Mut. Casualtv
Co., 330 U.S. 518, 524 (1547))) (ellipses and modifications in original). Contrary to
plaintiffs' argument, forum non conveniens is not a method of allowing jurisdiction when
subject matter jurisdiction does not exist, rather, it is a method of declining jurisdiction
when jurisdiction may exist, but when another court is a more appropriate and convenient
forum. See id.; see also Halo Creative & Desiqn Ltd. v. Comptoir Des lndes lnc., 816 F.3d
1366, 1369 (Fed. Cir. 2Q16) ("Forum non conveniens . . . allows a federal district court to
dismiss a suit over which it would normally have jurisdiction if trial in a foreign forum would
'best serve the convenience of the parties and the ends of justice."'). The Supreme Court
has explained that a District Court may dispose of an action pursuant to the doctrine of
forum non conveniens without first determining whether the court has subject matter
jurisdiction to hear the case because a forum non conveniens dismissal is a not based on
the merits of a case. See Sinochem lnt'l Co. Ltd. v. Malavsia Int'l Shippinq Corp., 549
U.S. at 432. The subject matter jurisdiction requirement, however, is not ovenidden by
the doctrine offorum non conveniens.
In the complaint, plaintiffs appear to allege claims under the Employee Retirement
lncome Security Act of 1974 (ERISA), 29 U.S.C.A. S 1 001 (2016), which was enacted to
"protect interstate commerce and the interests of participants in employee benefit plans."
29 U.S.C. S 10001(b). Plaintiff Brian Howell allegedly holds pensions within the ERISA
framework with General Dynamics, Sulzer Pumps, and Continental Casualty Co., among
others, for which plaintiffs appear to be seeking payment. Plaintiffs appear to argue that
this court has jurisdiction to hear ERISA claims because ERISA pensions allegedly
represent government contracts. Plaintiffs state "ERISA claims are contracts. 28 U.S.C.
$1491 (aX1). ln this case government contracts that are void ab intio." Ostensibly,
plaintiffs ask that the United States and AIG pay these pensions, although the listed
ER|SA-governed pensions, according to the complaint, are held by General Dynamics,
Sulzer Pumps, and Continental Casualty Co., among others. The ERISA statute,
however, clearly assigns exclusive jurisdiction for claims under ERISA to the United
States District Courts, and, in certain circumstances, it grants concurrent jurisdtction to
District Courts and to state courts. See 29 U.S.C. S 1132(e\(1), (f), (k) (2012) ("the district
courts of the United States shall have exclusive jurisdiction of civil actions under this
subchapter brought by the Secretary or by the participant, beneficiary, fiduciary. . . .
State courts of competent jurisdiction and district courts of the United States shall have
concurrent jurisdiction of actions under paragraphs (1XB) and (7) of subsection (a) of
this section.") Moreover, plaintiffs' argument fails on the plain language of 28 U.S.C. $
1501 , which states, "[t]he United States Court of Federal Claims shall not have
jurisdiction of any claim for a pension." 28 U.S.C. S 1501 (2012). Any claims asking the
federal government to intervene and force private employers to pay the pensions
IJ
allegedly due to plaintiffs, or for the government to pay the pensions in place of the
private employers, lie outside the subject matter jurisdiction of this court and are
d ismissed.
Plaintiffs further appear to make allegations concerning social security disability
benefits. From the confusing language in the complaint, it seems that plaintiffs do not
demand that the United States pay social security benefits. To the contrary, the complaint
apparently suggests that the United States has been paying plaintiffs for social security
disability benefits, and plaintiffs believe AIG should reimburse the United States for those
payments:
"AlG, et al." is DEMANDED to RE-IMBURSE "the Government, Social
Security Department" for "all" past paid Social Security Disability
Payments made (412811999-present) which [must be] Funded "out-of AlG,
et al. legitimately owned Asset's" - "AlG, et al." is the cause in fact of
said Disability (r.e., Life-Altering Injuries) and therefore, Responsible As A
Matter of LAW.
Regardless, plaintiffs may not bring a social security claim in this court. The Court
of Federal Claims does not have jurisdiction over claims arising under the Social Security
Act. See Addams-More v. United States, 81 Fed. Cl.312,315, affd, 296 F. App'x 45 (Fed.
Cir. 2008) (citing Marcus v. United States, 909 F.2d 1470,1471 (Fed. Cir. 1990) (holding
"that the Claims Court has no jurisdiction under the Tucker Act . . . over claims to social
security benefits.")). The statute at 42 U.S.C. S 405(g) (2012) instructs that any claims for
review of social security benefits payment "shall be brought in the district court[s]," and
42 U.S.C. S 405(h) further specifies that no decision "shall be reviewed by any person,
tribunal, or governmental agency except as herein provided." 42 U.S.C. S 405(g), (h).
Accordingly, any claim that plaintiffs intended to bring against the United States regarding
social security benefits are dismissed for lack of subject matter jurisdiction.
Defendant also has argued that this court lacks subject matter jurisdiction to
consider plaintiffs' allegations that sound in tort or criminal law. Plaintiffs make multiple
allegations against AlG, while also implicating the United States, including fraud, "Felony
Theft [in concert] with'AlG, et al.,"'and "RICO Enterprising." Plaintiffs demand thatAlG
'RESTORE [our] Reputations" and that AIG "VACATE, REVERSE, and DISMISS 'all'
Judgments / Sentences / charges / other [] in 'every' Case . . . ." To the extent that
plaintiffs' complaint asserts claims of conspiracy, misrepresentation, theft, including
identity theft, fraud, and racketeering, those claims sound in tort or allege criminal acts.
The Tucker Act expressly excludes tort claims from the jurisdiction of the United
States Court of Federal Claims. See 28 U.S.C. S 1491(a) ("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 soundinq in tort.")
(emphasis added); see also Keene Corp. v. United States,508 U.S.200,214 (1993);
Rick's Mushroom Serv.. Inc. v. United States, 521 F.3d at 1343; Alves v. United States,
14
133 F.3d 1454,1459 (Fed. Cir. 1998); Brown v. United States, 105 F.3d 621,623 (Fed.
Cir.) ("Because Brown and Darnell's complaints for 'fraudulent assessment[s]' are
grounded upon fraud, which is a tort, the court lacks jurisdiction over those claims."), reh'q
denied (Fed. Cir. 1997); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n.8
(Fed. Cir.), reh'q denied, en banc suqqestion declined (Fed. Cir.), cert. denied,513 U.S.
961 (1994); Hampel v. United States, 97 Fed. Cl.235,238, aff d,429 F. App'x 995 (Fed.
Cir. 201 1), cert. denied, 1 32 S. Ct. 1 105 (2012); Jumah v. United States, 90 Fed. Cl. 603,
607 (2009) ("[]t is well-established that the Court of Federal Claims does not have
jurisdiction over tort claims. Here, Mr. Jumah seeks damages for '[n]eglect,
Im]isrepresentation, flalse Ii]mprisonment, [c]onspiracy, Ii]ntentional Ii]nfliction of
emotional [d]istress, [i]nvasion of [p]rivacy, [n]egligence and [t]respass and [p]unitive
[d]amages.' These are all claims sounding in tort." (internal citation omitted; all brackets
in original)), aff'd,385 F. App'x 987 (Fed. Cir.2010); Woodson v. United States,89 Fed.
Cl. 640, 650 (2009); 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."'); Edelmann v. United States, 76 Fed. Cl. 376, 379-80 (2007) ("This Court'does
not have jurisdiction over claims that defendant engaged in negligent, fraudulent, or other
wrongful conduct when discharging its official duties' . . . [and] Plaintiffs' claims of fraud,
misrepresentation, slander, perjury, harassment, intimidation, coercion, theft, and
defamation, and their claims that the Government deprived Ms. Edelmann of her right to
a fair trial, are tort claims." (quoting Cottrell v. United States,42 Fed. Cl. 144,1a9 (1998));
McCullouoh v. United States, 76 Fed. Cl. 1, 3 (2006), appeal dismissed, 236 F. App'x 615
(Fed. Cir.), reh'q denied (Fed. Cir.), cert. denied,552 U.S. 1050 (2007); Aqee v. United
States, 72 Fed. Cl. 284, 290 (2006); Zhenqxinq v. United States,71 Fed. Cl. 732,739,
atl'd, 204 F. App'x 885 (Fed. Cir.), reh'q denied (Fed. Cir. 2006). Plaintiffs' claims
sounding in tort, such as misrepresentation and conspiracy, must be dismissed for lack
of subject matter jurisdiction.
To the extent that plaintiffs are alleging acts of criminal conduct, such as criminal
conspiracy, identity theft, criminal fraud, and racketeering, this court also lacks jurisdiction
to adjudicate those claims. See 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 [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, apoeal dismissed, 375 F. App'x 4 (Fed.
Cir. 2009); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (holding that the United
States Court of Federal 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 to consider plaintiffs criminal claims), recons. denied, 73 Fed. Cl.
524 (2006); McCullouqh v. United States, 76 Fed. Cl. at 4 (finding that the court lacked
jurisdiction to consider plaintiff's criminal claims). Accordingly, plaintiffs' allegations
asserting criminal acts, such as fraud, racketeering, identity theft, and "Felony Theft" must
be dismissed for lack of subject matter jurisdiction.
Furthermore, plaintiffs' claims appear to try to implicate the Freedom of Information
Act (FOIA), 5 U.S.C. S 552 (2012), but it is unclear exactly how. Plaintiffs refer to:
15
ln Re (Govemment).
APPEAL(OlP) No. 201 5-0471 5
And
*'FREEDoM
OF INFORMATION ACT APPEAL" (OSG) No. 201 5-1 19560.
Plaintiffs' claim lists a "FO|A' APPEAL' and an Office of Information Policy (OlP) case
number. Regardless, the Court of Federal Claims has no jurisdiction to adjudicate FOIA
claims, as Congress explicitly vested exclusive jurisdiction regarding those matters in the
United States District Courts. See 5 U.S.C. S 552(aX4XB); see also Gaines v. United
States, 226 Ct. Cl. 691, 692 (1981) ("Congress has vested jurisdiction not in [the United
States Court of Federal Claimsl but in the district courts over Freedom of Information and
Privacy Act claims."). Therefore, any FOIA appeals may not be the basis for filing a claim
in this court, and must be dismissed for lack of subject matter jurisdiction.
In "PLAINTIFF'S OBJECTION and RESPONSE To DEFENDANT'S MOTION TO
DISMISS' plaintiffs also appear to allege "contracts-based claims." Although plaintiffs
correctly indicate that this court has subject matter jurisdiction to consider breach of
contract claims against the United States, plaintiffs do not explain their "contracts-based
claims" or set forth any facts to support a breach of contract claim. Specifically, plaintiffs
do not appear to even allege that a contract exists between plaintiffs and the United
States. As a result, plaintiffs have failed to state a claim for relief with regard to any alleged
contract claims.5
Further, in plaintiffs' "OBJECTION and RESPONSE To DEFENDANT'S MOTION
TO DISMISS PLAINTIFF'S COMPLA|NT," plaintiffs, for the first time, raise constitutional
clause violations against the United States. Plaintiffs allege violations of the Takings
Clause, Due Process Clause, Privileges and lmmunities Clause, Cruel and Unusual
Punishment Clause, Equal Protection Clause, Privacy Clause, and Commerce Clause.
Regarding plaintiffs' claims alleging a violation of due process, the United States
Court of Appeals for 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 to the United States Constitution. See Crocker v. United States,
125 F.3d 1475, 1476 (Fed. Cir. 1997) (citing LeBlanc v. United States, 50 F.3d 1025,
1028 (Fed. Cir. 1995)) (no jurisdiction over a due process violation under the Fifth and
Fourteenth Amendments); see also Smith v. United States, 709 F.3d 1114, 1116 (Fed.
Cir.) ("The law is well setlled 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 LeBlanc v. United States, 50 F.3d at 1 028),
cert. denied, 134 S. Ct.259 (2013)); In re United States,463 F.3d 1328, 1335 n.5 (Fed.
Cir.) ("[B]ecause the Due Process Clause is not money-mandating, it may not provide the
5To the extent plaintiffs allege a violation of the Contract Clause of the United States
Constitution, this court does not have jurisdiction to entertain such a claim because the
Contract Clause "is a prohibition directed at the states, and not the federal government."
McNeil v. United States, 78 Fed. Cl.211,225 (2007), affd,293 F. App'x 758 (Fed. Cir.
2008); see also U.S. Const. art. l, $ 10, cl. 1.
to
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. 940 (2007). The court also
does not have subject mafter jurisdiction for claims brought under the Privileges and
lmmunities Clause of the United States Constitution. McCullouqh v. United States, 76
Fed. Cl. at 4 ("[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.").
Furthermore, this court does not have jurisdiction over claims brought under the
Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States
Constitution. See Tasbv 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)); Hernandez v. United States,
93 Fed. Cl. 193, 198 (2010) ("Plaintiff avers that his rights under the First, Fourth, Fifth,
Sixth, Seventh, Eight, Ninth, Fourteenth, and Fifteenth Amendments were violated. None
of these claims allege a violation for which money damages are mandated."); Trafnv v.
United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("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).
In addition, this court does not have subject matter jurisdiction over claims
grounded in the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution. Seg LeBlanc v. United States, 50 F.3d at 1028 (indicating that a claim
under the Equal Protection Clause of the Fourteenth Amendment is not sufficient for
jurisdiction in the United States Court of Federal Claims because it does not "mandate
payment of money by the government." (citing Canuth v. United States,224 Ct. Cl. 422,
aas (1980))); Potter v. United States, 108 Fed. Cl.544,548 (2013) (finding that "this Court
lacks jurisdiction over violations under the Due Process Clauses of the Fifth and
Fourteenth Amendments . . . because they do not mandate payment of money by the
government.") (internal citations omitted) (modifications in original); Warren v. United
States, 106 Fed. Cl. 507,511 (2012) (holding that, since the "Fourteenth Amendment
guarantee of equal protection" is not money mandating, "[a]ccordingly, the court lacks
jurisdiction over these claims.").
Likewise, this court does not have subject matter jurisdiction over claims rooted in,
as plaintiffs frame it, the "'Privacy Clause'of the U.S. Fourth Amendmenf)," as the court
has no jurisdiction over any claim based on the Fourth Amendment. See LaChance v.
United States, 15 Cl. Ct. 127,130 (1988) ("[T]he fourth amendment does not mandate
the payment of money by the United States." (citing Shaw v. United States, I Cl. Ct. 796,
800 (1985))); Roberson v. United States, 1 15 Fed. Cl. 234,240 ("The Fourth Amendment
is not money-mandating." (citing Brown v. United States, 105 F.3d 621 , 623 (Fed. Cir.
1997))), appeal dismissed, 556 F. App'x 966 (Fed. Cir.2014); Haka v. United States, 107
Fed. Cl. 111,113-14 (20't2); Kam-Almaz v. United States, 96 Fed. Cl. 84, Bg (2011)
("[T]his Court does not have jurisdiction to hear claims contesting the laMulness of a
search and seizure because due process and Fourth Amendment claims are reserved to
the DistrictCourt." (citing LeBlancv. United States.50 F.3d 1025,1028 (Fed. Cir. 1995))),
17
affd,682 F.3d 1364 (Fed. Cir. 2012). Accordingly, all of the plaintiffs' above-identified
constitutional claims are dismissed for lack of subject matter jurisdiction.
Plaintiffs also appear to try to allege a violation of the Takings Clause of the Fifth
Amendment to the United States Constitution. but Dlaintiffs demonstrate a fundamental
misunderstanding of the Takings Clause by invoking it against private entities and
individual persons. For instance, plaintiffs state, "'AlG, et al.' took and kept on taking
(lllegally Exacting what does not belong thereto (U.S. V Amend.))."
Plaintiffs also state:
"AlG, et al." RICO Enterprising by and through consecutive politically
motivated "HlT(S)' for the premeditated intent / purpose of ILLEGALLY
EXACTING (U.S. V Amend.) """Sovereign Wealth(s) / Sovereign(s)" that
"are" the Legal, Vested, Rightful, "Legitimate" Birthright / Heritage of
ROSEMARIE E. A. (nee'VIKARA) HOWELL"' Manifested Damages of an
Inconceivable Degree;
NONETHELESS, "AlG, et al." is Legally Responsible and [must be] held
Accountable As A Matter of LAW.
To the extent plaintiffs allege any violation of the Fifth Amendment Taking Clause
by the United States, plaintiffs appear to be arguing a conspiracy between the United
States and AlG, as follows:
Plaintiffs' "demands" are well-pled [vested claim's] that the UNITED
STATES [in concert] with AlG, et al. (defendant's and co-defendant's) '?n-
authorized" TAKING (citing the "Takings Clause" ol the U.S. V Amend)
has [made certain] when violating an 'infant child' (l.e., the plaintiff) and kept
on truckin' with the "intent" of Defrauding the plaintiff out-of [her] Inheritance.
Although plaintiffs try to assert a claim under the Takings Clause, which, if properly
filed, could fall within the purview of this court's jurisdiction, plaintiffs do not even identify
a property interest owned by plaintiffs that was allegedly taken by the United States, which
is a necessary part of a valid Fifth Amendment Takings claim. The United States Court of
Appeals for the Federal Circuit has established a two-part test to determine whether
government actions amount to a taking of private property under the Fifth Amendment.
See Klamath lrr. Dist. v. United States,635 F.3d 505,511 (Fed. Cir.2011); Am. Pelaoic
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.), cert. denied, 516 U.S. 808 (1995)),
reh'q denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005). A court first determines
whether a plaintiff possesses a cognizable property interest in the subject of the alleged
takings. 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 1370, '1377 (Fed. Cir.) (quoting Am. Pelaqic Fishinq Co., L.P. v. United States, 379
F.3d at 1372), cert. denied, 555 U.S. 1045 (2008).
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To establish a taking, a plaintiff 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 (1945)); CRV Enters., Inc. v. United States,626 F.3d
1241 ,1249 (Fed. Cir. 2010), cert. denied, 563 U.S. 989 (2011); Karuk Tribe of Cal. v.
Ammon, 209 F.3d 1366,1374-75 (Fed. Cir.), reh'q denied and en banc suqqestion denied
(Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001). "'lt is axiomatic that only persons with
a valid property interest at the time of the taking are entitled to compensation."' Am.
Pelaqic Fishinq Co. v. United States, 379 F.3d a| 1372 (quoting Wvatt v. United States,
271 F .3d 1 090, 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 atan end."Am. Pelaqic Fishino 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 Co. v. United
States,47 F.3d at 1154). 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. Pelaoic Fishinq Co. v. United States,379 F.3d at
1381 and Conti v. United States,291 F.3d 1334, 1340 (Fed. Cir.), reh'q en bancdenied
(Fed. Cir. 2002), cerl. denied, 537 U.S. 1112 (2003)), reh'q denied and reh'q 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."' Huntleioh USA Corp. v.
United States,525 F.3d at 1378 (quoting Am. Pelaqic Fishinq Co. v. United States,379
F.3d at 1372).
Here, plaintiffs have failed to allege or demonstrate a legally cognizable property
interest and make only unsupported, bald allegations which are insufficient to support
plaintiffs' takings claim. As noted above, "conclusory allegations unsupported by any
factual assertions will not withstand a motion to dismiss." Briscoe v. LaHue. 663 F.2d at
723; see also Bradlev v. Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir. 1998) (noting, in
discussion of motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6),
that "[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
support a claim"). In order to survive a motion to dismiss for failure to state a claim, the
factual allegations set forth in the complaint "must be enough to raise [plaintiffs] right to
relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555
(quoting C. Wright and A. Miller, Federal Practice and Procedure S 1216, p.235-36 (3d
ed. 2004). 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."' Ashcroft v.
lqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twomblv, 550 U.S. at 557). Because
plaintiffs offer only vague and conclusory allegations that trusts and property were stolen
by AlG, not the United States, without even demonstrating a legally cognizable property
interest, the court finds that plaintiffs have failed to state a claim under the Takings Clause
of the Fifth Amendment.
CONCLUSION
Defendant's motion to dismiss is GRANTED, and plaintiffs' complaint is
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DISMISSED. The Clerk's Office shall enter JUDGMENT consistent with this Opinion.
IT IS SO ORDERED.
ARIAN BLANK HORN
Judge
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