Davis v. United States

3Jn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns
No. 19-671C
Filed: November 1, 2019
NOT FOR PUBLICATION
)
CHRISTOPHER BROWN, a/k/a )
CHRISTOPHER DAVIS, )
)
Plaintiff, ) Pro Se; RCFC 12(b)(l); Subject-Matter
) Jurisdiction; Takings; Tmi; Paiiies Other
V. ) Than The United States.
)
THE UNITED STATES, )
)
Defendant. )
- -- - - - - -- - -- - - - )
Christopher Brown, a/k/a Christopher Davis, Detroit, MI, plaintiffprose.
Douglass G. Edelschick, Trial Attorney, Elizabeth M Hosford, Assistant Director, Robert
E. Kirschman, Jr., Director, Joseph H Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Depai1ment of Justice, Washington, DC, for defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Plaintiff pro se, Christopher Brown, a/k/a Christopher Davis, brings this action alleging,
among other things, that Amtrak has violated his due process rights under the United States
Constitution and taken his prope11y without just compensation, pursuant to the Tucker Act, 28
U.S.C. § 1491. See generally Compl. As relief, plaintiff seeks to recover monetary damages
from the United States. Id. at`` 54-59.
The government has moved to dismiss this matter for lack of subject-matter jurisdiction,
pursuant to Rule 12(b)(l) of the Rules of the United States Cami of Federal Claims ("RCFC").
See generally Def. Mot. Plaintiff has also moved for a default judgment pursuant to RCFC 55.
Pl. Resp. at 10-11. For the reasons discussed below, the Court: (1) GRANTS the government's
motion to dismiss; (2) DENIES-AS-MOOT plaintiffs motion for a default judgment; and (3)
DISMISSES the complaint.
II. FACTUAL AND PROCEDURAL BACKGROUND 1
A. Factual Background
Plaintiff, pro se, Cln·istopher Brown, a/k/a Christopher Davis, commenced this action on
May 1, 2019. See generally Comp!. In the complaint, plaintiff alleges that Amtrak and the
Henrico County Virginia Police Depatiment were negligent and engaged in reckless and wanton
conduct by removing him from an Amtrak train during a trip from Rocky Mount, NC to
Washington, DC. Id. at ,r,r 20-21, 57. Specifically, plaintiff alleges that, during a train ride that
occurred on June 17, 2015, Amtrak contacted the Henrico County Virginia Police Depatiment to
remove him from the train and that Amtrak did not refund his ticket. Id. at ,r,r 18, 21-22.
Plaintiff also alleges that, after removal from the train, he had to expend addition funds to travel
by bus to his final destination. Id. at il 22.
Plaintiff contends that the actions of Amtrak and the Henrico County Virginia Police
Depatiment violated the Commerce and Full Faith and Credit Clauses of the United States
Constitution, as well as Article 1, Section 10 of the United States Constitution (the Obligation of
Contract Clause). Id. at 1; ,r,r 18-20. Plaintiff also alleges a violation of the Privileges and
Immunities Clause. Id. at ,r 21. Plaintiff also alleges that he has been deprived of his Fifth
Amendment substantive and procedural due process rights. Id. at ,r 21. In addition, plaintiff
alleges a taking of his property in violation of the Takings Clause of the United States
Constitution. Id.
In addition, plaintiff alleges that there was an"[ a]nticipatory Breach of Contract" because
he had to pay for a taxi and to purchase a bus ticket after being removed from the Amtrak train.
Id. at ,r 22. Lastly, plaintiff contends that he is entitled to recover damages from the government
pursuant to 19 U.S.C. § 1619. Id. at ,r,r 8-9.
1 The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Comp!.") and
the exhibits attached thereto ("Pl. Ex."); the government's motion to dismiss ("Def. Mot."); and plaintiff's
response and opposition to the government's motion to dismiss ("Pl. Resp."). Unless otherwise noted
herein, the facts recited are undisputed.
2
As relief, plaintiff seeks to recover monetary damages from the United States. Id at``
54-59.
B. Procedural History
Plaintiff commenced this action on May I, 2019. See generally Comp!. On June 20,
2019, the government filed a motion to dismiss this matter for Jack of subject-matter jurisdiction,
pursuant to RCFC 12(b)(l). See generally Def. Mot.
On July 17, 2019, plaintiff filed a response and opposition to the government's motion to
dismiss and a motion for a default judgment pursuant to RCFC 5 5. See generally Pl. Resp. On
July 23, 2019, the government filed a reply in support of its motion to dismiss. See generally
Def. Reply. On August 13, 2019, plaintiff filed a sur-reply by leave of the Court. See generally
PL Sur-Reply.
This matter having been fully briefed, the Comt resolves the pending motions.
III. LEGAL STANDARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x 919,
926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.
2007)). When dete1mining whether a complaint filed by a pro se plaintiff is sufficient to survive
a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to
plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519,520 (1972)
(holding that prose complaints, "however inartfully pleaded," are held to "less stringent
standards than formal pleadings drafted by lawyers"); Matthews v. United States, 750 F.3d 1320,
1322 (Fed. Cir. 2014). But, there "is no duty on the part of the trial court to create a claim which
[the plaintiff] has not spelled out in his pleading." Lengen v. United States, 100 Fed. Cl. 317,
328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin v. United
States, 33 Fed. CL 285,293 (1995) (citations omitted)).
While "a pro se plaintiff is held to a less stringent standard than that of a plaintiff
represented by an attorney ... the pro se plaintiff, neve1theless, bears the burden of establishing
the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. CL
3
163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)). And so,
the Court may excuse ambiguities, but not defects, in the complaint. Colbert v. United States,
617 F. App'x 981, 983 (Fed. Cir. 2015); see also Demes v. United States, 52 Fed. Cl. 365,368
(2002) ("[T]he leniency afforded pro se litigants with respect to mere formalities does not relieve
them of jurisdictional requirements." (citations omitted)).
B. RCFC 12(b)(l)
When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(I), 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. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also RCFC 12(b)(l). But,
plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). Should the Court determine that "it lacks jurisdiction over the subject matter, it
must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).
In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375,377 (1994). The Tucker Act grants the Court
jurisdiction over:
[A ]ny 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 tmt.
28 U.S.C. § 1491(a)(l). The Tucker Act is, however, "a jurisdictional statute; it does not create
any substantive right enforceable against the United States for money damages .... [T]he Act
merely confers jurisdiction upon [the United States Comt of Federal Claims] whenever the
substantive right exists." United States v. Testan, 424 U.S. 392,398 (1976). And so, to pursue a
substantive right against the United States under the Tucker Act, plaintiff must identify and plead
a money-mandating constitutional provision, statute, or regulation; an express or implied
contract with the United States; or an illegal exaction of money by the United States. Cabral v.
United States, 317 F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d
I 167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302 (Fed. Cir.
4
2003). "[A] statute or regulation is money-mandating for jurisdictional purposes ifit 'can fairly
be interpreted as mandating compensation for damages sustained as a result of the breach of the
duties [it] impose[s]."' Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell, 463 U.S.
206,217 (1983)).
In this regard, it is well-established that this Court does not possess subject-matter
jurisdiction to review t01i claims. 28 U.S.C. § 1491(a)(l); see also Keene Corp. v. United States,
508 U.S. 200, 214 (1993) ("[T]ort cases are outside the jurisdiction of the Comi of Federal
Claims today."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008) ("The plain language of the Tucker Act excludes from the Court of Federal Claims
jurisdiction [over] claims sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195,204
(2010). And so, the Court must dismiss tort claims for lack of subject-matter jurisdiction.
It is also well-established that the United States is the only proper defendant for any
matter before this Comi. RCFC IO(a); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003).
And so, the Court must also dismiss claims brought against any party other than the United
States for lack of subject-matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 588
(1941).
C. Contracts With The United States
To pursue a breach of contract claim against the United States under the Tucker Act,
plaintiff must have privily of contract with the United States. Flex/ab, L.L. C. v. United States,
424 F.3d 1254, 1263 (Fed. Cir. 2005) (citations omitted) ("[T]he 'government consents to be
sued only by those with whom it has privity of contract.'"). Plaintiff must also support his
contract claim with well-pleaded allegations going to each element of a contract. See Crewzers
Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014) (holding that to
invoke the jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded
allegation that its claims arose out of a valid contract with the United States); see also RCFC
9(k) ("In pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions of the contract or treaty on which the party relies."); Gonzalez-Mccaulley Inv. Grp.,
Inc. v. United States, 93 Fed. Cl. 710, 715 (2010).
The requirements for establishing a contract with the United States are identical for
express and implied-in-fact contracts. See Night Vision Corp. v. United States, 469 F.3d 1369,
5
1375 (Fed. Cir. 2006); Huntington Promotional & Supply, LLC v. United States, 114 Fed. Cl.
760, 767 (2014) ("The elements are the same for an express or implied-in-fact contract. ... ").
Specifically, a plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the pmt of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United
States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). A government official's authority to bind the
United States must be express or implied. Roy v. United States, 38 Fed. Cl. 184, 188-89 (1997),
dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, "the [g]overnment, unlike private parties,
cannot be bound by the apparent authority of its agents." Id. at 187.
In this regard, a government official possesses express actual authority to bind the United
States in contract "'only when the Constitution, a statute, or a regulation grants it to that agent in
unambiguous terms."' Jumah v. United States, 90 Fed. Cl. 603, 612 (2009), ajf'd, 385 F. App'x
987 (Fed. Cir. 2010) (internal citations omitted); see also City ofEl Centro v. United States, 922
F.2d 816,820 (Fed. Cir. 1990) (citation omitted). On the other hand, a government official
possesses implied actual authority to bind the United States in contract "when the employee
cannot perform his assigned tasks without such authority and when the relevant agency's
regulations do not grant the authority to other agency employees." SGS-92-X00J v. United
States, 74 Fed. Cl. 637,652 (2007) (citations omitted); see also Aboo v. United States, 86 Fed.
Cl. 618,627 (2009) (stating that implied actual authority "is restricted to situations where 'such
authority is considered to be an integral pmt of the duties assigned to a [g]overnment
employee."') (quoting H Landau & Co. v. United States, 886 F.2d 322,324 (Fed. Cir. 1989)).
In addition, when a goverrunent agent does not possess express or implied actual authority to
bind the United States in contract, the government can still be bound by contract if the contract
was ratified by an official with the necessary authority. Janowsky v. United States, 133 F.3d
888, 891-92 (Fed. Cir. 1998).
D. Takings Claims
Lastly, the Comt has exclusive jurisdiction over Fifth Amendment takings claims in
excess of$10,000. 28 U.S.C. § 1491(a); see also Acceptance Ins. Cos. Inc. v. United States, 503
F.3d 1328, 1336 (Fed. Cir. 2007). The Takings Clause of the Fifth Amendment guarantees just
6
compensation whenever private prope1ty is "taken" for public use. U.S. CONST. amend. V. The
purpose of the Fifth Amendment is to prevent the "[g]overnment from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole." Penn Central Transp. Co. v. City ofNew York, 438 U.S. 104, 123 (1978) (quoting
Armstrong v. United States, 364 U.S. 40, 49 (1960)); see also Florida Rock Indus., Inc. v. United
States, 18 F.3d 1560, 1571 (Fed. Cir. 1994).
To have a cause of action for a Fifth Amendment takings, a plaintiff must point to a
protectable property interest that is asserted to be the subject of the takings. See Phillips v.
Wash. Legal Found., 524 U.S. 156, 164 (1998) (citation omitted) ("Because the Constitution
protects rather than creates property interests, the existence of a prope1ty interest is determined
by reference to 'existing rules or understandings that stem from an independent source such as
state law."'). The Federal Circuit has held that "prope1ty" is defined within the context of the
Takings Clause as a "legally-recognized prope1ty interest such as one in real estate, personal
property, or intellectual property." Adams v. United States, 391 F.3d 1212, 1224 (Fed. Cir.
2004) (clarifying that an ordinary obligation to pay money does not constitute "property" under
the Takings Clause). Contract rights can be the subject of a takings action. See, e.g., Lynch v.
United States, 292 U.S. 571,579 (1934) ("Valid contracts are prope1ty, whether the obligor be a
private individual, a municipality, a state or the United States.").
IV. LEGAL ANALYSIS
The government has moved to dismiss this matter for lack of subject-matter jurisdiction,
pursuant to RCFC 12(b)(l), upon the grounds that plaintiffs claims involve alleged tortious
conduct by a party other than the United States and that plaintiff relies upon constitutional law
provisions that are not money-mandating to establish jurisdiction under the Tucker Act. Def.
Mot. at 1. In his response and opposition to the government's motion to dismiss, plaintiff argues
that the Court should not dismiss this matter because Amtrak is a federal agency operating on
behalf of the government and the Court possesses subject-matter jurisdiction to consider his
claims. Pl. Resp. at 3. In addition, plaintiff: (1) states that he is withdrawing his claim against
the Henrico County Virginia Police Department; (2) states that he does not intend to assert a
negligence claim in this action; and (3) moves for a default judgment. Pl. Resp. at 4, 6, 10.
7
For the reasons discussed below, a plain reading of the complaint makes clear that
plaintiff has not established that any of his claims fall within the Court's limited jurisdiction
under the Tucker Act. And so, the Court: (1) GRANTS the government's motion to dismiss;
(2) DENIES-AS-MOOT plaintiffs motion for a default judgment, and (3) DISMISSES the
complaint.
A. The Court May Not Consider Plaintifrs Claims
1. The Court May Not Consider PlaintifPs
Claims Against Parties Other Than The United States
As an initial matter, the Court does not possess subject-matter jurisdiction to consider
plaintiffs claims against Amtrak or the Henrico County Virginia Police Department. It is well-
established that the United States is the only proper defendant in a case brought in this Court.
Pikulin v. United States, 97 Fed. Cl. 71, 75 (2011 ); Stephenson v. United States, 58 Fed. Cl. 186,
190 (2003) ("[T]he only proper defendant for any matter before this court is the United States ...
." (emphasis in original)). And so, the Court may not entertain claims brought against any patty
other that the United States in this action.
In the compliant, plaintiff names Amtrak and the Henrico County Virginia Police
Department as defendants in this action. Comp!. at ii 17. But, the United States Comt of
Appeals for the Federal Circuit has long held that Amtrak is not a governmental agency or
department of the United States and the Federal Circuit has also prohibited the assertion of
claims against Amtrak in this Court. Green v. United States, 229 Ct. CL 812, 814 (1982);
Slattery v. United States, 635 F.3d 1298, 1307 n.3 (Fed. Cir. 2011) (en bane). Given this, the
Comt must dismiss plaintiffs claims against Amtrak. RCFC 12(b)(l).
To the extent that plaintiff asse1ts claims against the Hemico County Virginia Police
Depattment, the Court must also dismiss these claims. 2 It is well-established that the Court lacks
'Jmisdiction over any claims alleged against states, localities, state and local government
entities, or state and local government officials and employees ... ," Anderson v. United States,
117 Fed. CL 330, 331 (2014); Smith v. United States, 99 Fed. CL 581, 583-84 (2011). Because
2 In the response and opposition to the government's motion to dismiss, plaintiff states that he is "taking
the precaution to 'strike[,]' the Henrico County [Virginia] police depmtment from the list of parties." Pl.
Resp. at 6. The Comt reads plaintiffs statement as a withdrawal of this claim.
8
the Henrico County Virginia Police Department is such a local government entity, the Court may
not ente1iain claims against the police depaiiment in this action.
2. The Court May Not Consider Plaintiffs Tort Claim
To the extent that plaintiff asserts claims against the United States in the complaint,
dismissal of plaintiffs negligence claim is also warranted because the Court does not possess
subject-matter jurisdiction to consider this claim. In the complaint, plaintiff alleges that "the
Defendants performed reprehensible Act(s), justifying for 'punitive damages[,]' that is reckless;
unreasonably risky without care for the risk to myself .... " Comp!. at ,r 57. Plaintiffs claim
plainly sounds in tort.
It is well-established that the Tucker Act explicitly places tmi claims beyond the
jurisdiction of this Court. 28 U.S.C. § 1491(a) ("The United States Comi of Federal Claims shall
have jurisdiction to render judgment upon any claim against the United States ... not sounding
in tort."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)
("The plain language of the Tucker Act excludes from the Comi of Federal Claims jurisdiction
[over] claims sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195,204 (2010)
("[T]he Tucker Act expressly excludes tort claims ... from the jurisdiction of the United States
Court of Federal Claims."). Indeed, plaintiff appears to acknowledge that the Court may not
consider his negligence claim and plaintiff clarifies in his response and opposition to the
government's motion to dismiss that he is no longer seeking punitive dainages nor asserting a
negligence claim in this action. Pl. Resp. at 4, 6. Given this, to the extent that the complaint
asse1is a tort claim against the United States, the Court dismisses this claim for lack of subject-
matter jurisdiction. RCFC 12(b)(l).
3. Plaintiffs Constitutional Claims Are Jurisdictionally Precluded
The Comi is also without jurisdiction to entertain plaintiffs constitutional law claims,
because the constitutional provisions upon which plaintiff relies are not money-mandating.
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). To pursue a substantive right
against the United States under the Tucker Act, plaintiff must identify and plead a money-
mandating constitutional provision, statute, or regulation; an express or implied contract with the
United States; or an illegal exaction of money by the United States. Cabral v. United States, 317
F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
9
Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302 (Fed. Cir. 2003). Plaintiff
cites to several constitutional provisions to support his claims in the complaint. Specifically,
plaintiff points to the Due Process; Commerce; Obligations of Contract (Article I, Section IO);
Privileges and Immunities; and Full Faith and Credit Clauses of the United States Constitution.
Comp!. at I; il~ 18-21. But, none of these constitutional law provisions are money-mandating.
With regards to plaintiffs substantive and procedural due process claims, the Federal
Circuit has long held that the Due Process clause does not obligate the government to pay money
damages. Collins v. United States, 67 F.3d 284,288 (Fed. Cir. 1995); see also Fry v. United
States, 72 Fed. Cl. 500, 507 (2006) (holding that the Fifth Amendment does not require the
government to pay monetary damages). The Federal Circuit has also held that the Commerce
Clause does not contain provisions that allow for a private paiiy to recover monetai·y damages.
Ballard v. United States, 680 F. App'x 1007, 1008-09 (Fed. Cir. 2017).
This Court has also held that Aliicle I, Section I 0, the Obligations of Contract Clause, is
not money mandating and that this clause applies only to individual states and not the United
States. See F1y, 72 Fed. Cl. at 508 (holding that the Obligations of Contract Clause is only a
limitation on government action but is not money-mandating); see also Yankee Atomic Elec. Co.
v. United States, 112 F.3d 1569, 1577 (Fed. Cir. I 997). Plaintiffs reliance upon the Privileges
and Immunities and Full Faith and Credit Clauses is also misplaced. The Federal Circuit has
held that the Privileges and Immunities Clause is not money-mandating. See Ivaldy v. United
States, 655 F. App'x 813, 815 (Fed. Cir. 2016) (holding that the Privileges and Immunities
Clause does not mandate payment). This Court has also recognized that the Full Faith and Credit
Clause is not money-mandating. See Republic a/New Morocco v. United States, 98 Fed. Cl.
463,468 (2011) (holding that the Full Faith and Credit clause does not mandate the payment of
money damages). And so, the Court must dismiss plaintiffs claims based upon these
constitutional law provisions for lack of subject-matter jurisdiction.
The Court must dismiss plaintiffs takings claim for lack of subject-matter jurisdiction,
because plaintiff fails to identify a cognizable property interest that has allegedly been taken by
the United States. Pl. Resp. at 4-5; see also 28 U.S.C. § 1491(a); Huntleigh USA Corp. v. United
States, 525 F.3d 1370, 13 77-78 (Fed. Cir. 2008). Plaintiff alleges in the complaint that Amtrak
took his private property by taking his train ticket for public use. Comp!. `` at 21, 25-26. But,
10
as discussed above, Amtrak is not a governmental agency or depattment of the United States.
Green v. United States, 229 Ct. Cl. 812,814 (1982); Slattery v. United States, 635 F.3d 1298,
1307 n.3 (Fed. Cir. 2011) (en bane). Plaintiff also fails to allege any facts in the complaint to
show that Amtrak was acting on behalf of the United States in connection with the conduct
alleged in the complaint. See generally Campi. And so, plaintiff simply has not identified a
cognizable property interest that has been taken by the United States and the Coutt must dismiss
his takings claim for want of subject-matter jurisdiction. RCFC 12(b)(l).
4. Plaintiff's Statutory Claim Is Jurisdictionally Precluded
Plaintiffs statutory claim is also problematic. In the complaint, plaintiff relies upon 19
U.S.C. § 1619 to support his claim for monetary damages against the government. 3 Comp!. at ,i,i
8-9 (alleging that Section 1619 is a "Liquidating Money-Mandating Compensation Statute for
3 Section 1619 provides, in relevant part, that:
(a) In general
If-
(!) any person who is not an employee or officer of the United States-
(A) detects and seizes any vessel, vehicle, aircraft, merchandise, or baggage subject to
seizure and fotfeiture under the customs laws or the navigation laws and repmts such
detection and seizure to a customs officer, or
(B) furnishes to a United States attorney, the Secretary of the Treasury, or any customs
officer original information concerning-
(i) any fraud upon the customs revenue, or
(ii) any violation of the customs laws or the navigation laws which is being, or
has been, perpetrated or contemplated by any other person; and
(2) such detection and seizure or such information leads to a recovery of-
(A) any duties withheld, or
(B) any fine, penalty, or forfeiture of prope1ty incurred;
the Secretary may award and pay such person an amount that does not exceed 25 percent of the net
amount so recovered.
19 U.S.C. § 1619(a).
11
purposes of ... invoking the Tucker Act"). But, plaintiff fails to show that Section 1619 is
money-mandating to establish jurisdiction under the Tucker Act.
Section 1619 addresses the award of compensation to government informers related to
seizures ofprope1iy effected by customs officers. 19 U.S.C. § 1619. The statute provides, in
relevant part, that the Secretary of the Treasury "may award and pay" to a government informer
"an amount that does not exceed 25 percent of the net amount" recovered by the government in
connection with the recovery of duties withheld, a fine, penalty, or forfeiture of prope1iy. 19
U.S.C. § 1619(a) (emphasis supplied). This Court and the Federal Circuit have long recognized
that the use of the word "may" in a federal statute creates a strong, but rebuttable, presumption
that Congress intended for the statute to discretionary. McBryde v. United States, 299 F.3d 1357,
1362 (Fed. Cir. 2002); see also Contreras v. United States, 64 Fed. Cl. 583, 593 (2005). The
Federal Circuit has also held that a statute that provides for "solely discretionary payment of
money does not give rise to a right to recover money damages from the United States." Roberts
v. United States, 745 F.3d 1158, 1163 (Fed. Cir. 2014) (quoting Adair v. United States, 648 F.2d
1318, 1322 (Ct. Cl. 1981) (internal quotations omitted)).
A plain reading of Section 1619 makes clear that this statute is discretionary and does not
mandate the payment of money. And so, plaintiffs reliance upon Section 1619 to establish
Tucker Act jurisdiction is misplaced and the Court dismisses plaintiffs statutory claim for want
of subject-matter jurisdiction. RCFC 12(b)(I).
5. Plaintiff Has Not Established A Contract With The United States
The Court must also dismiss plaintiffs breach of contract claim against the United States,
because plaintiff fails to establish the existence of an express or implied-in-fact contract with the
government. It is well-established that plaintiff bears the burden of proving the existence of a
contract with the government to bring a breach of contract claim in this Court. See D & N Bank
v. United States, 331 F.3d 1374, 1376 (Fed. Cir. 2003). To do so, plaintiff must allege facts in
the complaint that plausibly demonstrate: (I) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the part of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United
States, l 04 F.3d 1321, 1325 (Fed. Cir. 1997). Plaintiff fails to make such a showing here.
12
In the complaint, plaintiff alleges-without any factual support-that he has entered into
a contract with the United States and that the United States breached this contract. Comp!. at 7.
To the extent that plaintiff relies upon the ticket that he purchased from Amtrak to create the
alleged binding contract, such a contract is not with the United States. As discussed above,
Amtrak is not a governmental agency or department of the United States. Green, 229 Ct. Cl. at
814. Plaintiff also fails to allege any facts in the complaint to plausibly show: (I) mutuality of
intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual
authority to bind the government in contract on the part of the government official whose
conduct is relied upon, with regards to any contract with the United States. Kam-Almaz, 682
F.3d at 1368. Given this, the Court must dismiss plaintiffs breach of contract claim for lack of
subject-matter jurisdiction. RCFC 12(b)(1 ).
6. The Court Denies Plaintiff's Motion As Moot
As a final matter, the Comt must DENY plaintiffs motion for a default judgement as
moot. In his response and opposition to the government's motion to dismiss, plaintiff appears to
move for a default judgment against the government. Pl. Resp. at 10. Because the Court has
determined that it does not possess subject-matter jurisdiction to consider any of plaintiffs
claims, the Comt denies plaintiffs motion as moot. 4 See Wojtczak v. United States, No. 12-
449C, 2012 WL 4903025, at *4 (Fed. Cl. Oct. 17, 2012) ("Because plaintiff still has not raised
allegations over which this comt has jurisdiction, the comt denies these motions as moot.").
V. CONCLUSION
In sum, the most generous reading of the complaint makes clear that the Court does not
possess subject-matter jurisdiction to consider any of plaintiffs claims.
And so, for the foregoing reasons, the Court:
1. GRANTS the government's motion to dismiss;
4 The caption to plaintiffs response and opposition to the government's motion to dismiss also states that
plaintiff seeks to: amend the complaint; file a counterclaim; move to strike ce1tain information; assert an
inverse condemnation claim; and move to object to a rnling or order. PL Resp. at I. To the extent that
plaintiffs response and opposition can be constrned as a motion seeking any of the aforementioned relief,
the Comt also denies such motions as moot.
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2. DENIES-AS-MOOT plaintiffs motion for a default judgment; and
3. DISMISSES the complaint.
The Clerk shall enter judgment accordingly.
Each party shall bear its own costs.
IT IS SO ORDERED.
Judge
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