Kabando v. United States

ORHffi$NAI
rJrtW @nfreu sttutts @owt of felersl
,,"J1.11;f!3l,o,o
HIEO
AUG 2I Zon
COURT OF
RENIECE L.W. KABANDO, -US.
FEDERAI
28 u.s.c. g l4el.ruckerA"rs$JUls
Plaintiff, Matter Jurisdiction. Rules of the Court of
Federal Claims 12(b)(1), Money-
mandating, District Court Jurisdiction
THE TINITED STATES OF AMERICA,
Defendant.
Reniece L.W. Kabando, Woodbridge, VA, Plaintiff, pro se.
Martin M. Tomlinson, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washinglon, D.C., for defendant. With him were
Stuart F. Delery, Assistant Attomey General, Robert E. Kirschman, -Ir., Director,
Steven J. Gillingham, Assistant Director.
OPINION AND ORDER
On July 1,2014, plaintiff, Reniece L.W. Kabando, appearing p1q se, frled a complaint, an
application to proceed in forma pggpggig, and an ex palte motion for declaratory and injunctive
relief.' Plaintiff contends that she is entitled to $99,333,720,368,547,800.00 from the
government pursuant to 18 U.S.C. $$ 1831-1839 (2012) and 15 U.S.C. $$ 631-657s (2012), and
15 U.S.C. g 6aa(gX1) because she is the sole owner ofa small business concem and is also a
socially and economically disadvantaged woman and minority. On July 15, 2014, plaintiff filed
a motion for leave to file an order to show cause as to "why the United States is now refusing
and why the court should not grant the official order as previously mandated by Congress" and
expressed her hope that "as Congress officially orders to do something, the Court of Federal
Claims will order to do the same." Mot. for Leave to File Proposed Order to Show Cause, ECF
No.5.
' Plaintiff s complaint in this action is virtually identical to an earlier complaint filed by plaintiff
before Judge Margaret M. Sweeney of this court. Kabando v. United States, No. l4-286C,2014
U.S. Claims LEXIS 265, 2014 WL 1577047 (Fed. Cl. April 21, 2014). That case was dismissed
for lack ofjurisdiction and plaintiff s motion for reconsideration ofthe order of dismissal was
denied.
The government has moved to dismiss the case for lack ofsubject matter jurisdiction.2
For the reasons discussed below, the Court concludes that it lacks jurisdiction to address
plaintiffs claims. Accordingly, the govemment's motion to dismiss is GRANTED.
The Court ofFederal Claims has jurisdiction under the Tucker Act to hear "any claim
against the United States founded either upon the Constitution, or any Act ofCongress or any
regulation ofan executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $
la91(a)(1) (2012), The Tucker Act waives the sovereign immunity of the United States to allow
a suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not
confer any substantive rights. United States v. Testan,424U.5.392,398 (1976). Therefore, a
plaintiffseeking to invoke the court's Tucker Act jurisdiction must identify an independent
source ofa substantive right to money damages from the United States arising out ofa contract,
statute, regulation or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation
Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act." Mitchell, 463 U.S. at 216. "[T]he claimant must demonstrate
that the source of substantive law he relies upon 'can fairly be interpreted as mandating
compensationbytheFederalGovemmentforthedamagessustained."'Id.at216-17(1983)
(quoting Testan, 424 U.S. at 400). While p1q se plaintiffs' pleadings are held to "less stringent
standards than formal pleadings drafted by lawyers," (Haines v. Kemer,404 U.S. 519, 520
(1972)), even pro se plaintiffs must persuade the Court that jurisdictional requirements have been
met. Bemard v. United States, 59 Fed. Cl. 497, 500 (2004), aff d,98 F. App'x 860 (Fed. Cir.
2004). Ifthe statute upon which plaintiff s claim rests is not money-mandating, the court must
dismiss the action because "the absence ofa money-mandating source [is] fatal to the court's
jurisdiction under the Tucker Act." Fisherv. United States,402F.3d1167,1173 (2005).
Reading plaintiff s complaint in the light most favorable to the plaintiff, the complaint
fails to plead any claims sufficient to invoke the jurisdiction of the Court of Federal Claims. The
statutes identified by plaintiff-l8 U.S.C. $$ 1831-1839, 15 U.S.C. $$ 631- 657s, and l5 U.S.C.
$ 64a(g)(1)-are not money-mandating. The Economic Espionage Act, 18 U.S.C. $$ 1831-
1839, is a criminal statute that prohibits theft of trade secrets and applies to foreign conductif
"an act in furtherance of the offense was committed in the United States." i8 U.S.C. $ 1837.
The Small Business Act, l5 U.S.C. $ 631-657s, states Congress' small business policy and
outlines a framework for small businesses to compete for govemment contracts. These statutes,
read together or alone, cannot be fairly interpreted to mandate the payment ofmoney, and
consequently this Court lacks jurisdiction to consider plaintiffs claims.
Plaintiff also cites 15 U.S.C. $$ l-2, the Sherman Antitrust Act. The Court does not have
jurisdiction over claims arising under the Sherman Antitrust Act. l5 U.S.C. $ 4 ("The several
district courts . . . are hereby invested with jurisdiction to prevent and restrain violations of
sections 1 to 7 of this title."). See also 28 U.S.C. $ 1337(a) (stating that the district courts have
2
The plaintiffhas not responded to the motion to dismiss or requested an extension of time to do
so.
original jurisdiction over "any civil action or proceeding arising under any Act of Congress
regulating commerce or protecting trade and commerce against restaints and monopolies");
Hufford v. United States, 87 Fed. Cl.696,703 (2009) (holding that violations ofthe Sherman
Antitrust Act axe within the exclusive jurisdiction of the district courts).
Plaintiff also filed a request to proceed in forma oauperis. To proceed in forma pauperis,
a plaintiffmust submit an affidavit that includes a list of all of their assets, a declaration that they
are unable to pay the fees or give the security for an attomey, and a statement ofthe nature of
theiractionandtheirbeliefthattheyareentitledtojudgment.28U.S.C.$1915(aX1)(2012).
Here, plaintiff satisfied these requirements, and the Court therefore grants her application to
proceed in forma pauperis.
For the reasons stated above, the Court GRANTS plaintiff s motion to proceed in forma
pauperis and DISMISSES plaintiff s complaint for lack of jurisdiction. PlaintifP s motion for
leave to file an order for the defendant to show cause is DENIED AS MOOT. The Clerk of the
Court is directed to enter judgnent accordingly.
The Clerk ofthe Court shall retum to plaintiff the following documents: "Response to
Defendant's 'No' Answer to the 'Motion For Leave to File Proposed Order to Show Cause"' and
"Motion for Leave to File Response to Defendant's 'No' Answer for the 'Motion for Leave to
File In Forma Pauperis,"' both received on August 25,2014
IT IS SO ORDERED.
ELAINE D. KAPLAN
Judge