Barry v. United States

In the Um'ted States Court of Federal Claims
No. 18-1387T
(Filed: March 28, 2019)
(NOT TO BE PUBLISHED)
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JOHN W. BARRY, et al.,
Plaintiffs,
UNTTEDSTATES,
Defendant.
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John W. Ban‘y, pro se, Pemberton, NJ; Karrine N. Montaque, pro se, Valley Stream, NY;
Moses Nelson, pro se, Bridgeport, CT; Joel Adeyemi Omotosho, pro se, Bridgeport, CT; julio
Ruiz, pro Se, Bridgeport, C'f; Patricia Hinds, pro se, West l~laven, CT; Elba M. Viera Lopez, pro
se, Bridgeport, CT; Rosemarie M. Lastimado~Dradi, pro se, Ridgefleld, WA; Elvah Bliss
l\/liranda, pro se, Waipahu, HI; Daniel B. Miranda, pro se, Waipahu, HI; Marciaminajuanequita
R. T. Dumlao, Honolulu, HI; Rosalie O. Libanag, pro se, EWa Beach, Hl; Rodrigo B. Libanag,
pro Se, Ewa Beach, HI; Hannah K. Hart, pro se, Honolulu, Hl; Brigida E. Chook, pro se, EWa
Bcach, Hl; Michael T. Chocl<, pro Se, EWa Beach, HI; Leonicio Bautista, pro se, Honolulu, HI;
Scott F. I~lawver, pro se, Ewa Beach, HI; Beverly Braumuller-Hawver, pro se, Ewa Beach, HI;
Paul K. Meyer, pro Se, Kilauea, Hl.
Katherine R. Powers, Trial Attorney, Court of Federal Claims Section, Tax Division,
United States Department of Justice, Washington, D.C., for defendant With her on the motion
and brief Were Richard E. Zuckennan, Principal Deputy Assistant Attorney General, Tax
Division, United States Department of Justice, Washington, D.C., and David l. Pincus, Chief,
Court of F ederal Clairns Section, Tax Division, United States Departrnent of Justice,
Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Twenty plaintiffs have brought Suit in effect contending that the Internal Revenue Service
(“IRS”) Was and is Without authority to pursue the collection of tax against them. They identify
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nine separate causes of action premised on a variety of tort, constitutional, and statutory bases.l
The government has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the Rulcs of
the Couit of Federal Claims (“RCFC”) for lack of subject-matter jurisdiction United States’
Mot. to Dismiss (“Def.’s l\/Iot.”), ECF No. 134. Because the court lacks subject-matter
jurisdiction over the plaintiffs’ claims, the government’s motion to dismiss the complaint is
GRANTED. The remaining motions by the government and the plaintiffs are all DENIED as
moot.
BACKGROUND
This litigation commenced on September 7, 2018, When the twenty named plaintiffs filed
their complaint With the court. Compl., ECF No. l. Soon after the filing, however, the plaintiffs
moved to amend their complaint to add additional plaintiffs and causes of action. Pls.’ Mot. to
Arn. Sealed Compl. (“Arn. Compl.”), ECF No. 4.2 In the first amended complaint, the plaintiffs
allege nine claims against the federal government and a broad array of government officials in
their individual capacities See, e.g., Am. Cornpl. W 49 (naming the United States as a
defendant), 50 (naming the Secretary of the Treasury as a defendant), 51~89 (naming 39 other
government employees), 90 (naming 100 “unknovvn others” as defendants).
Specifically, the plaintiffs allege: (I) “intentional interference With the person [and]
invasion of privacy,” Arn. Compl. at 75-78; (II) “intentional interference With property, trespass
to land, trespass to chattels and chattel paper instruments,” Am. Compl. at 78-82', (ill)
“violations of procedural and fundamental due process of law pursuant to 5 U.S.C. § 552(a),
[and] the [Fourth], [Fifth], and [Fourteenth] Amendments [as Weil as to violations of state
constitutions] . . . ,” Am. Compl. at 82-84; (iV) “violations of civil rights . . . ,” Am. Compl. at
85~89', (V) “abuse of process,” Am. Compl. at 89-93; (Vi) violations of fvarious tax laws and
regulations] culminating in unlawful conduct of an enterprise through a pattern of racketeering
activity and mail fraud,” Am. Compl. 94-98; (Vil) “common law joint tortfeasor” liability, Am.
Compl. at 98-99; (VIII) “intentional infliction of emotional distress and mental anguish,” Am.
Compl. at 99-102; and (IX) “defamation, libel and slandei',” Am. Compl. at 102~04. Plaintiffs
seek monetary and equitable relief for each of these claims. Am. Cornpi. at 105-10.
'fhe catalyst for these claims Was a multitude of collection actions instituted by the iRS
from 2000 to 2017, along With a United States Tax Court decision related to some of the
collection actions. See Order of Dismissal for Lack of Jurisdiction, Barry v. ]RS Comm ’r, U.S.
lPlaintiffs have also filed a series of duplicative motions requesting ancillary relief,
including “Motion[s] to Claim and Exercise Constitutionaily Secured Rights and Privileges,”
e,g., ECF Nos. 15-33, 36-37, 43. “Motion[s] for Default Judgrnent,” e.g., ECF Nos. 63-65, 67-
82, 85, 89-90, “l\/Iotion[s] to Strike,” e.g., ECF Nos. 91, 94, 96, 98, 100-101, 103, 105, 107, 109-
110, 112, 114, and “Motion[s] for Sanctions,” e.g., ECF Nos. 150-151, 154, 156, 158.
2Plaintiffs’ first amended complaint is 944 pages long and does not include page
numbers Therefore, all citations to the first amended complaint Will refer to numbered
paragraphs or the ECF page number.
Tax Court, No. 9682-18 (July 23, 2018).3 Among other things, the plaintiffs contend that
because the 'l``ax Couit dismissed Mr. Barry’s petition for lack of jurisdiction, see e.g., Am.
Compl. ii 157, the IRS lacked jurisdiction to take any action regarding the several tax issues and
therefore acted Without authority. ln short, the plaintiffs contend that if the U.S. Tax Court lacks
jurisdiction over a tax issue, then any action taken by the IRS regarding that tax issue must be
outside the scope of the agency’s powers and therefore ultra vires.
The complaints Were initially filed under seal because they contained unredacted personal
information Accordingly, the government moved to require plaintiffs to file a redacted version
of the complaint that omitted all sensitive personal information, see Mot. . . . for a Redacted
Version of the Compl., ECF No. 6, arguing that “public access to judicial documents” is a
“common law right,” id. at 2 (citations omitted). The court granted the government’s motion on
November 20, 2018, and required the plaintiffs to “file redacted versions of their complaint, first
amended complaint, and second amended complaint that omit all personal information.” Order
OrNOV. 19, 2018, ECF No. iz.“
Additionally, two individual plaintiffs, Rosemarie M. Lastimado-Dradi and Paul K.
Meyer, filed notices With the court in vvhich they sought to act as representatives for other
plaintiffs See Notice of Rosemarie M. Lastimado-Dradi (Nov. 16, 2018), ECF No. 10, Notice of
Paul K. l\/leyer (Nov. 16, 2018), ECF No. ll. On November 19, 2018, the court denied
plaintiffs’ request, ruling that RCFC 83.1(a)(3) “limits the ability ofpro se plaintiffs to represent
other pro se litigants before this couit.” Order of Nov. 19, 2018, ECF No. 13.5 Subsequently,
plaintiffs filed numerous duplicative motions. See supra, at 2 n. l.
Proceedings in this case vvere suspended due to the lapse in government appropriations
for the Department of Justice, Which began on Decem'oer 2l, 2018. See Mot. for Stay of Case
Proceedings in Light of Lapse of Appropriations (Jan. 2, 2019), ECF No. 61; Order Granting in
Part and Denying in Part [Motion for Stay] (Jan. 7, 2019), ECF No. 62. Plaintiffs opposed the
suspension and thereafter filed various motions, asking the court to vacate its order suspending
the case and also to strike the government’s motion to stay. See, e.g., Mot. to Strike Mot. for
Stay, filed by Joel Adeyemi Omotosho (Jan. 22, 2019), ECF No. 9l; l\/lot. to Vacate Order on
Mot. to Stay, filed by Radames Rodriguez (Jan. 22, 2019), ECF No. l02.
The case resumed on January 31, 2019, after the restoration of funding See Notice of
Restored Appropriations, ECF No. 131. Soon thereafter, the government responded to the
3The collection actions included imposition of liens, levies on property, vvage
garnishment, and Seizing of assets for the non-payment of taxes or collection of taxes. See, e.g.,
Am. Compl. atli 139.
4On November 16, 2018, plaintiffs had filed a motion to further amend their complaint,
See ECF No. 9, and the court had not acted on that motion by November 19, 2018.
5Because the plaintiffs did not fall into one of the exceptions to RCFC 83.l(a)(3), the
court required that “each plaintiff in this case must be responsible for his or her own claims.”
Order of Nov. l9, 20l8, at 2. The court also noted that “RCFC 17 requires that ‘any action must
be prosecuted in the name of the real party at interest.”’ Id. (quoting RCFC 17(a)(l)).
3
plaintiffs’ numerous motions for default judgment by moving to dismiss the complaint for lack
of jurisdiction pursuant to RCFC l2(b)(l), ECF No. l34, and also by moving to amend the
caption to remove the names of individual defendants, ECF No. 132. The plaintiffs responded
by filing a flurry of their own motions and responses over the next month. See, e.g., Resp. to
Mot. to Dismiss, filed by Karrine N. l\/lontaque (Feb. 25, 2019), ECF No. 141; l\/lot. for
Sanctions Pursuant to Rule 11, filed by Moses Nelson (Feb. 27, 2019), ECF No. 151; Reply to
Resp. to l\/Iot. for Default ludgment, filed by Leonicio Bautista (Mar. 7, 2019), ECF No, 213.
ll``he government replied to the plaintiffs’ responses and responded to their motions for sanctions
on March 18, 2019, ECF Nos. 232, 233.
STANI)ARDS FOR DECISION
Rule ]2(1))(1) - Lack ofSubjecr-Matrer Jurisdz'ction
As a threshold matter, jurisdiction must be established before the court may proceed to
the merits of a case. Steel Co. v. Citizem‘for a Betrer Env ’t, 523 U.S. 83, 94 (1998). When
jurisdiction is challenged, the plaintiff bears the burden of establishing subject matter
jurisdiction M. Maropakis Cm'pentry, Inc. v, United States, 609 F.3d l323, 1327 (Fed. Cir.
2010). Although a pro se litigant is afforded some leniency as to legal formalities, this does not
relieve him or her from meeting his or her jurisdictional burden. Kelley v. Secretary, United
Sfafes Dep’t ofLabor, 8l2 F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucl463 F.3d 1328, 1333 (Fed. Cir. 2006). Thus, to establish
jurisdiction, a plaintiff is required to “point to a substantive right to money damages against the
United States.” Hamler v. United Sta.tes, 63 F.3d 1097, 1101 (Fed. Cir. 1995) (citing United
Si‘ates v. Testan, 424 U.S. 392, 398 (19'76)).
A complaint raising claims that are outside this court’s jurisdiction must be dismissed, for
the court has no adjudicative power over it. RCFC 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also Steel Co.,
523 U.S. at 94-95; Thoen v. United States, 765 F.2d l110, 1116 (Fed. Cir. 1985); Gray v. United
States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
ANALYSIS
A. Rule 12(b)(1) ~ Lack of Subject-Matter Jurisdiction
l. Coun!'s I, II, V, VH, VIIL and IXAllege Tort Claims and Cannot be Heara' by this
Court
“‘Federal courts are courts of limited jurisdiction,’ and [the Court of Federal Claims] is
no exception.” Gray, 69 Fed. Cl. at 98 (quoting RHI Holdi``ngs, Inc. v. United Srafes, 142 F.3d
1459, 1461) (Fed. Cir. 1998) (internal citation omitted)). And, for this court to have jurisdiction,
Congress must consent for the federal government to be sued through a waiver of sovereign
immunity. ld. (citing United States v. Whi'te Mounlaz'n Apache Tribe, 537 U.S. 465, 472 (2003)).
Sovereign immunity, as a principle, immunizes the government from civil liability or criminal
prosecution The government, however, has waived sovereign immunity in certain, defined
circumstances In interpreting these waivers, courts follow the “established practice of
construing Waivers of sovereign immunity narrowly in favor of the sovereign.” Id. at 102 (citing
La.ne v. Pena, 518 U.S. 187, 195 (1996)); see also Lane, 518 U.S. at 187 (“A waiver of sovereign
immunity must be unequivocally expressed in statutory text . . . will not be implied . . . [and] will
be strictly construed.”) (citations omitted)).
The 'l``ucker Act is one of the Waivers to the government’s sovereign immunity. “As
interpreted by the United States Supreme Court, the Tucl138 Fed. Cl. 1, l4 (2018) (citing United States v. Navajo Nalion, 556
U.S. 287, 289-90 (2009)) (other citations omitted). But the Tucl992 F.2d 1195, 1196-97 (Fed. Cir.
1993); see also Schillz``nger v. Uni!eal Sfares, 155 U.S. 163, 169 (1894) (“[C]ases sounding in tort
are not cognizable in the court of claims.”); Minehan v. United States, 75 Fed. Cl. 249, 259
(2007) (“['l``jhe Court of Federal Claims has no jurisdiction over claims which lie in toit.”); see
also 28 U.S.C. § 1491(a)(1). Congress, when enacting the Tucker Act, explicitly excluded tort
claims from the court’s jurisdiction 28 U.S,C. § 1491(a)(1) (Vestingjurisdiction in this court
for “any claim against the United States . . . not sounding in tort.”) (emphasis added). Thus, in
light of the express text of the Tucker Act, there is no question that this court cannot entertain
tort claims against the government
The plaintiffs have accused the government of a Wide variety of tortious conduct For
example, Count 1 alleges, “intentional invasion of person [and] privacy” through conduct by the
IRS, Am. Compl. at 75-78, while Count IX alleges “defamation, libel, and slander,” Am. Compl.
at 102-04. As Congress has not waived its sovereign immunity for this court to hear these and
similar tort claims, and Counts I, II, V, VII, Vlll, and IX of the plaintiffs’ complaint all plead
claims based on tolt, the court cannot hear these claims and they must be dismissed pursuant to
RCFC 12(b)(1) for lack of jurisdiction
2. Counrs IH, lI/f ana’ VI Can.not be Heard by this Court as they are Not Money~
Mandatfng
The plaintiffs’ other enumerated claims against the government are primarily
constitutional in nature Count IIl alleges “violations of procedural and fundamental due process
of law pursuant to 5 U.S.C. § 552(a), [and] the {Fouith], [Fifth], and {Fourteenth] Amendments.”
Am. Compl. at 82-84. Count IV alleges “violations of civil rights” pursuant to various statutes,
Bz``vens v. Si'x Unknown F ederal Narcotfcs Agenfs, 403 U.S. 388 (1971), and the Fourth and Fifth
Amendrnents. Am. Compl. at 85-89.
As previously stated, the Tucker Act is a jurisdictional statute that creates no substantive
right to money damages In re United States, 463 F.3d 1328, 1333 (Fed. Cir. 2006). To
establish jurisdiction, plaintiffs must “point to a substantive right to money damages against the
United States.” Hamlet, 63 F.3d at 1101 (citing Tesran, 424 U.S. at 398). Thus, a claim must be
money-mandating for this court to have jurisdiction under the Tucker Act. See Jan ’s Heli'copter
Serv., lnc. v. F.A.A., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cly. v. United
Srares, 487 F.3d 871, 876 (Fed. Cir. 2007)); see also fn re United Stares, 463 F.3d at 1333-34
(“A substantive law is money-mandating only if it ‘can be fairly interpreted as mandating
compensation by the [f]ederal [g]overnment for the damage sustained.”’) (quoting United Srates
v. Mitchell, 463 U.S. 206, 217 (1983)) (alteration added).
-Here, however, the constitutional provisions upon which the plaintiffs base their
complaint on are not money-mandating First, the Due Process Clause of the Fifth Amendment
is not money-mandating See In re United States, 463 F.3d at 1335 n.5 (“We agree that because
the Due Process Clause is not money-mandating, it may not provide the basis for jurisdiction
under the Tucl857 F.2d 770, 772-73 (Fed. Cir.
1988) (“{I]t is firmly settled that [the Due Process Clause of the Fifth Amendment] do[es] not
obligate the United States to pay money damagesl . . . [and] do not trigger Tucker Act
jurisdiction.”) (citations omitted)). Second, the Due Process Clause of the Fourteenth
Amendment is also not money-mandating See Sm.irh v. United States, 709 F.3d 1114, l116
(Fed. Cir. 2013) (“The law is well settled 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 1025, 1028 (Fed. Cir.
l995)); see also Ni``e v. United Srates, 124 Fed. Cl. 334, 341-42 (2015). Third, although the exact
basis of the plaintiffs’ Fourth Amendment claim is not apparent, this court is nevertheless
powerless to hear it. Mz'lgroom v. United States, 122 Fed. Cl. 779, 800 (2015) (“This court ij is
without jurisdiction to hear claims alleging violations of the Fourth Amendment.”) (citing,
among others, Roberson v. United States, 115 Fed. Cl. 234, 240 (2014) (“[T]he Fourth
Amendment is not money-mandating.”)) (other citations omitted). Accordingly, the
constitutional claims set out in Counts Ill and lV of the plaintiffs’ complaint must be dismissed
pursuant to RCFC l2(b)(1) for lack of jurisdiction
Plaintiffs also allege Bi``vens claims against the government for the “heavy handed
collection action[s] against the [p]laintiffs by seizing privacy property chattels and chattel paper
instrument bank accounts, garnishing paychecl105 F.3d 621, 624 (Fed. Cir. 1997). “In Bivens, the
Supreme Court held a party may, under certain circumstances, bring an action for violations of
constitutional rights against [g]overnment officials in their individual capacities.” Ial (citing
Bivens, 403 U.S. 388). This court, however, may only hear claims against the United States,
“not against individual federal officials.” Ial. (citing 28 U.S.C. § 1491(a)). Thus, all claims
based on Bivens in Count IV must be dismissed pursuant to RCFC 12(b)(1) for lack of
jurisdiction
Count lV further alleges violations civil rights pursuant to 28 U.S.C. § 1343(a) and 42
U.S.C. § l985. But like plaintiffs’ other claims, this court lacks jurisdiction to hear claims
arising under these statutes 28 U.S.C. § l343 (a)(3) “specifically provides for jurisdiction in the
United States District Courts,” not this court. Kortlana’er v. United States, 107 Fed. Cl. 357, 370
(2012). ln turn, this court cannot hear § 1985 claims. See 28 U.S.C. § 1343(a) (vesting district
courts With “original jurisdiction” for any civil action “[t]o recover damages . . . by any act done
in furtherance of any conspiracy mentioned in [42 U.S.C. § 1985]” and “[t]o redress the
deprivation, under color of any State law . . . of any right, privilege or immunity secured by the
Constitution of the United States.”)', see also Sharpe v. United States, 112 Fed. Cl. 468, 476
(2013) (“[J]urisdiction to hear such a claim [arising under 42 U.S.C. § 1985 in conjunction with
28 U.S.C. § 1343(a)] belongs exclusively to the district courts . . . and the Court of Federal
Claims is not a district court.”) (citing Lealfora’ v. United States, 297 F.3d 1378, 1382 (Fed. Cir.
2002) (per curiam)). Thus, all claims in Count lV relating to 28 U.S.C. § 1343(a) and 42 U.S.C.
§ 1985 must be dismissed pursuant to RCFC 12(b)(1) for lack ofjurisdiction.6
3. Civil Rico Class Actions Cannor be Mai``nlained Against the Government
Throughout their amended pleadings and motions, the plaintiffs refer to their complaint
as a “Verified Civil R.I.C.O. Complaint.” See, e.g. , Am. Compl. at 3. But any claims relating to
a civil RlCO action must also be dismissed “Established case law under RlCO makes it clear”
that neither the United States nor an agency of the United States can “commit a crime actionable
under RlCO.” Wolfv. United States, l27 Fed. Appx. 499, 500-01 (Fed. Cir. 2005). ln essence,
as the government “cannot be liable for criminal acts under RlCO . . . it cannot be liable for
damages under civil RlCO provisions.” ld. Accordingly, all claims in the complaint to a civil
RlCO action must be dismissed pursuant to RCFC 12(b)(l) for lack of jurisdiction
CONCLUSION
For the reasons stated, defendant’s motion to dismiss is GRAl\I'l``ED.7 The clerk shall
enter judgment in accord with this disposition
No costs.
lt is so ORDERED.
W%f’)
chair-aff Ijéaé»w
Senior ludge
6'1``his court also lacks jurisdiction over criminal claims, see Joslzua v. United States, 17
F.3d 378, 379 (Fed. Cir. 1994), and accordingly, the criminal allegations of Counts IV and Vl
cannot survive.
7All of the other pending motions are DENIED as moot.
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