MAY v. USA
Filing
16
PUBLISHED MEMORANDUM OPINION and FINAL ORDER denying 5 Motion to Transfer and request for interim attorney fees; and granting 11 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Signed by Judge Susan G. Braden. (dls) Copy to parties.
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No. I l-774 C
Filed: March 30,2012
TOBE PUBLISHED
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FILED
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MAR 3
MORRISMAY,
0
2012
u.s. cdJRT OFFEI'ENALCLAM
Plaintiff, pro se,
Failure To State Claim, RCFC l2(b)(6);
Jurisdiction, RCFC 12(b)(l);
Pro
TIIE LTNITED STATES,
Se:.
Summary Dismissal;
Tucker Act, 28 U.S.C. $ 1491 (2006);
Transfer,23 U.S.C. $ l63l (2006);
Federal Torts Claims Act, 28 U.S.C.
$2671 et. seq. (2006);
U.S. Const.. Art. III. Section 2.
Defendant,
and
GAIL JOHNSON,
Deputy Court CIerlg
United States Supreme Court,
Defendant.
i.
******+*,t
*:*,t {r*,t * * * * * * * * * * * * * * * * * * * * * * 't *
Morris May, Cincinnati, Ohio, Plaintiff, pro
se.
Alexis J. Echols, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.
MEMORANDUM OPINION AI\D FINAL ORDER
Braden, Judge.
I.
FACTUAL BACKCROUND AND PROCEDURAL HISTORY.'
On December 14, 2009, Morris May ("Plaintiff') received a traffic citation in Ohio,
which he apparently contested. See November 16, 2011 App. To Proceed In Forma Pauperis.
After an adverse ruling by an Ohio traffic court, Plaintiff appealed directly to the United States
Supreme Court on November 18, 2010 (Compl. tl 4), and did so again on June 13, 201
I
(Compl.
I The facts have been derived from the November 16,2011 Complaint ("Compl'"),
well
as other
filines submifted bv Plaintiff.
fl 6); July 6,2011 (Compl. fl 8); July 15,2011 (Compl. fl 10); and July 25, 2011 (Compl. u 12).
These appeals were styled as writs of mandamus to compel the Clerk of the United States
Supreme Court to accept Plaintifls appeals. Compl. fltl 4, 6, 8, 10, 12. On November 23,2010,
the Clerk of the United States Supreme Court retumed the November 18,2010 writ of mandqmus
to Plaintiff for failure to comply with a number of procedural requirements and because Plaintiff
did "not show how the writ will be in aid of the Court's appellate jwisdiction[.]" Compl. Ex. C.
PlaintifPs other "appeals" were retumed on June 16,2011 (Compl. Ex. D); July 12,2011
(Compl. Ex. E); July 21, 201 I (Compl. fl I 1); and August 2, 201 1 (Compl. tf 13); respectively,
for the same reasons.' Although the rejections were signed by the Clerk of the United States
Supreme Court, each docurnent indicated that it was prepared by the Deputy Clerk, Ms. Gail
Johnson. Compl. Exs. C-8.
On November 16, 2011, Plaintiff filed a pro se Complaint in the United States Court of
Federal Claims, alleging the United States and Ms. Johnson, in her capacity as Deputy Court
Clerk, "arbiharily and intentionally" discriminated against Plaintiff by denying him access to the
United States Supreme Court. Compl. flfl 5, 7, 9, 11, 13. The November 16,2011 Complaint
also alleges that Ms. Johnson was negligent in the performance of her duties. Compl. flfl 5, 7, 9,
11, 13.
In addition, the November 16,2011 Complaint alleges that Ms. Johnson's rejection of
Plaintiffs filings in the United States Supreme Court violated: Plaintiffs property rights under
the Fifth Amendment of the United States Constitution; Plaintiffs civil rights; Plaintiff s right of
of the First Amendment of the United States Constitution; and
PlaintifPs rights protected by the Equal Protection and Due Process Clauses of the Fifth and
Fourteenth Amendmenls of the United States Constitution. Compl. lTll 5, 7, 9, I l, 13. The
November 16,2011 Complaint further alleges that these violations were an "abuse of process"
that caused injury and damage to PlaintifPs property and civil rights and constituted an
intentional infliction of emotional distress. Compl. flfl 5,7,9, 1l, 13.
access under the Petition Clause
Finally, Count 6 of the November 16,2011 Complaint requests that the court "issue
wri.t of mandanzs to compel Ms. Johnson to perform the operational task and ministerial duty
frlingthe pro se plaintiff s May's [sic] legal paper or legal property[.]" Compl.fl14.
a
of
On December 9,2011, Plaintiff filed a Motion To Transfer, Expedite And Interim Award
Of Pro Se Attorney Fees ("P1. TR Mot.").' This motion requests that the court transfer Count 6
'The November 16,2011 Complaint includes copies of the letters from the Clerk of the
United States Supreme Court retuming Plaintiff s first three "appeals." Compl. Exs. C-E. The
Complaint indicates that copies of the letters retuming the fourth and fifth "appeals" were
included as Exhibits G and L Compl. flfl 11, 13. Exhibits G and I, however, were not included
with the November 16, 2011 Complaint or any subsequent filing.
3
The Govemment's response to Plaintiff s December 9, 2011 Motion To Transfer was
. On December 21, 2011, Plaintiff filed a document titled "Plaintiff s
Reply" arguing that Plaintiff was entitled to default judgment on the December 9, 2011 Motion
To Transfer because the Govemment failed to file a response to his "motion filed on November
29,2011." In fact, the docket shows that Plaintiff s Motion was filed on December 9,2011.
due on December 27 ,2011
(paragraph 14) of the November 16,2011 Complaint to the United States Supreme Court and
retain jurisdiction over the remaining counts of the Complaint. Pl. TR Mot. at 4. In addition, the
Motion requests "an interim award of pro se attomey fees for the services performed before the
Supreme Court of the United States[.]" Pl. TR Mot. at 6.
On January 17,2012, the Govemment filed an Opposition To Plaintiffs Motion For
Expedited Transfer And Interim Award Of Attorney Fees ("Gov't TR Opp.") and a Motion for
Summary Dismissal of Pro Se Complaint ("Gov't Mot."), arguing the court has no jurisdiction
over the claims set forth in the November 16, 201 1 Complaint. Gov't Mot. at 1. In addition, the
Govemment asserts that the November 16, 2011 Complaint fails to state a claim for which relief
may be granted. Gov't Mot. at L
On January 27,2012, Plaintiff filed a Reply to the Govemment's January 17,2012
Opposition To Plaintiff s Motion To Transfer, Expedite And Interim Award Of Pro Se Attorney
Fees ("P1. TR Reply"). On February 6, 2012, Plaintiff also filed a Response To The
Govemment's Motion To Dismiss ("P1. Resp.").
On February 24, 2012, the Govemment filed a Reply to Plaintiff s February 6, 2012
Response To The Govemment's Motion For Summary Dismissal ("Gov't Reply.").
On March 26, 2012, Plaintiff filed a Motion To Strike, Expedite, Transfer, And Interim
Award Of Pro,Se Attomey Fees, Costs, And Litigation Expenses. ("P1. Mot. II"). The March
26,2012 Motion effectively is a sur-reply to arguments raised in the Govemment's February 24,
2012 Reply. Pl. Mot. II at l-4 (responding to the Govemment's arguments). This Motion adds
little to the arguments advanced in Plaintiffs February 6, 2012 Response. In addition, the March
26, 2012 Motion requests that the court transfer any tort claims in the November 16, 2011
Complaint to the United States District Court for the Dishict of Columbia. Pl. Mot. II at 2.
Finally, Plaintiff s March 26, 2012 Motion argues that the Govemment's February 24, 2012
Reply was filed late and should be disregarded.a Pl. Mot. II at 4.
il.
JURISDICTION.
The jurisdiction of the United States Court ofFederal Claims is established by the Tucker
Act. See 28 U.S.C. $1491 (2006). The Tucker Act authorizes the court 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. $1491(axl) (2006).
Moreover, on December 27,2011, the Goverrunent filed a timely Motion for Extension of Time
that was granted by the court on December 28, 2011.
a
The docket reflects that the Govemment's reply was due by February 24,2012, i.e., the
filed. Under RCFC 7.2(b)(2), a party has 14 days to submit a
Reply in support of a Motion To Dismiss. When service is to be perfected by mail, as in thispro
se case, the deadline is extended by 3 days. ,See RCFC 6(d). Accordingly, the Govemment's
reply was due l7 days after PlaintifPs February 6, 2012 Response, i.e.,by February 24,2012.
same day that the Government
The Tucker Act, however, is 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 it whenever the substantive right exists." United States v. Testan,424 U.S.
392, 398 (1976). Therefore, a plaintiff must identifr and plead an independent contractual
relationship, constitutional provision, federal statute, or executive agency regulation that
provides a substantive right to money damages. See Fisher v. United States,402 F.3d 1167,
1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act itself does not create a substantive cause of
action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a
plaintiff must identiff a separate soruce of substantive law that creates the right to money
damages."). The burden of establishing jurisdiction falls on the plaintiff. See FWPBS,
Inc. v. Dallas,493 U.S. 215,231(1990) (holding that the burden is on the plaintiffto allege facts
sufficient to establish jurisdiction (quoting McNutt v. General Motors Acceptance Corp., 298
U.S. 178, 189 (1936))); see a/so RCFC 12(bX1).
The jurisdictional defects
in Plaintiffs November 16,2011 Complaint are
discussed
below.
DISCUSSION.
A.
Standards For Decision On Motion To Dismiss.
l.
UnderRCFC 12(bxl).
A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law . . is properly raised by a [Rule] 12(bX1) motion[.]"
Palmerv. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive
pleading. . . . [b]ut a party may assert the following defenses by motion: (1) lack ofjurisdiction
over the subject matter[.]"). When considering whether to dismiss an action for lack of subject
matter jurisdiction, the court is "obligated to assume all factual allegations ofthe complaint to be
tnre and to draw all reasonable inferences in plaintiffs favor." Henke v. United States, 60 F.3d
795,797 (Fed. Cir. 1995).
Nonetheless, the plaintiff bears the burden of establishing jurisdiction by a preponderance
of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,846 F.2d 746,748 (Fed. Cir.
1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put in question . . . [the plaintiffl
bears the burden of establishing subject matter jurisdiction by a preponderance of t}re
evidence.").
2.
Under RCFC l2(b)(6).
A challenge to the United States Court of Federal Claims' "[ability] lo exercise its
general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule]
12OX6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC 12(bX6) ("Every defense to a
claim for relief in any pleading must be asserted in the responsive pleading . . . . [b]ut a party
may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief
can be granted[.]").
When considering whether to dismiss an action for failure to state a claim, the court
"must assess whether the complaint adequately states a claim and whether plaintiffs can allege
facts plausibly suggesting (not merely consistent with) a showing of entitlement to relief."
Hutchens v. United States, 89 Fed. Cl. 553, 562 (2009) (intemal citations omitted). The
plaintiffs factual allegations must be substantial enough to raise the right to relief "above the
speculative level," accepting all factual allegations in the complaint as true and "indulg[ing] all
reasonable inferences in favor of the non-movant." Hutchens,89 Fed. Cl. at 562 (citing Bell Atl.
Corp. v. Twombly,550 U.S. 544,555 (2007)).
B.
Standard Of Review For Pra
,Se
Litigants.
The pleadings of a pro se plaintiff are held to a less stringent standard than those of
litigants represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (1972) (holding that
pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers" (citations omitted) (internal quotation marks omitted)). It has been
the tradition of this court to examine the record "to see ifa pro se] plaintiffhas a cause ofaction
somewhere displayed." Ruderer v. United States, 412 F.zd 1285, 1292 (Ct. Cl. 1969).
Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs complaint, the court
"does not excuse [a complaint's] failures." Henke,60F.3dat799.
C.
Defendant's January 11,2012 Motion For Summary Dismissal.
1.
The Government's Argument.
The Govemment argues that the court does not have jurisdiction to adjudicate the claims
alleged in the November 16,2011 Complaint. Gov't Mot. at 4-6. A claim must be grounded
upon a money-mandating statute or constitutional provision to be subject to the jurisdiction of
the United States Court of Federal Claims. See United States v. Testan,424U.S. at398. None
of the claims adequately alleged in the November 16, 2011 Complaint, however, rely upon
money-mandating provisions.
The November 16, 2011 Complaint alleges claims under a number of constitutional
provisions, including the Petition Clause of the First Amendment of the United States
Constitution, the Takings Clause of the Fifth Amendment, and the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. Compl. flfl 5, 7, 9, 11, 13. The First
Amendment, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Equal
Protection Clause of the Fourteentl Amendment, however, are not money-mandating, and it is
settled that the United States Court of Federal Claims does not have jurisdiction to adjudicate
claims based upon these constitutional provisions. See, e.g., Crocker v, United States, 125 F.3d
1475, 1476 (Fed. Cir. 1997) ("The Court of Federal Claims correctly concluded that it does not
have jurisdiction to hear [Plaintiff s] due process or seizure claims under the Fifth Amendment to
the United States Constitution;'); LeBlanc v. United States" 50 F.3d 1025,1028 (Fed. Cir. 1995)
(holding the Due Process Clause and Equal Protection Clause not to be money-mandating);
United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) ("[T]he [F]irst [A]mendment,
standing alone, cannot be so interpreted to command the payment of money."). Accordingly,
Counts I through 6 should be dismissed.
The November 16, 2011 Complaint also alleges claims for property damage, intentional
infliction of emotional distress, misrepresentation, negligence, and a violation of Plaintiffs civil
rights over which the court does not have jurisdiction. Compl. flfl 5, 7, 9, 11, 13. The United
States Court ofFederal Claims also cannot adjudicate these claims, because they sound in tort or
arise under 28 U.S.C. $$ 1981-85. See, e.g., Marlin v. United States,63 Fed. Cl. 475, 476
(2005) (holding that the United States Court of Federal Claims does not have jurisdiction over
statutory civil rights claims); Brown v. United States, 105 F.3d 621,624 (Fed. Cir. 1997) (same
re: torts).
Nor does the court have jurisdiction to gant the declaratory, injunctive, or punitive relief
requested by Plaintiff. See James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (holding that
the United States Court of Federal Claims does not have authority to issue declaratory or
injunctive relief other than in the context of bid protests); Mitchell y. United States,230 Ct. Cl.
827,827 (1982) (same re: punitive damages)).
Moreover, all claims alleged against Ms. Johnson, in her personal capacity, also must be
dismissed, because the United States Court ofFederal Claims does not have jurisdiction over any
defendant, except the United States. See United States v. Sherwood,3l2 U.S. 584, 588 (1941)
("[R]elief sought . . . against others than the United States , . . must be ignored as beyond the
jurisdiction of the [Court of Claims.]").
In addition, the Govemment also observes that, to the extent the November 16, 2011
Complaint asserts a Fifth Amendment takings claim, it fails to state one on which relief may be
granted, because it fails to allege any seizure or taking of PlaintifFs property or a regulatory
imposition on Plaintiff s property. Gov't Mot. at 6.
2,
Plaintif?sResponse.
Plaintiff responds that the Govemment's argument that the Due Process Clause of the
Fifth Amendment is not money-mandating is irrelevant, because the November 16, 2011
Complaint does not rely on the Due Process Clause of the Fifth Amendment. Pl. Resp. at 6.
Instead, the claim at issue relies on the Petition Clause of the First Amendment, the Equal
Protection and Due Process Clauses of the Fourteenth Amendment, and the Privileges and
Immwrities Clause. Pl. Resp. at 7.
Plaintiff also insists that the claims alleged under 42 U.S.C. $$ 1981, 1982 and 1988(b)
are money-mandating. Pl. Resp. at 7.
Likewise, the Govemment is incorrect that the United States Court of Federal Claims
does not have jurisdiction over the November 16,2011 Complaint's misrepresentation claims.
Pl. Resp. at 9-10 (citing cases from other federal courts, not subject to the Tucker Act, that have
adjudicated claims of negligent misrepresentation).
Plaintiff lhrther argues that the November 16,2011 Complaint adequately has stated a
Fifth Amendment takings claim against Ms. Johnson because Plaintiff had a property interest in
the legal papers that he attempted to file with the United States Supreme Court, the rejection of
which constitutes a taking. Pl. Resp. at 12.
Finally, tlle Govemment's argument that the United States Court of Federal Claims may
only adjudicate claims against the United States, not Ms. Johnson, is incorrect. Pl. Resp. at 14
(citing no relevant authority).
3.
The Government's Reply.
The Govemment replies that Plaintiffs Response fails to address the substantive
deficiencies identified in the January 17, 2012 Motion For Summary Dismissal. Gov't Reply at
Instead, Plaintiff restates the allegations made in the November 16, 2011 Complaint and
summarily concludes that the United States Court of Federal Claims has iurisdiction over those
claims. Gov't Reply at2,
l.
As to the takings claims alleged, the November 16,2011 Complaint does not articulate a
cognizable property interest that was taken by the Govemment. Gov't Reply at 3. In fact,
Plaintiff acknowledges that the Clerk of the United States Supreme Court retumed all of
Plaintiffs papers. Gov't Reply at
As to the remaining allegations, they are
"conclusory. . . unsupported by any factual assertions [and] will not withstand a motion to
dismiss." Briscoev. LaHue,663F.2d,713,723 (7rh Cir. 1981), af'd,460 U.S.325 (1983).
3-4.
4.
The Court's Resolution,
As a threshold mafter, Congress did not authorize the United States Court of Federal
Claims to adjudicate claims under the First or Fourteenth Amendments, the Due Process Clause
of the Fifth Amendment, or the Privileges and Immunities Clause, because none of those
provisions are money-mandating. ,See LeBlanc v, United States, 50 F.3d 1025, 1028 (Fed. Cir.
1995) (holding that the Due Process Clauses of the Fifth and Fourteenth Amendments and the
Equal Protection Clause of the Fourteenth Amendment do not provide "a sufficient basis for
jurisdiction [under the Tucker Act,] because they do not mandate payment of money by the
[G]ovemment"); United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) ("[T]he [F]irst
[A]mendment, standing alone, cannot be so interpreted to command the payment of money.");
McCullough v. United States,76 Fed. Cl. 1, 4 (2006) (determining that the United States Court
of Federal Claims does not have jurisdiction over claims based upon the Privileges and
Immunities Clause). Thus, to the extent that Plaintiff s November 16,2011 Complaint alleges
claims under these constitutional provisions, they must be dismissed, pursuant to RCFC l2(bX1).
Likewise, Congress did not authorize the United States Court of Federal Claims to
adjudicate alleged violations of42 U.S.C. $$ 1981, 1982, 1985 and/or 1988, because this court is
not a "district court" and only United States District Courts have subject matter jurisdiction to
adjudicate statutory civil rights claims. See 28 U.S.C. 913a3(a) (authorizing "district courts" to
adjudicate claims); see also Anderson v. United States,22 Cl. Ct. 178, 179 n.2 (1990) ("[T]his
court has . . . no jurisdiction over cases arising under the Civil Rights Act."), aff'd,937 F.2d 623
(Fed. Cir. l99l) (table); see also llillis v. United States,96 Fed. Cl. 467 , 470 (201 1) ("lt is wellsettled that jurisdiction for civil rights claims, including section 1985 claims, lies exclusively in
the district courts; not in the Court of Federal Claims."). Therefore, to the extent the November
16,2011 Complaint alleges claims under these statutory provisions, they must be dismissed as
well, pursuant to RCFC l2(b)(1).
Plaintiff also may not appreciate that the court does not have jurisdiction over claims
against any defendants other than the United States. See Sherwood,312 U.S. at 588 ("[I]t has
been uniformly held, upon a review of the statutes creating the [United States Court of Claims]
and defining its authority, that its jurisdiction is confined to the rendition of money judgments in
suits brought for that relief against the United Slates, and if the relief sought is against others
than the United States the suit as to them rnust be ignored as beyond the jurisdiction of the
court.")r see also Brown v. United States, 105 F.3d 621,624 (Fed. Cir. 1997) ("The Tucker Act
$ants the Court of Federal Claims jurisdiction over suits against the United States, not against
individual federal officials."). Therefbre, all claims in the November 16,2011 Complaint against
Ms. Johnson in her personal capacity must be dismissed, pursuant to RCFC I 2(bX I ).
To the extent the November 16,2011 Complaint's claims against Ms. Johnson are
directed towards her actions in her official capacity, they are claims of negligence,
misrepresentation, and intentional infliction of emotional distress "sounding in tort" over which
the court also does not have jurisdiction under the Tucker Act. See28U.S.C. $1a91(a)(1)("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." (emphasis
added)).
As for Plaintiff s argument that the November 16,2011 Complaint alleges takings, rather
than a series of tortious acts, Plaintiff misapprehends the nature of the Takings Clause of the
Fifth Amendment of the United States Constitution, A taking arises only when the Govemment
appropriates private property or imposes a regulatory constraint that adversely affects an owner's
continuing use of property. See Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S.419,
426-28 (1982) (comparing physical and regulatory takings). The facts alleged in the November
16,2011 Complaint, generously read, do not state a claim that Ms. Johnson, acting on behalf of
the United States, appropriated Plaintiffs property or acted pursuant to a regulation that
constrained the use ofhis property. Plaintiff is correct that his legal papers are his property, but
the Govemment did not appropriate them nor constrain their use by Plaintiff. Accordingly, the
takings claims alleged in the November 16, 2011 Complaint must be dismissed, pursuant to
RCFC 12(bX6).
The November 16,201I Complaint also appears to allege that the court has jurisdiction,
pursuant to 31 U.S.C. $ 1304 (Compl. !f 3), which appropriates frrnds "to pay final judgments,
awards, compromise settlements, and interest and costs specified" in court judgments when
certain otler conditions are met. See 31 U.S.C. $1304 (2006). Congressional appropriations,
however, do not establish jurisdiction in the United States Court of Federal Claims. See Samish
Indian Nation v. United States, 657 F.3d 1330, 1334 (Fed. Cir. 2011) (affirming trial court's
determination that appropriations are "merely a budgetary mechanism . . . [and] could not
impose a money-mandating duty on the Govemment."). As such, 31 U.S.C. $ 1304 provides no
jurisdictional basis for the November 16, 2011 Complaint.
Finally, the November 16, 2011 Complaint alleges that the court has jurisdiction,
pnrsuant to 28 U.S.C. $$ 1961, 2412, and 2516. These provisions entitle a prevailing plaintiff to
attorney fees,) but are not "money mandating" for the purpose of establishing the court's subject
matter jurisdiction.
D.
Plaintil?s December 9, 2011 Motion To Transfer, Expedite, And Interim
Award Of Pro Se Attorney
1.
Fees.
Plaintiff s Argument.
Plaintiff s December 9, 201 1 Motion To Transfer requests that Count 6 of the November
16,2011 Complaint be transferred "in the interests of justice" to the United States Supreme
Court, because Count 6 seeks a writ of mandamus compelling the Clerk's Office of the United
States Supreme Cou to accept Plaintiffs petition, and this court has no supervisory authority
over the Clerk of the United States Supreme Court. Pl.TRMot.at4(citing28U.S.C. $ 1631).
The December 9, 201 1 Motion also seeks an interim award of pro se attomey fees for the
time Plaintiff spent preparing filings in this case and before the United States Supreme Court. Pl.
TR Mot. at 8, 1l-12 (citing more than 980 hours in research and preparation that is atlributable to
Ms. Johnson's "abuse of process").
2.
The Government's Response.
The Govemment responds that PlaintifPs request to transfer Count 6 of the November
16,2011 Complaint should be denied because 28 U.S.C. $1631 only permits transfer to another
court, not to the Office of the Clerk. Gov't TR Opp. at 2. Although this request is styled as a
motion to "transfer," Plaintiff actually requests the United States Court of Federal Claims compel
the Clerk of the United States Supreme Court to accept Plaintiff s petitions. .1d. The courthas no
authority to grant injunctive relief, other than in the bid protest context. 1d
5
28 U.S.C. $ 1961 (2006), provides: "Interest shall be allowed, computed, and paid on
judgments of the United States Court of Federal Claims only as provided in . . . any other
provision of law."
28 U.S.C. S 2412 (2006), provides: "Except as otherwise specifically provided by statute,
a judgment for costs . . .may be awarded to the prevailing party in any civil action brought by or
against the United States or any agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action."
28 U.S.C. $ 2516 (2006), provides: "Interest on a claim against the United States shall be
allowed in a judgment of the United States Court of Federal Claims only under a contract or Act
ofCongress expressly providing for payment thereof."
Moreover, Plaintiffs December 9, 2011 Motion To Transfer must be denied because 28
U.S.C. $ 1631 requires that the transferee court have jurisdiction over the clum. See Rick's
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1347 (Fed. Cir. 2008) ("The plain
language of [$ 1631] requires that the transferee court have jurisdiction over the claim."). The
nature of the claim set out in Count 6 of the November 16, 201 I Complaint, however, does not
fall within the list ofrights enumerated in Article III of the Constitution, Section 2, Clause 2, and
28 U.S.C. $ 1251, and therefore does not fall within the jurisdiction of the United States Supreme
Court. Gov't TR Opp. at 3.
As to Plaintiff s request for "interim attomey fees," the Govemment responds Ihat pro se
litigants are not entitled to attomey fees under 28 U.S.C. $ 2412, because fee-shifting remedial
statutes are designed to provide an adequate economic incentive for private attomeys to take
cases. Gov't TR Opp. at 3.
3.
Plaintiff
s
Reply.
Plaintiff replies that the court should grant the December 9, 2011 Motion To Transfer,
because the United States Supreme Court has exclusive jurisdiction to compel Ms. Johnson, as
an employee of the United States Supreme Court, to perform her duties. See
Grffinv. Thompson, 43 U.5.244,257 (1844) ("There is inherent in every court a power to
supervise the conduct of its officers, and the execution of its judgments and process.").
Moreover, the Govemment "erroneously" cites Rick s Mushroom for the proposition that 28
U.S.C. $ 163l requires the transferee court to have jurisdiction over the claim. Pl. Opp. Replyat
3. Rick's Mushroom is distinguishable, because it involved potential transfer to a United States
District Court of a professional negligence claim. Id.
3.
The court should award Plaintiff interim attomey fees. Pl. Opp. Reply at
The
Govemment's argument that pro se litigants are not entitled to attomey fees under 28 U.S.C.
$ 2412 is incorrect, as several courts have awarded attomey fees to pro Je litigants. Pl. Reply at
4-7 (discussing numerous cases where pro se plaintiffs have been awarded liquidated damages
and where attomey fees have been granted to pro se litigants who later sought counsel, or to pro
se parties who were previously represented by counsel).
4,
The Court's Resolution.
As a matter of law, it would be improper for the court to transfer Count 6 of the
Complaint to the United States Supreme Court. .See 28 U.S.C. g 1631. Plaintiff s underlying
concem appears to be a traffic ticket that he was unsuccessful in defending against in a state
court. The United States Supreme Court, however, does not have jurisdiction directly to review
a state traffic court's determination that Plaintiff violated the traffic laws of Ohio. See U.S.
Const., Art. III, Section 2, cl. 2 (stating the limits of the United States Supreme Court's
jurisdiction, and providing no basis on which the Court would have jurisdiction to review a state
court's judgment that a state resident is guilty of a traffic violation, absent constitutional
violations in the underlying proceedings); 28 U.S.C. $ 1257 (2006) (authorizing discretionary
review by the United States Supreme Court of a state court's judgment only if the judgment is
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"rendered by the highest court ofa State in which a decision could be had"). As such, transfer
would not be in the "interest ofjustice." 28 U.S.C. $ 1631.
The United States Supreme Court also has made clear that pro se plaintiffs are not
entitled to attorney fees. See Kay v. Ehrler,499 U.S. 432, 435 (1991) ("The Circuits are in
agreement . . . on the proposition lhat a pro se litigant who is not a lawyer is nor entitled to
attomey's fees. . . . [W]e are . . . satisfied that [these cases] were conectly decided."); see also
Hauschild v. United States,53 Fed. Cl. 134, 146 (2002) ("Under [28 U.S.C. $ 2412], pro se
litigants are not entitled to recover attomeys' fees."). None of the cases cited by Plaintiff involve
fees awarded to a pro se litigant for time spent by the litigant. See, e.g., Augustine v. Dep't of
Veterans Affairs, 503 F.3d 1362, 1367 (Fed. Cir. 2007) (granting attorney fees where a case was
frled pro se, but subsequently counsel was retained); Liberman v. Barnhart, No.05-5591,2006
U.S. App. LEXIS 9789 (2d Cir. April 14,2006) (adjudicating a plo se appeal requesting more
attomey fees than those awarded by the trial court, but the attorney fees at issue were for work
previously performed by counsel in the original ca.se); see also Liberman v. Barnhart, CY 980494 at 13-15 (E.D.N.Y. Sept. 29, 2005) (detailing counsel's work and justiffing attomey fees).
Moreover, attomey fees are only awarded under 28 U.S.C. $ 2412 to prevailing plaintifs. See
28 U.S.C. $ 2al2(a\l) ("fees and expenses of attomeys, may be awarded to the prevailing party
in any civil action brought by or against the United States[.]" (emphasis added)). Since the court
does not have jurisdiction to adjudicate the allegations alleged in the November 16,2011
Complaint and the allegations regarding the Takings Clause do not establish the govemmental
taking of a cognizable property interest, Plaintiffs request for interim attomey fees must be
denied.
E,
Plaintilfs March 26, 2012 Motion To Transfer Tort Claims To The United
States District Court For The District Of Columbia,
On March 26,2012, Plaintiff filed a Motion To Transfer any claims that the court deems
to be torts to the United States District Court for the District of Columbia. The court has
determined that such a transfer would not be "in the interest of justice." 28 U.S.C. $ 1631.
Moreover, to the extent that Plaintiff s tort claims are directed against Ms. Johnson in her
personal capacity, a federal district court would lack jurisdiction, because "[t]he . . . Clerk ofthe
United States Supreme Court has absolute quasi-judicial immunity [when] his [or her]
challenged activities [are] an integral part of the judicial process." Sharma v. Stevas, 790 F.2d
1486, 1486 (9th Cir. 1986); see also Guess v. Clerk, United States Supreme Court, 107 F.3d 922,
922 (D.C. Cir. 1997) (per curiam) (unpublished table opinion) ("[T]he Clerk of the Supreme
Court has absolute immunity while performing his official (quasi-judicial) functions." (citing
Sharna)). To the extent Plaintiff s tort claims are directed against Ms. Johnson in her ministerial
capacity, they could be filed only pursuant to the Federal Torts Claims Act ("FTCA"). See 28
U.S.C. $ 2671 (2006) (stating that the FTCA applies to judicial branch employees). Federal
district courts do not have jurisdiction over an FTCA claim unless the plaintiff has "first
presented the claim to the appropriate Federal agency[.]" 28 U.S.C. $ 2675(a) (2006).
Accordingly, since the "record is devoid . . . ofany suggestion that [Plaintif{l complied with any
of the procedures governing the filing of an administrative claim with [the relevant federal
agencyl," a federal district cout would not have jurisdiction over Plaintiffs potential FTCA
11
claims. See Rasulv. Myers,5l2F.3d644,661 (D.C. Cir.2008), vdcated on other grounds,555
u.s.
IV.
1083 (2008).
CONCLUSION.
For the reasons discussed herein, the Govemment's January 17, 2012 Motion For
Summary Dismissal is granted. See RCFC 12(bX1) and (6). Plaintiffs request that portions of
the November 16, 2011 Complaint be transferred to the United States Supreme Court or the
United States District Court for the District of Columbia are also denied, as is the request for
interim attomey fees. As this Memorandum Opinion and Final Order resolves all of Plaintiff s
claims, the Clerk of the Court is directed to enter judgment disrnissing all claims other than
takings claims asserted in the November 16, 2011 Complaint for lack of jurisdiction and final
judgrnent dismissing Plaintiffs takings claims for failure to state a claim.
IT IS SO ORDERED.
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