DAVIS v. USA

Filing 7

PUBLISHED OPINION granting 4 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (dls) Copy to parties.

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No. 13-60C
December 12,2013
*+******
DUANE GERALD DAVIS, SR.,

Plaintiff,
v.

FILED

T

DEC 1 2 2013

,H;?8oo'u8lo?fit

* &, Se Plaintiff; Motion to
* Dismiss; Lack of Subject Matter
* Jurisdiction.

UNITED STATES,

Defendant.
****t********

Duane Gerald Davis, Sr., Owings Mills, MD, pro se.

Gregg P. Yates, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, Washington D.C., for defendant. With him was Bryant G. Snee,
Acting Director, Gommercial Litigation Branch, Civil Division.

OPINION
HORN. J,

E

Duane Gerald Davis, Sr., a pro
plaintiff, filed the case currently before the
court and titled his complaint: "COMPLAINT FOR FRAUD, UNLAWFUL CONVERSTON,
BREACH OF FIDUCIARY DUTY, COLLUSION, NEGLIGENCE, AND TORTIOUS
INTERFERENCE.' (capitalization in original). Plaintiff alleges that his comptaint
constitutes a "corruption and.negligence protest." The complaint sets forth allegations
against multiple defendants' for corruption and negligence, and seeks a writ of

I

In his pro se complaint, plaintiff lists the following people and entities as defendants:
"THE UNITED STATES, THE State of Maryland, Governor Martin O'Malley, Baltimore
County Police Chief James W. Johnson, Baltimore City State's Attorney Gregg L.
Bernstein, and Baltimore county state's Attorney scott D. schellenberger, in their
official capacities and as individuals." (capitalization in original).
Pursuant to Rule 10(a) of the Rules of the United States Court of Federal Claims
(RCFC) (2013), all claims in the United States Court of Federal Claims must have "the
United States designated as the party defendant." RCFC 10(a); see also 28 U.S.C S
1491(a)(1) (2006). The United States Supreme Court has indicated, for suits filed in the

Mandamus for the return of personal property, alleging "theft of Plaintiffls property, as
well as his identity."
Plaintiff alleges "[t]hat the Baltimore County Police Department by and through
the Office of the State's Attorney of Baltimore County" searched his property, pursuant
to a "purported search warrant that was never served on Duane Gerald Davis, Sr.," and,
therefore, that they are "are in unlaMul possession" of his property. Plaintiff alleges that
the state government is "under a lawful duty" to return his property, which includes "a
1999 Charcoal Grey Chevrolet Suburban; A Daily Diary from 1986 made of yellow legal
papers; Black Legal Briefcase with legal material, as well as Private Business
Organizational and Tax Papers; a Video Camera; a Digital Camera; SD Cards; (9)
Video Documentaries and Video Film, a book entitled 'The Minority Report' by Duane
'Shorty' Davis; and various keys." Plaintiff estimates that the value of his confiscated
property is $250,000.00. In addition, plaintiff alleges that the defendants he named
illegally detained him "due to prejudice and discrimination," because, plaintiff alleges,
the defendants he named were aware that plaintiff was making a documentary about
racism in the American judicial system. In his complaint, plaintiff states that he
"incorporates a collection of public videos made by him and others, as evidence in this
case. "

Throughout his complaint, plaintiff alleges a number of constitutional claims,
including violation of plaintiffs rights under the First, Fourth, Fifth, and Sixth
Amendments to the United States Constitution. Plaintiff also alleges that the Baltimore
County State's Attorney violated his general Due Process rights. Although plaintiff
never identifies himself as disabled, or indicates the nature of any disability, he alleges
that his constitutional rights were violated, conflating that with a disability. Plaintiff,
therefore, gives a significant amount of attention in his complaint to discussing the rights
of the disabled, including references to Title ll of the Americans with Disabilities Act, 42
U.S.C. SS 12131-12165 (2006), which plaintiff states is intended to facilitate "ensuring
that individuals with disabilities have equal and effective access to the judicial system."
Plaintiff requests "[a]ctual or statutory damages, trebled, for the violations . . . I;l
[a]ctual damages and punitive damages in an amount to be proven at trial for the

United States Court of Federal Claims and its predecessors, "if the relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdictionofthecourt." UnitedStatesv.Sherwood,312U.S.5S4,5SS(1941)(citation
omitted). stated differently, "the onlv proper defendant for any matter before this court
is the United States, not its officers, nor any other individual." Stephenson v. United
States,58 Fed. Cl. 186, 190 (2003) (emphasis in originat); see also United States v.
Sherwood, 312 U.S. at 588; Mav v. United States, 80 Fed. Cl.442,444 ("Jurisdiction,
then, is limited to suits against the United States."), affd, 293 F. App'x 775 (Fed. Cir.
2008). This court lacks jurisdiction to adjudicate claims against state agencies and
private individuals. @ Souders v. S.C. Pub. Serv. Auth.,497 F.3d 1303, 1308 (Fed.
Cir.2007): Woodson v. United States, 89 Fed. C|.640,649 (2009) (citing Shathoub v.
United States, 75 Fed. Cl. 584, 585 (2007)).

malicious, fraudulent, oppressive and/or recklessly committed acts . . . [;] [d]amages
sufficient to alleviate any unjust enrichment of Defendants . . . [;] [r]easonable attorney
fees and costs, and . . . [s]uch other relief the Court deems just and proper." On the
coversheet to the complaint, plaintiff seeks $52,000,000.00 in damages. Plaintiff also
requests a jury trial, stating: "WHEREFORE, Because Plaintiff was incarcerated at the
times relevant in this complaint, and therefore was in fact a vulnerable adult requests
that this court permits a jury trial on the matter."2
Plaintiff did not file the required fee or submit an Application to Proceed ln Forma
Pauoeris. Plaintiffs complaint, however, includes a discussion of the right to access the
courts and the court's ability to waive a filing fee. Moreover, plaintiff appears not to be a
first time litigant in federal court, as plaintiff previously filed a case in the United States
Court for the District of Maryland. See Davis v. Marvland, No. GLR-12-3570 (D. Md.
Jan. 11, 2013), affd, 530 F. Appx. 265 (4th Cir. 2013). Plaintiff merely asserts, based
on the Due Process Clause of the Fifth Amendment to the United States Constitution,
that the court cannot prevent him from filing even if he is unable to pay the filing fee. As
discussed below, however, regardless of whether plaintiff has paid the filing fee, or
requested to proceed ln Forma Pauperis, this court would lack jurisdiction to review
plaintiff s claims.
Defendant filed a motion to dismiss plaintiffls complaint for lack of subject matter
jurisdiction, arguing that plaintiffs claims for recovery and damages are not within the
court's Tucker Act jurisdiction. Defendant argues that plaintiffs "claim is not a monetary
demand pursuant to a money-mandating authority, as required by Tucker Act," nor is it
a claim arising out of a contract. In addition, defendant argues that the officials who
plaintiff alleges seized his property are Maryland state and local officials, not United
States officials, and therefore, any claims against them are not properly before this
court. Defendant also states that, although plaintiff did not explain his theory of
recovery, it appears his claim is for wrongfully seized property, which is a claim that
sounds in tort and also is outside this court's jurisdiction. In addition, defendant argues
that the court lacks jurisdiction to hear any Americans with Disabilities Act claim
pursuant to 42 U.S.C $ 12117(a) (2006), because such claims are exclusively under the
jurisdiction of the United States District Courts. Furthermore, not only does defendant
argue that it is not clear how the First, Fifth, and Sixth Amendments are relevant to the
harm that Mr. Davis alleges or the recovery that he seeks, defendant also points out
that this is the wrong court to review the constitutional claims alleged, and that this court
is without jurisdiction to do so. Plaintiff has failed to respond to defendant's motion to
dismiss, despite having been allotted more time to do so than allowed under the rules of
this court.

'

This court does not provide for jury hials. All cases in this court are before judges, as
bench trials.

DISCUSSION

When determining whether a complaint filed by a pro se plaintiff is sufficient to
plaintiffs are entitled to liberal construction of their
invoke review by a court,
pleadings. See Haines v. Kerner, 404 U.S. 5'19, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal
pleadings drafted by lawyers"), reh'q denied,405 U.S. 9aB (972); see also Erickson v.
Pardus, 551 U.S. 89, 9a (2007); Huqhes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v.
Gamble,429 U.S.97, 106 (1976), reh'q denied,429 U.S. 1066 (1977). "However,
"'[t]here is no duty on the part of the trial court to create a claim which [the plaintiffl has
not spelled out in his [or her] pleading."'Lenqen v. United States, 100 Fed. Cl.317,328
(2011) (alterations in original) (quoting Scoqin v. United States, 33 Fed. Cl.285,293
(1995) (quoting Clark v. Nat'l Travelers Life Ins. Co.,518 F.2d 1167, 1169 (6th Cir.
1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, affd,443 F. App'x 542
(Fed. Cir. 201 1); Minehan v. United States, 75 Fed. Cl.249,253 (2007). "White a ple
se plaintiff is held to a less stringent standard than that of a plaintiff represented by an
attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's
jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl.
163, 165 (2010) (citing Huohes v. Rowe,449 U.S. at 9, and Tavlorv. United States,303
F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a
preponderance of the evidence."), reh'o and reh'q en banc denied (Fed. en.2002));
Wickliff v. United States , 102 Fed. Cl. 102, 108 (201 1) ("The burden of estabtishing the
court's subject matter jurisdiction resides with the party seeking to invoke it.").3

4 g

It is well established that "'subject-matter jurisdiction, because it involves

a

court's power to hear a case, can never be forfeited or waived."' Arbauqh v. y & H
Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 53S U.S. 625, 630
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
ex rel. Henderson v. Shinseki, 131 S. Ct. 1197,1202 (2011); see also Hertz Coro. v.
Friend, 130 S. Ct.'l 181, 1193 (2010) ("Courts have an independent obligation to
determlne whether subject-matter jurisdiction exists, even when no party challenges it."
(citing Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v. OEA. Inc.,
269 F.3d 1340, 1342 (Fed. cir. 2001) ('[A] court has a dutyto inquire into its jurisdiction
to hear and decide a case." (citing Johannsen v. Pav Less Druo Stores N.W.. lnc., 91g
F.2d 160, 161 (Fed. Cir. 1990))); View Enq'q, Inc. v. Robotic Vision Svs.. Inc., 115 F.3d
962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whetherthe
parties raise the issue or not."). "The objection that a federal court lacks subjeclmatter
jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage
in the litigation, even after trial and the entry of judgment." Arbauqh v. y & H Corp., b46
U.S. at 506; see also Rick's Mushroom Serv., Inc. v. United States, S2l F.3d 1338,
3

Plaintiff in this case claims that, "Chief Justice John Roberts, of the United States' [sic]
Supreme Court went as far as instructing Plaintiff on how he should proceed with his
case, in light of his pro se status."

1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte,
subject matter jurisdiction at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506;
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en banc
denied (Fed. Cu. 2004), cert. denied, 545 U.S. 1127 (2OO5); and Fanninq, Phillips &
Molnarv. West, 160 F.3d 717,720 (Fed. Cir. 1998))); Pikulin v. United States,97 Fed.
Cl.71,76, apoeal dismissed,425 F. App'x 902 (Fed. Cir. 201 1). In fact, "[s]ubject
matter jurisdiction is an inquiry that this court must raise sua sponfe, even where . . .
neither party has raised this issue." Metabolite Labs.. Inc. v. Lab. Corp. of Am.
Holdinos,370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods.. Inc.. v. Mead Corp.,
134 F.3d 1481,1485 (Fed. Cir.), reh'q denied and en banc suoqestion declined (Fed.
Cir. 1998)), reh'q and reh'q en banc denied (Fed. Cir. 2004), cert. qranted in part, 546
U.S. 975 (2005), cert. dismissed as improvidentlv qranted, 548 U.S. 124 (2006\.
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
only state in the complaint "a short and plain statement of the grounds for the court's
jurisdiction," and "a short and plain statement of the claim showing that the pleader is
entitled to relief." RCFC 8(a)(1), (2); Fed. R. Civ. P.8(aX1), (2) (2013); see also
Ashcroft v. lqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Coro. v. Twomblv, 550
U.S. 544, 555-57, 570 (2007)). "Determination of jurisdiction starts with the complaint,
which must be well-pleaded in that it must state the necessary elements of the plaintiffs
claim, independent of any defense that may be interposed." Holley v. United States,
124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation
Trust,463 U.S. 1 (1983)), reh'q denied (Fed. Cir. 1997); see also Klamath Tribe Claims
Comm. v. United States, 97 Fed. Cl. 203, 2OB (2011); Gonzalez-McOaullev Inv. Grp.,
lnc. v. United States, 93 Fed. Cl. 710, 713 (2010). "Conclusory allegations of law and
unwarranted inferences of fact do not suffice to support a claim." Bradley v. Chiron
Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Coro.,
501 F.3d 1354, 1363 n.9 (Fed. Cir.2007) (Dyk, J., concurring in part, dissenting in part)
(citing C. Wright and A. Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)).
"A plaintiffs factual allegations must 'raise a right to relief above the speculative level'
and cross'the line from conceivable to plausible."' Three S Consultino v. United States,
104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555). As
stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will not do.' tBell Atl. Corp. v.
Twomblv,l 550 U.S. at 555. Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 557).

When deciding a case based on a lack of subject matter jurisdiction, this court
assumes that all undisputed facts alleged in the complaint are true and must draw all
reasonable inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. at
94 (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 508 n.1 (2002))); Scheuer v. Rhodes, 416 U.S. 232,236 (1974),
abroqated on other orounds by Harlow v. Fitzqerald, 457 U.S. 800 (1982), recoqnized
by Davis v. Scherer,468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States,
464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish Indian Nation v. United States,419
F.3d 1355, 1364 (Fed. Cir.2005); Boise Cascade Coro. v. United States,296 F.3d

1339, 1343 (Fed. Cir.), reh'o and reh'q en banc denied (Fed. Cir. 2002), cerl. denied,
538 U.S. 906 (2003).
The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort.

28U.S.C.S1a91(a)(1)(Supp.V2011). AsinterpretedbytheUnitedStatesSupreme
Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims

against the United States (1) founded on an express or implied contract with the United
Siates, (2) seeking a refund from a prior payment made to the government, or (3) based
on federal constitutional, statutory, or regulatory law mandating compensation by the
federal government for damages sustained. see United states v. Navaig- Nation, 556
U.S.287,289-90 (2009); United Statesv. Mitchell,463 U.S.206,216 (1983); see also
Greenlee Cntv., Ariz. v. United States,487 F.3d871,875 (Fed. Cir.)' reh'q and reh'q en
Q0A8\; Palmer v' United
bglg derued (F"d. Cir. 2007), cert. denied, 552 U.S.
States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

ra2

,,Not

every claim invoking the constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages_ against
tni uniteo states." United States v. Mitchell, 463 U.S. at 2l 6; see also United States v.
white Mountain Apache Tribe, 537 U.S. 465,472 (2003); smith v. united-States, 709 F.
3d 1114. 1116 (Fed. Cir.;, cert. denied, 134 S. Ct. 259 (2013): RadioShack Corp' v'
United states,566 F.3d 1358, 1360 (Fed. cir.2009); Rick's Mushrogm serv.. Inc. v.
U.it"d St"tes, 521 F.3d at 1343 ("[P]laintiff must . . . identify a substantive s_ource of law
tfrat creates tne right to recovery of money damages against the United States."). In
Ontario Power Generation. lnc. v. United States, the United States Court of Appeals for
the Federal C.trcuit identified three types of monetary claims for which jurisdiction is
lodged in the United States Court of Federal Claims. The court wrote:

The underlying monetary claims are of three types . . . . First, claims
alleging the existence of a contract between the plaintiff and the
government fall within the Tucker Act's waiver . . . Second, the Tucker

Act's waiver encompasses claims where "the plaintiff has paid money over
to the Government, directly or in effect, and seeks return of all or part ot
that sum." Eastport S.S. tCorp. v. United States' 178 Ct. Cl. 599' 605-06'l
372 F.2d [1002,] 1007-08 (1967)l (describing illegal exaction claims as
claims "in which the Government has the citizen's money in its pocket"'
(quoting Clapp v. United States,127 Ct Cl. 505, 117 F Supp 576' 580
(tgSAli. . . . Third, the Court of Federal Claims has jurisdiction over those
claims'where "money has not been paid but the plaintiff asserts th?t h9 i9
nevertheless entitled to a payment from the treasury." Eastport S'S , 372

F.2d at7. Claims in this third category, where no payment has been
made to the government, either directly or in effect, require that the
"particular provision of law relied upon grants the claimant, expressly or by
implication, a right to be paid a certain sum." ld.; see also Testan [v.
United Statesl , 424 U.5. 1392,1 401-02 [1976] ('Where the United States is
the defendant and the plaintiff is not suing for money improperly exacted
or retained, the basis of the federal claim-whether it be the Constitution, a
statute, or a regulation-does not create a cause of action for money
damages unless, as the Court of Claims has stated, that basis 'in
itself....can fairly be interpreted as mandating compensation by the
Federal Government for the damage sustained."' (quoting Eastport S.S.,
372 F.2d at 1009)). This category is commonly referred to as claims
brought under a "money-mandating" statute.

ontario PowerGeneration. lnc. v. United states,369 F.3d 1298, 1301 (Fed. Cir.2004);
see also Two. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United states v.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan' 424 U.S. 392' 400
tte76D; g"" alsq United States v. White Mountain Apache Tribe' 537 U.S. at 472:
United states v. Mitchell, 463 U.S. at 217; Blueport co., LLC v. United states, 533 F.3d
ir.2008), cert. denied,555 U.S. 1153 (2009). The source of law
granting monetary relief must be distinct from the Tucker Act itself. See United States
i. Naviio Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights;
'|s
prisdictional provision[] that operate[s] to waive sovereign- immunity for
tit .rTpiy
"r
Itaims piemis-ed on other sources of law (e.g., statutes or contracts).") "'lf the statute is
not money-mandating, the Court of Federal Claims lacks jurisdiction, and th.e dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter serv., lnc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. cir.2008) (quoting Greertlee cltJv.-Ariz. v.
united states, 487 F.3d at 876); Fisher v. United states , 402 F.3d 1167, 1173 (Fed. Cir.
ZOO.ll Ofre aOsence of a money-mandating source is "fatal to the court's jurisdiction
under the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553' 565-66 (2009)
In the above-captioned case, Mr. Davis alleges that the "Baltimore county Police

Department by and through the office of the state's Attorney of Baltimore county"
unlawfully seirched and leized plaintiff's property. Plaintiff also alleges that the
Baltimore County State's Attorney violated his constitutional rights and argues for the
return of his property, or its money value. Although plaintiffs complaint refers to
"[D]efendants" when discussing various, alleged violations of his rights, plaintiff never
asserts a claim against an entity or official of the United States. This court does not
have jurisdiction t,o hear allegations or claims against local and state officials, even
thougir the United States was iisted in the caption of plaintiffs complaint. See Fullard v
UnitJd States, 77 Fed. Cl. 226, 230 (2007) (refusing to allow a plaintiffs complaint
aganst locail-ouisiana entities to proceed in the United States Court of Federal Claims

simply because the plaintiff listed the United States as the defendant in the caption of
the complaint).
To the extent that plaintiff requests relief from conduct sounding in tort, including
negligence by government officials, even if federal officials had been alleged to have
been involved, the Tucker Act would also expressly preclude review of tort claims from

the jurisdiction of the United States Court of Federal Claims. See 28

U.S.C.

S 1491(a)(1); see also Keene Corp. v. United States,508 U.S. 200,214 (1993); Rick's
Mushroom Serv., Inc. v. United States,521 F.3d at 1343; Alves v. United States, 133
F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed.
Cir.), reh'q denied (Fed. Cir. 1997); Golden Pac. Bancorp v. United States, 15 F.3d
1066, 1070 n.8 (Fed. Cir.), reh'o denied, en banc suqoestion declined (Fed. Cir.), cert.
denied, 513 U.S.961 (199a); Hampel v. United States, 97 Fed. C|.235, 238,aft'd,429
F. App'x 995 (Fed. Cn.2011), cert. denied, 132 S. Ct. 1105 (2012); Woodson v. United
States,89 Fed. C|.640,650 (2009); McCullouqh v. United States,76 Fed. Cl. 1' 3
(2006), appeal dismissed,236 F. App'x 615 (Fed. Cir.), reh'q denied (Fed. Cir.), cert.
denied, 552 U.S. 1050 (2007); Aqee v. United States,72 Fed' Cl. 284,290 (2006);
Zhenoxino v. United States, 71 Fed. Cl. 732,739, aff'd, 204 F. App'x 885 (Fed. Cir.)'
reh'q denied (Fed. Cir. 2006). Any claim alleging negligence by government officials
raises a question of tortious conduct, which is not reviewable in this court. See
Husband v. United States, 90 Fed. Cl. 29, 35 (2009) (holding that the court lacked
jurisdiction over claims sounding in tort when "the Government seized and failed to
ieturn Plaintiff's property, or, in the alternative, that his property was lost as a result of
the Government's theft.") (internal citation omitted).

Without affirmatively stating that he is disabled, plaintiff also cites to the
Americans with Disabilities Act, 42 u.s.c. s 12101 et seq., to invoke the court's
jurisdiction, appearing to argue, by incorporation of an amicus curiae brief in his
iomplaint, that people with a disability should enjoy equal access to the courts. He

appears to allege that the defendants he named violated his right to equal access to the
court. This court, however, lacks jurisdiction to review claims brought pursuant to the
Americans with Disabilities Act. see Gable v. united states, 106 Fed. Cl. 294, 298
(2012) (concluding that "the court does not have jurisdiction over ADA [Americans with
Disabilities Actl claims, because the ADA does not create a substantive right to money
damages against the United States"); Searles v. United States, 88 Fed. Cl. 801 , 804
(2009) (,,The ADA [Americans with Disabilities Act] is not a statute mandating payment
by the United states." (citing 42 u.s.c. ss 12111(2), (5), 12112)). The United states
Dstrict Courts have jurisdiction over Americans with Disabilities Act claims. See 28
U.S.C. S 1343(a) (2006) ('The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person . . . (4) To recover damages
or to secure equitable or other relief under any Act of Congress providing for the
protection of civil rights."); Johnson v. United States,97 Fed. C|.560' 564 (2011) ("The
bourt notes that Federal district courts have exclusive jurisdiction over the ADA
[Americans with Disabilities Act] . . . claims.").

Plaintiff also seeks relief under a variety of constitutional amendments. Plaintiff
argues initially that his First Amendment right was violated because the Baltimore

County Police Department allegedly improperly possess his "personal and intellectual
property" regarding his "Minority Report" study. Plaintiff alleges that this study was "the
result of a social economic study that applies directly to the issue of racism in the
American judicial system." Plaintiff appears to allege that this possession by the state
government officials infringed plaintiffs "First Amendment right to free speech by
demonstrating his displeasure with the Maryland Judiciary." The First Amendment,
standing alone, however, cannot be interpreted to require the payment of money for an
alleged violation, and, therefore, does not provide an independent basis for jurisdiction
in this court. See United States v. Connollv,716 F.2d 882, 887 (Fed. Cir. 1983) (en
banc), cert. denied, 465 U.S. 1065 (1984) ("We agree with the Court of Claims that the
first amendment, standing alone, cannot be so interpreted to command the payment of
money."); Volk v. United States, 111 Fed. Cl. 313, 326 (2013); Cox v. United States,
105 Fed. Cl.213,217 (2012), apoeal dismissed (Fed. Cir. 2012) ("However, because
the First Amendment, standing alone, does not obligate the United States to pay money
damages, it cannot serve as the basis for jurisdiction in the Court of Federal Claims.")
(citing United States v. Connollv, 716 F.2d at 887).
Similarly, the court lacks jurisdiction over plaintiffs claims to the extent that they
allege that defendant conducted an unlawful search and seizure of plaintiffs
possessions under the Fourth Amendment to the United States Constitution. See KamAlmaz v. United States,96 Fed. C|.84,89 (2010) ("[T]his Court does not have
jurisdiction to hear claims contesting the lawfulness of a search and seizure because
due process and Fourth Amendment claims are reserved to the District Court." (citing
LeBlanc v. United States. 50 F.3d 1025 (Fed. Cir. 1995))), affd, 682 F.3d 1364 (Fed.
Cir.2012): Treece v. United States, 96 Fed. CL226,231 (2010) (citing Milas v. United
States. 42 Fed. Cl. 704,710 (1999) (finding that the Sixth Amendment is not moneymandating), affd,217 F.3d 854 (Fed. Cir. 1999)); Hernandezv. United States,93 Fed.
Cl. 193, 198 (2010) ("Plaintiff avers that his rights under the First, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Fourteenth, and Fifteenth Amendments were violated. None of
these claims allege a violation for which money damages are mandated."); Frv v. United
States, 72 Fed. Cl. 500, 507 (2006) ("As a matter of law, the Fourth Amendment's
prohibition on unreasonable search and seizure and the Due Process Clause of the
Fifth Amendment are not money-mandating." (citation omitted)).

In his complaint, plaintiff also appears to raise Due Process claims under the
Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff alleges
that: "To ensure meaningful access, particularly when an individual faces the prospect
of coercive State deprivation through the judicial process of life, liberty, or property, due
process often requires the State to give a litigant affirmative assistance so that he may
participate in the proceedings if he effectively would be unable to participate otherwise."
Plaintiff continues:

A person with a disability who faces the loss of his freedom, children, or
property in a judicial proceeding similarly must have meaningful access to
the courts. He cannot be said to enjoy equal and effective access to the
courts unless he can actually attend, follow, and participate in the

proceeding. Meaningful, not merely theoretical, access to the courts is
required by the Constitution.
Therefore, plaintiff claims that, "due process may require affirmative conduct on the part
of the State to ensure that individuals with disabilities can participate meaningfully in
judicial proceedings."
The United States Court of Appeals for the Federal Circuit has held that this court
does not possess jurisdiction to consider claims arising under the Due Process clauses
of the Fifth and Fourteenth Amendments to the United States Constitution. See QlgqKgI
v. United States. 125 F.3d 1475, 1476 (Fed. Cir. 1997) (citing LeBlancv. United States.
50 F.3d at 1028) (no jurisdiction over a due process violation under the Fifth and
Fourteenth Amendments), see also In re United States. 463 F.3d 1328, 1335 n.5 (Fed.
Cir.) ("[B]ecause the Due Process Clause is not money-mandating, it may not provide
the basis for jurisdiction under the Tucker Act."), reh'q and reh'q en banc denied (Fed.
Cir. 2006), cert. denied sub nom. Scholl v. United States, 552 U.S. 940 (2007); Acadia
Tech.. lnc. & Global Win Tech.. Ltd. v. United States. 458 F.3d 1327,1334 (Fed. Cir.
2006); Collins v. United States. 67 F.3d 284,288 (Fed. Cir.) ("[T]he due process clause
does not obligate the government to pay money damages."), reh'q denied (Fed. Cir.
1 995); Mullenberq v. United States. 857 F .2d 770, 773 (Fed. Cir. 1 988) (finding that the
Due Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v.
United States. 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment
Due Process clause does not include language mandating the payment of money
damages); Harperv. United States, 104 Fed. C|.287,291 n.5 (2012); Hampel v. United
States, 97 Fed. Cl. at 238; McCullouqh v. United States. 76 Fed. Cl. at 4 ("[N]either the
nor the Privileges and lmmunities Clause
Fifth Amendment Due Process Clause
jurisdiction in this court because the Fifth Amendment is not a
provides a basis for
source that mandates the payment of money to plaintiff."); Smith v. United States, 709
F.3d at 1116 ("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 kBlang:,--t|nbd-S!a!Cg, 50
F.3d at 1028)). Due process claims "must be heard in Dishict Court." Kam-lll0ezJ
United States, 96 Fed. Cl. at 89 (citing Acadia Tech.. lnc. v. United States, 458 F.3d at
'1334); see also Hampel v. United States, 97 Fed. Cl. at 238. Therefore, to the extent
that plaintiff is attempting to raise allegations of Due Process violations, no such cause
of action can be brought in this court.

.

Likewise, to the eritent that plaintiff raises claims under the Equal Protection
Clause of the Fourteenth Amendment, these do not mandate the payment of money by
the federal government and, therefore, fall outside the jurisdiction of the United States
Court of Federal Claims. See LeBlanc v. United States, 50 F.3d at 1028 (indicating that
a claim under the Equal Protection Clause of the Fourteenth Amendment is not
sufficient for jurisdiction in the United States Court of Federal Claims because it does
not "mandate payment of money by the government." (citing Carruth v. United States,
224 Ct. CL422, a45 (1980))); Potter v. United States, 108 Fed. Cl. 544,548 (2013)
(finding that "this Court lacks jurisdiction over violations under the Due Process Clauses
of the Fifth and Fourteenth Amendments . . . because they do not mandate payment of
10

money by the government.") (internal citations omitted) (modifications in original);
Warren v. United States, 106 Fed. Cl. 507, 511 (2012) (holding that, since the
"Fourteenth Amendment guarantee of equal protection" is not money mandating,
"[a]ccordingly, the court lacks jurisdiction over these claims."); Pleasant-Bev v. United
States, 99 Fed. Cl. 363, 367 (2011) aopeal dismissed,464F. App'x 879 (Fed. Cir. 2012)
("However, this court does not have jurisdiction over claims based on either the
Thirteenth Amendment or Fourteenth Amendment because neither mandates the
payment of money damages.").

Plaintiff further claims that the defendants

he named violated his

Sixth

Amendment rights when they prevented him from subpoenaing defendants. Insofar as
plaintiffs claims concern the Sixth Amendment to the United States Constitution, this
Amendment is not money-mandating and, therefore, jurisdiction to review these claims
does not lie in this court. See Dupre v. United States,229 Ct. Cl. 706 (1981) ([Tlhe
fourth and si)dh amendments do not in themselves obligate the United States to pay
money damages; and, therefore, we have no jurisdiction over such claims."); Gable v.
United States, 106 Fed. Cl. at 298 ("[f]he United States Court of Federal Claims ooes
not have jurisdiction to adjudicate the alleged violations of Plaintiffs Sixth Amendment
rights, because that constitutional provision is not money-mandating."); Treece v. United
States, 96 Fed. Cl. at 231 (2010) (citing Milas v. United States, 42 Fed. Ct. at 710
(finding that the Sixth Amendment is not money-mandating)); Smith v. United States, 51
Fed. Cl. 36, 38 (2001) (internal citations omitted) (finding that the United States Court of
Federal Claims lacks jurisdiction over Sixth Amendment ineffective assistance of
counsel claims), affd, 36 F. A'ppx. 444 (Fed. Ctr.2002).

To the extent that plaintiff is alleging any criminal conduct by individuals who
allegedly conducted an unlawful search and seizure of his property, this court also lacks
jurisdiction to adjudicate those claims. See Joshua v. United States, 17 F.3d 378,379
(Fed. Cir. 1994); see also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012)
(holding that "this court does not have jurisdiction over his claims because the court
may review neither criminal matters, nor the decisions of district courts.") (internal
citations omitted); Mendes v. United States, 88 Fed. Cl. 7S9, 762 (2009), appeal
dismissed, 375 F. App'x 4 (Fed. Cir. 2009); Hufford v. United States, 87 Fed. Cl. 696,
702 (2009) (holding that the United States Court of Federal Claims lacked jurisdiction
over claims arising from the violation of a criminal statute); Mathews v. United states,
72 Fed. Cl. 274, 282 (finding that the court lacked jurisdiction to consider piaintiff's
criminal claims), recons. denied, 73 Fed. cl. s24 (2006); Mccullouoh v. United states,
76 Fed. Cl. at 4 (finding that the court lacked jurisdiction to consider ptainiiffs criminat
claims).

Trial judges are given broad discretion to control and manage their dockets,
!glgd!!gwith respect to procedural matters. See, e.q., Amado v. Microsoft Coro., 517
F.3d 1353, 1358 (Fed. Cir.2008) (citing Notan v. de Baca,603 F.2d 810,812 (tOtn Cir.
'1979), cert. denied,446 u.s.956 (19s0)); Nutrinova Nutrition
specialties and Food
Inqredients GMBH v. Int'l Trade Comm'n , 224 F .3d 1356, 1360 (Fed. Cir. 2OO0). ,;[Ihe
parties' right to be heard may be fulfilled by the court's review of the briefs and
supporting affidavits and materials submitted to the court." Geear v. Boulder Cmfu.
11

Hosp., 844 F.2d 764,766 (10th Cir.), cert. denied, 488 U.S. 927 (1988); see also
Toquero v. LN.S.,956 F.2d 193, 196 n.4 (9th Cir. 1992) ("lt is well-settled that oral
argument is not necessary to satisfy due process."); Lake at Las Veqas Investors Grp.
v. Pac. Malibu Dev. Corp.,933 F.2d 724,729 (9th Cir.), reh'q denied (9th Cir. 1991),
cert. denied, 503 U.S. 920 (1992) (which affirmed the trial court and discussed the
court's interpretation of a local District Court rule, finding no prejudicial error based on
the denial of oral argument because the party "had the opportunity to apprise the district
court of any arguments it believed supported its position . . . ."). Therefore, a trial court
is not required to hold a hearing. The decision of whether or not to hold an oral
argument is made in each case, based on the filings and issues raised in that particular
case. Trial courts have broad discretion regarding this decision. Because plaintiff has
presented no allegation within the jurisdiction of the court, the court has concluded that
it is not necessary to hold a hearing in this case.
CONCLUSION
For the reasons stated above, defendant's motion to dismiss is GRANTED, and
plaintiff's complaint is DISMISSED for lack of jurisdiction. The Clerk of the Court shall
enter JUDGMENT consistent with this ooinion.
IT IS SO ORDERED.

ARIAN BLANK HORN
Judge

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