MALONE v. USA

Filing 6

UNREPORTED ORDER granting 5 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Signed by Judge Mary Ellen Coster Williams. (dls) Copy to parties.

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No. 13-938C
(Filed: March 20,2014)
(Not for Publication)

FILED
MAR 2

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0

2014

U.S. COURT OF
FEDERAL CLAIMS

DAVID MALONE,
Plaintiff,
v,

THE UNITED STATES,
Defendant.
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ORDER OF DISMISSAL

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Judge.

This matter comes before the Court on Defendant's motion to dismiss Plaintiff p1s se's
complaint under Rules 12(b)(l) and 12(bX6) ofthe Rules ofthe United States Court ofFederal
Claims ("RCFC"). For the reasons set forlh below, the Court dismisses the complaint for lack of
subject-matter jurisdiction under RCFC I 2(bxl ).

Backsround

Plaintiffpro se, David Malone, filed a complaint against various
including the Attomey General of the United States. Plaintiff
federal officials and entities,
appears to allege that the listed public officials breached a contract. On October 14,2013,
Plaintiff allegedly sent documents labeled as "Assigned Affidavit," "Fee Simple Deed /
Covenant," and "Power of Attomey," respectively, to the federal officials. Compl. 3. In
particular, Plaintiff claims in his "Affrdavit" that, from May 5, 1969 to October 5, 2013, he was
unable to appreciate the wrongfulness of his own actions and "that any and all contracts, charges
or bonds entered into" by Plaintiff are now null and void. Id. at 1 I . The "Affidavit" told
recipients to respond within three days of receipt and that "[d]ishonor may result if you fail to
On November 25,2013,

respond." Id. Plaintiff allegedly reminded the Defendants of the documents in a "NOTICE OF
PROTEST," sent on November 7,2013. Id. at 8, 15.

Plaintiff alleges that the federal officials' failure to reply to the "Affidavit" constituted
their acceptance of statements contained within it. Id. at 3. Plaintiff posits that by accepting that
he could not appreciate the wrongfulness of his past actions, the federal officials incurred a
conuactual obligation to release Plaintiff from prison immediately. Id. at 3, 5-6. Plaintiff seeks
$10 million dollars for "initial HARM CAUSED BECAUSE OF INCOMPETENCE" plus $7
million dollars for every day since October 17,2013, the date the named federal officials and
entities allegedly became aware of PlaintifPs unla'*f.rl incarceration. Id. at 6. Additionally,
Plaintiff requests his immediate release from prison. Id.
Discussion
When deciding a motion to dismiss under RCFC 12(bX1), the Court of Federal Claims
plaintiffs factual allegations are true and draws "all reasonable inferences in
plaintiffs favor." Henke v. United States, 60 F.3d 795,797 (Fed. Cir. 1995); Goel v. United
States, 62 Fed. Cl. 804, 806 (2004). A plaintiff bears the burden of establishing subject-matter
jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv.,
846 F.zd 746,748 (Fed. Cir. 1988); BearinePoint. Inc. v. United States,7'7 Fed. Cl. 189, 193
(2007). It subject-matter jurisdiction cannot be established, the Court must dismiss plaintiffs
complaint. RCFC 12(h)(3); see also Tindle v. United States,56 Fed. CL.337,341 (2003).
assumes that all of

The Court holds a p3q se plaintiffs pleadings to a less stringent standard than litigants
represented by counsel. Haines v. Kemer, 404 U.S. 519, 520 (1972) (per curiam). The Federal
Circuit has cautioned that it "does not expect a plq se litigant to be made to jump through a
confusing array of procedural hoops." Mendoza v. Merit Sys. Prot. Bd.,966F.2d 650, 653 (Fed.
Cir. 1992). Pro se plaintiffs, however, must still satisft the Court's jurisdictional requirements.
Minehan v. United States,75 Fed. Cl.249,253 (2007).
The Tucker Act confers jurisdiction on this Court to decide "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. $ la9t(a)(l)
(2012). The Tucker Act alone, however, does not provide an enforceable right to bring suit
against the United States. Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007). A
plaintiff must establish an independent right to money damages based upon a money-mandating
source of law. ld. at 1351-52. "To maintain a cause of action pursuant to the Tucker Act that is
based on a contract, the contract must be between the plaintiff and the govemment and entitle the
plaintiff to money damages in the event of the government's breach of that conhact." Ransom v.
United States, 900F.2d242,244 (Fed. Cir. 1990).

This Court lacks subject-matter jurisdiction over this matter because plaintiff

s

submission ofunsolicited documents to a number of federal officials and entities plainly does not
create a contract. The following elements must be present to form a govemment contract: "(1)
mutuality of intent to contract, (2) consideration, (3) lack of ambiguity in offer and acceptance,

and (4) authority on the part of the govemment agent entering the contract." Suess v. United
States, 535 F.3d 1348, 1359 (Fed. Cir.2008). "Insubstantial allegations as to the existence ofa
money-mandating contract will warrant dismissal for lack of subject matter jurisdiction." Tp. of
Saddle Brook v. United States, 104 Fed. Cl. 101, 110 (2012) (citing Rick's Mushroom Serv.. Inc.
v. United States, 521 F.3d 1338, 1343-44 (Fed. Cir. 2008)). The govemment agents' failure to
respond to an unrequested aJfidavit does not constitute acceptance of the language contained in
the document. See Radioptics. Inc. v. United States,223 Ct. Cl' 594,609 (1980) ("Silence may
not be construed as an acceptance of an offer in the absence of special circumstances existing
prior to the submission of the offer which would reasonably lead the offeror to conclude

otherwise.").

Conclusion
Defendant's motion to dismiss is GRANTED. The Clerk of Court is directed to dismiss
this action without prejudice for lack ofjurisdiction.

LLEN COSTER WILLIAMS