ROSZKOWSKI v. USA

Filing 16

UNREPORTED OPINION denying as moot 6 Motion to Dismiss - Rule 12(b)(1) and (6); granting 12 Motion to Dismiss - Rule 12(b)(1) and (6) The Clerk is directed to enter judgment. Signed by Senior Judge James F. Merow. (ar) Copy to parties.

FILED
APR 2 4 2015

Wniteb ~tates ~ourt of jfeberal ~laims

U.S. COURT OF
FEDERAL CLAIMS

No. 14-1178 L
Filed April 24, 2015
CHRISTINE JOSEPHINE
ROSZKOWSKI,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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ORDER
On December 8, 2014, plaintiff filed a complaint alleging that her rights were
violated in a number of ways with regard to the foreclosure on, and subsequent sale
of, her residence in Wake Forest, North Carolina. See, Doc. 1, iii! 10, 24, 27. At
the outset of the complaint, plaintiff describes her claim as follows:
This action seeks just compensation from the United States for property
taken from Plaintiff. This is a proceeding to recover monetary damages
exceeding $10,000.00 (Ten Thousand Dollars) from the transfer of
private property not for public use that arises from The Takings Clause,
under The United States Constitution. The Constitution protects private
property.
Doc. 1, ,-r 1. Despite the fact that she appears to be seeking recovery under the Fifth
Amendment, plaintiff alleges that this court has jurisdiction to hear her case pursuant
to federal question jurisdiction because she has suffered violations of her Fourth,
Fifth and Fourteenth Amendments rights. See Doc. 1, ii 2.
As defendants in the suit, plaintiff has named: (1) Joseph N. Callaway, the
trustee appointed by the United States Bankruptcy Court in which plaintiff filed for
Chapter 7 bankruptcy, see iii! 5, 56; (2) Marjorie K. Lynch, "Bankruptcy
Administrator," ii 6; (3) Gail Wikel, Community Manager for Cimarron
Homeowners Association, Inc., the entity that plaintiff claims unlawfully foreclosed

on her mortgage, see ifif 7, 24; and (4) Roy Cooper, the Attorney General for the
State of North Carolina, if 9. Plaintiff also names the United States as a defendant
in the case caption, but fails to allege claims against the federal government at any
point in the complaint. The government has moved to dismiss the complaint for lack
of jurisdiction. See Doc. 12.
Plaintiffs complaint is not a model of clarity, but even assuming her version
of events, as the court must when considering a motion to dismiss, see Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011), this court
lacks jurisdiction because plaintiff makes no allegations against the United States.
The United States Court of Federal Claims is a court of limited jurisdiction.
The applicable grant of jurisdiction provides:
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.
28 U.S.C. § 1491(a)(l) (emphasis added). This encompasses cases in which the
plaintiff alleges that the federal government unlawfully took possession of property,
under the Takings Clause of the Fifth Amendment. See Lion Raisins, Inc. v. United
States, 416 F.3d 1356, 1362 (Fed. Cir. 2005).
The Takings Clause states, in relevant part: "nor shall private property be
taken for public use, without just compensation." U.S. CONST. amend. V, cl. 4. In
order to trigger this aspect of the court's jurisdiction, however, the United States
must have been the entity which allegedly did the taking. As the Federal Circuit has
explained: "A claimant under the Takings Clause must show that the government,
by some specific action, took a private property interest for a public use without just
compensation." Adams v. United States, 391 F .3 d 1212, 1218 (Fed. Cir. 2004) (citing
Hodel v. Va. Surface Mining & Reclamation Ass 'n, 452 U.S. 264, 294 (1981)). And
the Takings Clause's prohibition is specifically "directed against the federal
government." Lenoir v. United States, 618 F.2d 125 (Ct. Cl. 1979) (citing Hooe v.
United States, 218 U.S. 322, 335-336 (1910)).
Plaintiff makes no such direct allegation. It is conceivable that plaintiff is
under the impression that Mr. Callaway, the bankruptcy trustee, was acting for the
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United States since he was appointed in her Chapter 7 bankruptcy proceeding. This
assumption on her part, however, would be incorrect. See e.g., In re Bursztyn, 366
B.R. 353, 365 (Bankr. D.N.J. 2007) (holding that bankruptcy trustees are not
government employees); Cromelin v. United States, 177 F.2d 275, 277 (5th Cir.
1949) (stating that a bankruptcy trustee "is in no sense an agent or employee or
officer of the United States"), questioned on other grounds in Sullivan v. United
States, 21 F.3d 198, 202-03 (7th Cir.1994).
To the extent plaintiffs claims are asserted against individuals, jurisdiction is
lacking. As noted, United States Court of Federal Claims' jurisdiction is limited to
suits against the United States. United States v. Sherwood, 312 U.S. 584, 588 (1941);
Cottrell v. United States, 42 Fed. Cl. 144, 148 (1998) ("The Court of Federal Claims
does not have jurisdiction over suits against individuals; it only has jurisdiction over
suits against the United States.").
In addition, to the extent plaintiff means to challenge the actions of the
bankruptcy court or trustee in the course of the bankruptcy proceeding, this court is
equally without jurisdiction to consider her claims. See Allustiarte v. United States,
256 F.3d 1349, 1351-52 (Fed. Cir. 2001) (holding that the Court of Federal Claims
lacks jurisdiction to review takings claims based on the actions of federal bankruptcy
courts or trustees).
The court expresses no opinion about the lawful or unlawful nature of the
actions described in plaintiffs complaint. But because the court lacks jurisdiction
to decide the questions presented, the court must dismiss the case. See RCFC
12(h)(3).
The government's motion to dismiss is GRANTED.
Mr. Callaway who is not listed in the caption as a defendant (Rules of the
Court of Federal Claims (RCFC) lO(a)), also filed a motion to dismiss, see Doc. 6,
but failed to move the court for leave to join the lawsuit. His motion to dismiss is
DENIED, as moot.
SO ORDERED.

~esF.Merow
Senior Judge
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