MOORMAN v. USA

Filing 9

UNREPORTED MEMORANDUM OPINION and ORDER granting 5 Motion to Dismiss - Rule 12(b)(1) and (6); granting 3 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to enter judgment. No costs. Signed by Judge Lydia Kay Griggsby. (dls) Copy to parties.

0R[$[N&t
llntW @nitr! Ststrg

@ourt of

feDrrsl @[sims

No. l5-1250C
Filed May 19,2016
NOT FOR PUBLICATION

PERCY R. MOORMAN,

Plaintiff,
THE T]NITED STATES,
Defendant.

)
)
)
)

)
)
)

FILED
MAY I I 2016
U.S, COURT OF
FEDERAL C|jIMS

Pro Se; Rule 12(bxl), Subject-Matter
Jurisdiction; Rule l2OX6), Failure to
State a Claim; In Fortna Pauperis.

)
)
)
)

Percy R. Moorman, Richmond, Y A, plaintiff pro se.
Elizabeth Anne Speck, Trial Attomey, Reginald T. Blades, Jr., Assistant Direclor, Robert
E. Kirschman, -/r., Director and Benjamin C. Mizer, Principal Deputy Assistant Attomey
General, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judee

I.

INTRODUCTION
Plaintiffpro

se, Percy R. Moorman, has brought this action seeking to liquidate certain

government securities held by plaintiff on behalf of a private family trust. The govemment has
moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a

claim upon which relief may be granted, pursuant to Rules l2(b)(1) andl2(b)(6) ofthe Rules of
the United States Court of Federal Claims ("RCFC"). Plaintiff has also moved to proceed in this
marter informa pauperis. For the reasons set forth below, the Court GRANTS the goverffnent's

motion to dismiss and GRANTS plaintiff s motion to proceed informa pauperis.

II.

FACTUAL AND PROCEDURAL BACKGROUNDI

A.

Factual Background

Plainriff pro se, Percy R. Moorman, commenced this action on October 26, 2015. See
generally Compl. Plaintiff s complaint is difficult to follow. Nonetheless, it appears that

plaintiffseeks to liquidate certain govemment securities that he holds in his capacity
executor for a private family trust known as the Moorman Dynasty Trust.

as the

Id at 1.

Specifically, in the complaint, plaintiff alleges that the United States Department of the
Treasury ("Treasury Department") has placed him "in extreme hardship" by being unwilling to

liquidate these securities. 1d. at 3. In this regard, plaintiffpoints to the United States Federal
Reserve's bond-buying stimulus program, known as QE3, as well as the Treasury Department's
decision to issue a Floating Rate Note in 2013, as the govemment policies that have led to his

injury. Id. at2-3.
Plaintiff further alleges that he is entitled to recovet monetary damages from the
govemment due to these policies, pursuant to the Federal Tort Claims Act, Article VI and the
Tenth Amendment of the United States Constitution, and 31 U.S.C. $

311l. Id. at 1, 5. As

relief, plaintiffseeks "full payment including all interest due for all notes or mutually agreed
upon anangemenls." Id. at 6.

B.

ProceduralBackground

Plaintiff filed the complaint in this matter on October 26,2015, along with

a

motion for

leave to proceed informa pauperis. See generally Compl.; Mot. to Proceed In Forma Pauperis.

On December 21, 2015, the government filed a motion to dismiss plaintiff s complaint for lack

of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted,
pursuant to RCFC 12(bXl) and 12(b)(6). See generally Def.

Mot. Plaintiff failed to file a timely

response to the govemment's motion and on February 1, 201 6, the Court issued an Order to

Show Cause directing plaintiffto show cause why this matter should not be dismissed and to file
his response to the governrnent's motion on or before February 16,2016. See Show Cause

I The facts recited in this Memorandum Opinion and Order are taken from

("Compl."); the govemment's motion to dismiss ("Def. Mot."); plaintiff
government's reply ("Dei Reply").

plaintiff

s

complaint

s response ("P1. Resp."); and the

Order, Feb. 1,2016. On February 16,2016, plaintiff filed a document styled as "Plaintiff Show
Cause Motion," which the Court construed to be

plaintiff

s response

to the Court's Order to

Show Cause and plaintiffs response to the government's motion to dismiss. See generally Pl.

Resp. On March 4, 2016,the govemment filed a reply in support of its motion to dismiss. See
generally Def. Reply. The matter having been fully briefed, the Court addresses the pending
motion to dismiss.

UI.

STANDARDSOFREVIEW

A.

Pra Se Litigants

Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., [nc.,535 F.App'x919,
925-26n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp.,501 F.3d 1354, 1356 (Fed.
Cir. 2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to
survive a motion to dismiss, this Court affords more leeway under the rules topro se plaintiffs
than to plaintiffs who are 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"); Matthews v. United Stotes,750 F.3d 1320,
1322 (Fed. Cir. 2014).

But, there "is no duty on the part ofthe trial court to create a claim which [the plaintiff]
has not spelled out in his

pleadings." Lengen v. United States, 100 Fed. Cl.

317

,328 (2011)

(brackets existing; citations omitted). And so, while "a pro se plaintiff is held to a less stringent
standard than that of a plaintiff represented by an attomey, . . . the pro se plaintiff, nevertheless,
bears the burden ofestablishing the Court's
Riles v. I/nired States,93Fed.
1357

,

1359 (Fed. Cir.

jurisdiction by

a preponderance

ofthe evidence."

Cl. 163, 165 (2010) (citing Taylor v. United States,303 F.3d

2002)). Given this, the Court may excuse ambiguities, but not defects, in

the complaint. See Colbert v. United States,617 F. App'x 981,983 (Fed. Cir.2015); see also
Demes v. United States,52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants

with respect to mere formalities does not relieve them ofjurisdictional requirements.").

B.

Jurisdiction, RCFC

l2(bxl)

When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(bX1), this Court must assume that all

undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the

non-movant's favor. Ericl<son v. Pardus,55l U.S. 89,94 (2007); see aiso RCFC 12(b)(1). But,

plaintiff

bears the burden ofestablishing subject-matter

preponderance

jurisdiction, and he must do so by a

ofthe evidence. Reynolds v. Army &Air Force Exch.9erv.,846F.2d746,748

(Fed. Cir. t 988). And so, should the Court determine that

"it

lacks

jurisdiction over the subject

matter, it must dismiss the claim." Matthews v. United States,72 Fed. Cl. 274,278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute. . ,

Guardian Life Ins. Co.

oJ

Am.,51l U.S. 375, 317 (1994). The Tucker Act

."

Kokkonen v

grants the Court

jurisdiction over:
[A]ny claim against the United States founded either upon the Constitution, or any
Act ofCongress or any regulation ofan executive department, or upon any express
or implied contract with the United States, or lor liquidated or unliquidatec
damages in cases not sounding in tort.
28 U.S.C. $ 1a91(a)(1). 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 [the United States Court of Federal Claims] whenever the
substantive right exists." United Statesv. Testan,424 U.S,392,39S (1976). And so, topursue a
substantive right against the United States under the Tucker Act, a plaintiff must identifu and
plead a money-mandating constitutional provision, statute, or regulation; an express or implied
contract with the United States; or an illegal exaction of money by the United States. Cqbral

v.

(Inited States, 317 F. App'x 979,981 (Fed. Cir. 2008); (citing Fis her v. United States, 402 F.3d
1167, 1173 (Fed. Cir.
purposes

2005). "[A]

if it 'can fairly

statute or regulation is money-mandating for jurisdictional

be interpreted as mandating compensation for damages sustained as a

result ofthe breach of the duties [it] impose[s]."' Fisher,402 F.3dat

ll73 (quoting United

States v. Mitchell,463 U.S. 206,217 (1983)).

c.

RCFC l2(bx6)

Lastly, when deciding a motion to dismiss based upon failure to state a claim upon which
relief may be granted pursuant to RCFC 12(bX6), this Court must also assume that all undisputed
facts alleged in the complaint are true and draw all reasonable inferences in the non-movant's

favor. Erickson, 551 U.S. at94; see a/so RCFC l2(bX6). To survive

a

motion to dismiss

pursuant to RCFC l2(bX6), a complaint must contain facts sufficient to "state a claim to relief
that is plausible on its face." Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (200'7); see also

Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). And so, when the complaint fails to "state a claim
to relief that is plausible on its face," the Court must dismiss the complaint. Iqbal,556U.S.at
678 (citation omitted). On the other hand, "[w]hen there are well-pleaded factual allegations, a
court should assume their veracity" and determine whether it is plausible, based upon these facts,

to find against defendant. Id. at 679.

IV.

DISCUSSION

A.

The Court Does Not Possess Jurisdiction To Consider Plaintiff s Claims

The govemment has moved to dismiss plaintiff s complaint upon two grounds. First, the
government argues that the Court does not possess jurisdiction to consider plaintiff s claims,
because the claims are not based upon a substantive source

of law that would create

a

right for

plaintiff to recover money damages from the govemment. Def. Mot. at4-7. The govemment
also moves to dismiss the complaint for failure to state a claim upon which relief may be granted,
because

plaintiffdoes not allege any facts in the complaint that would entitle him to recover

money damages from the governrnent. Id. at 8-9, For the reasons discussed below, the Court
does not possess subject-matter jurisdiction to consider

plaintiff

s claims and the

complaint also

fails to state a claim for reliefthat is plausible on its face. And so, the Court must dismiss this
matter pursuant to RCFC l2(b)( I ) and 12(bX6).

1.

Plaintiff

s

Tort Claim Is Jurisdictionally Precluded

As an initial matter, the Court may not entertain plaintiffs claim based upon the Federal
Tort Claims Act ("FTCA"). In the complaint, plaintiff alleges that he is entitled to monetary
damages as compensation for the govemment's alleged unwillingness to liquidate the securities

that he holds under the FTCA. Compl. at I; see a/so 28 U.S.C. $ 1346(b).

It is well established that this Court does not possess jurisdiction to consider claims
brought pursuant to the FTCA. Shearin v. Ilnited States,992F.2d

("It

ll95,l'l9l

(Fed.

Cir. 1993)

is well settled that the United States Court ofFederal Claims lacks . . . jurisdiction to

entertain tort claims."). Indeed, the Tucker Act limits the Court's jurisdiction to claims founded
upon the Constitution, upon any Act ofCongress or any regulation ofan executive department,
upon any express or implied contract with the United States, or for liquidated or unliquidated

damages in cases not sounding in
possess

tort. 28 U.S.C. $ 1491(a). Given this, the Court

does not

jurisdiction to consider plaintiffs tort law claim here. And so, the court must dismiss

this claim for lack of subject-matter jurisdiction. RCFC 12(b)(l).

2.

The Court Does Not Possess Jurisdiction
To Consider Plaintiff s Constitutional Claims

The Court is similarly without jurisdiction to entertain plaintiff s constitutional claims in

this matter. In the complaint, plaintiff alleges, without further explanation, that the govemment
has violated

Article VI and the Tenth Amendment of the United States Constitution. Compl. at

5. But, to pursue

these constitutional claims,

plaintiff must do more than simply allege

a

constitutional violation. cabral,3lT F. App'x at 981. Rather, plaintiff must identily and plead a
money-mandating constitutional provision in the complaint. 1d. Plaintiff fails to do so here.

In this regard, this Court has long recognized that Article VI provides no right to money
*3 (Fed. Cl' Jan' 14,
damages. Marshall v. {Jnited States, No. 09-431C, 2010 WL 125978' at

Andso,
2010);seealsoHanfordv.UnitedStates,l54F.App'x216,216(Fed.Cir.2005).
Article VI cannot serve as the basis for establishing the Court's jurisdiction in this matter. Id';
Testan,424 U.S. at402 (1976) (quoting Eas tport S.S.

Corpv United States,372F.2d1002'

Cl. 1967) (Constitutional provisions do not create a basis for money damages unless
that basis "can fairly be interpreted as mandating compensation by the Federal Govemment for
100S (Ct.

the damage sustained.")

Plaintiff s cursory reference in the complaint to the Tenth Amendment also fails to
establish that the Court possess jurisdiction to consider his constitutional claim. Rllsse// v.
(Jnited States,78 Fed. Cl. 281,285 (2007)

("plaintiff must establish mole than the mere

existence of a statute or constitutional provision to bring himself within the jurisdiction of this

court',). In particular, this Court has held that the Tenth Amendment is not

a money mandating

provision of the Constituti on. Patterson v. Ilniled States,2006 WL 5649292 (The Tenth
Amendment does not mention any'thing about money damages and cannot support a cause

of

action in this Court); see also Ogdenv. United States,61 Fed' C1.44'47 (2004). And so'

plaintiffhas not identified

a specific, money-mandating

provision of the Constitution that would

create a right to recover money damages against the United States in this case. Fisher, 402 F -3d

aI l1'/2; RCFC l2(bX1).

3.

The Court Does Not Possess Jurisdiction
To Consider PlaintifPs Section 3111 Claims

Finally, the Court is also without jurisdiction to consider plaintiff s claims based upon the
federal statute that authorizes the Secretary of the Treasury to buy, redeem, or refund
govemment securities. Compl. at l-2; see also

3

I U.S.C. $ 3 I I I .

Section

3

1 1

1

provides that:

An obligation may be issued under this chapter to buy, redeem, or refund, at or
before maturity, outstanding bonds, notes, certificates of indebtedness, Treasury
bills, or savings certificates of the United States Govemment. Under regulations of
the Secretary of the Treasury, money received from the sale of an obligation and
other money in the general fund of the Treasury may be used in making the
purchases, redemptions, or refunds.

31U.S.C. $ 3111. A plain reading of this provision makes clear that section

31

1

I

is not a

money-mandating statute that would create a right for plaintiffto recover money damages
against the United States. 1d. Rather, this statute simply authorizes the Secretary of the Treasury

to buy, redeem or refund government securities under certain circumstances. 1d. Given this,

plaintiff cannot rely upon section 3l l1 to establish the Court's jurisdiction to consider his claim.
Marshall,20l0 WL 1259'78 at *2 (finding that a plaintiff must assert "a substantive claim
founded in some other source of law that'can fairly be interpreted as mandating compensation

by the Federal Govemment for the damages sustained."' (quoting Mitcher, 463 U.S. at216'17));
see also Cundari v. United States, 650 F.2d 287 (Ct.

Cl. 1980) (holding that generalized

complaints concerning the government's fiscal and monetary policy cannot be litigated). And
so, the Court must dismiss

plaintiff

s

claim based upon section 3111 for want of subject-matter

jurisdiction. RCFC 12(bxl).

B.

Plaintiff Also Fails To State A Claim Upon Which Relief Can Be Granted

Dismissal of the complaint is also warranted because the complaint fails to state a
plausible claim upon which relief may be granted. RCFC 12(bX6). Indeed, a careful reading

plaintiffs complaint

of

demonstrates that, when viewed in the light most favorable to plaintiff, the

complaint does not contain sufficient facts to "state a claim to relief that is plausible on its face."
Twombly,550 U.S. at 570 see also lqbal,556 U. S. at 678. In this regard, plaintiff does not
allege any facts in the complaint that would entitle him to recover money damages from the

government. See generally Compl. Rather, the complaint contains various grievances against
the govemment regarding the monetary policy of the United States. 1d. Given this, the

complaint does not state a claim that is plausible on its face and the Court must dismiss the
complaint for failure to state a claim upon which relief may be granted. Twombly,550 U.S. at
570; see also

C.

lqbal,556 U.S. at 678; RCFC 12(bX6).

Plaintiff s Motion For Leave To Proceed
In Forma Paupenb Satisfies The Statutory Requirement

Lastly, plaintiffhas filed a motion to proceed

in

forma pauperis and he seeks a waiver of

the Court's filing fee. See generally PL Mot. to Proceed 1n Forma Pauperis. This Court may
authorize commencement of a suit without prepayment of fees when a person submits an

affidavit including

a statement

and a statement of the nature

ofall

assets, a declaration that he or she is unable to pay the fees,

ofthe action and a beliefthat he or

u.s.c. s 1915(a); see also 28 U.S.C.

S

she is entitled to redress. See 28

2503(d). Due to the court's summary disposition of this

plaintiff spro se status, the court finds that plaintiff satisfies the requirements to
proceed informa pauperis for the purpose ofresolving the jurisdictional issues raised by the
complaint. And so, the Court grants plaintiff s motion to ptoceed informa pauperis for this

case, and

purpose.

V.

CONCLUSION
In sum, when read in the light most favorable to plaintiff, the complaint clearly

demonstrates that the Court does not possess subject-matter jurisdiction to consider any

plaintiff

s

of

tort, constitutional, or statutory claims. Because plaintiff fails to demonstrate that the

Court possesses subject-matter jurisdiction to entertain any ofhis claims, the Court must dismiss
the complaint. RCFC 12(bX1). Dismissal of this matter is also warranted because the complaint

fails to state a plausible claim upon which relief may be granted. And so, the Court also
dismisses this matter pursuant to RCFC 12(b)(6).

Finally, because of plaintiff spro se status-and plaintiff

s

representation that he is unable

to pay the Court's filing fee-plaintiff may proceed in this matter infotma pauperis for the

limited purpose of resolving the jurisdictional issues raised by the complaint.

And so, for the foregoing reasons, the Corut:

(l)

GRANTS the govemment's motion to dismiss; and

(2) GRAIYTS plaintiffs motion to ptoc:eed

in

forma pauperis.

The Clerk's Office is directed to ENTER final judgment in favor of the govemment

DISMISSING the complaint.
No Costs.

IT IS SO ORDERED.