KENYON v. USA

Filing 13

REPORTED OPINION granting 11 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. [USPS Tracking #9114 9999 4431 3548 1337 94] Signed by Judge Susan G. Braden. (dw) Copy to parties.

ORIGINAI
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No. l6-cv-223
Filed: July 28,2016

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28 U.S.C. $ 1941;

RONALD GENE KENYON

Rules of the United States Court
of Federal Claims ("RCFC"),
RCFC l2(bX1),
RCFC 12(bX6).

Plaintiff, pro se,

FILED

JUL 2 B 2O16

THE UNITED STATES,

U,S. COURT OF
FEDERAL CLAIMS

Delendant.

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Ronald Gene Kenyon, Marianna, Florida, Plaintiff, pro

se.

Jimmy S. McBirney, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT'S
MOTION TO DISMISS
BRADEN, "/adge.

I.

RELEVANT F'ACTUAL BACKGROUND.'

Ronald Gene Kenyon currently is imprisoned at the Federal Corrections Institute ("FCI")
in Marianna, Florida. Am. Compl. at 1. On January 12,2004, Mr. Kenyon was convicted of three
counts of aggravated sexual abuse of a child under the age of twelve and two counts of abusive
sexual contact in the United States District Court for South Dakota. See United States v. Kenyon,
No. 3:03-30071, Dkt. No. 66 (D.S.D. July 16,2007) (Judgment and Commitment of Mr. Kenyon).
on February 11,2005, the United states court of Appeals for the Eighth circuit reversed the
judgment and remanded the case for new trial. See Kenyon v. United States,397 F.3d 1071' 1082
(8th Cir. 2005) (holding that the trial court improperly admitted hearsay testimony).
On February 2, 2006, the United States District Court for South Dakota retried Mr. Kenyon
who was convicted of four counts of aggravated sexual abuse of a child. See United States v.

I

The relevant facts discussed herein were derived from the May 5, 2016 Amended
Complaint ("Am. Compl.").

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Kenyon,No.3:03-30071, Dkt. No. 133 (D.S.D. Jluly 16,2007) (Judgment and Commitment of Mr.
Kenyon). On April 9, 2007, the United States Court of Appeals for the Eighth Circuit again
reversed. See United States v. Kenyon,481 F.3d 1054, 1058 (8th Cir. 2007) (reversing two counts
of aggravated sexual abuse of a child, because of an erroneous jury instruction and insufficient
evidence). On July 16, 2007,Mr. Kenyon was sentenced to two 293-month concunent terms for
the two oounts of aggravated sexual abuse ofa child that the United States Court ofAppeals for
the Eighth Circuit affirmed. See United States v. Kenyon, No. 3:03-30071, Dkt. No. 155 (D.S.D.
July 16, 2007) (Second Amended Judgment of Mr. Kenyon)

il.

PROCEDURALHISTORY.

("Plaintiff') filed a Complaint against the United States
in the United States Court of Federal Claims, alleging wrongful
imprisonment, as well as violations of the United States Constitution and the "bad men" clause of
the Fort Laramie Treaty of I 868 (-Compl.".1.2
On February 8,2016, Mr. Kenyon

(the "Govemment")

On that same day, Mr. Kenyon filed a Notice Of Directly Related C ases'. Fourstar v. United
States,l22 Fed. Cl.596 (2015);Jonesv. UnitedStates,l22Fed. CI.543 (2015); Petersv. United

No.20 (Fed. Cl. Nov. 10,2015) (Memorandum Opinion And Final
UnitedStates,No. 15-799C,2016WL 1057023 (Fed.Cl.Mar. 16,2016);Little
Older);Ballardv.
Coyote v. (Inited Stotes, No. 15-723C, 2016 WL 1057023 (Fed. Cl. Mar. 16, 2016); and
Harrisonv. United States,No. l5-1271C, 2016 WL 3606066 (Fed. Cl. June 30, 2016).

Stales, No. l5-528C, Dkt.

Mr. Kenyon also filed a Motion For Leave To Proceed In Forma Pauperis that the court
granted on February 24.2016.
On April 8,2016, the Govemment filed a Motion To Dismiss the February 8,2016
Complainr, pursuant to Rules 12(b)(1) and l2(b)(6) ofthe United States Court ofFederal Claims
f.RCFC).
On May 5,2016, Mr. Kenyon filed a Motion To Stay, a Motion For Extension Of Time,
and a Motion To Amend Complaint, attaching an Amended Complaint ("Am. Compl.")' On May
26,2016, the goult granted Mr. Kenyon's May 5,2016 Motion To Amend Complaint, but denied
Mr. Kenyon's other May 5, 2016 Motions as moot.

2

The Fort Laramie Treaty of 1868, in relevant part, provides:

If bad men among the whites, or among other people subject to the authority ofthe
United States, shall commit any wrong upon the person or property ofthe Indians,
the United States will, upon proof made to the agent and forwarded to the
Commissioner of Indian Affairs at Washington City, proceed at once to cause the
offender to be arrested and punished according to the laws ofthe United States, and
also re-imburse the injured person for the loss sustained.

Fort Laramie Treaty of 1868, art. I, l5 Stat. 635.

The May 5, 2016 Amended Complaint names the United States as a defendant, and states
two claims. Am. Compl. at l-3. The first claim alleges that "defendants," the Acting Director of
the Federal Bureau of Prisons ("FBP"), an Assistant United States Attomey, a Mental Health
Doctor at FCI Marianna, Florida, a Senior Judge of the United States District Court for South
Dakota, and unnamed officers, acting as agents of the United States, allegedly unreasonably and
retroactively applied: 42 U.S.C. $ 16913(a);3 18 U.S.C. $ 35S3(d)/ Federal Bureau of Prisons
('FBP) Program Statement 5110.17;5 and FBP Program Statement 5394.01.6 By applying these
3

The 2006 Sex Offender Notification & Registration Act, also known as the Adam Walsh
Child Protection and Safety Act of2006, in relevant part, provides:

A sex offender shall register, and keep the registration current, in each jurisdiction
where the offender resides, where the offender is an employee, and where the
offender is a student. For initial registration purposes only, a sex offender shall
also register in the jurisdiction in which convicted if such jurisdiction is different
from the jurisdiction of residence.
42 U.S.C. g 16913(a).
a

Section 3583(d) of the Sex Offender Monitoring Act, in relevant part, provides:

The court shall order, as an explicit condition of supervised release, that the
defendant not commit another Federal, State, or local crime during the term of
supervision and that the defendant not unlawfully possess a controlled substance[']
18

U.s.c.
s

$ 3583(d).

The FBP Program Statement 5 I 10.17, in relevant part, provides:

This policy . . . requires that the Bureau ofPrisons (Bureau) notify state, tribal, and
local law enforcement officials at least five calendar days prior to releasing to
Supervised Release, probation, or parole, prisoners who have been convicted ofa
"drug trafficking crime" or a "crime of violence."
FEDERAL BUREAU oF PRtsoNS, PRoGRAM STATEMENTNo. 5 i 10.17, NorlFIcATIoN REQUIREMENTS
UpoN RELEASE OF SEX OFFENDERS, VIOLENT OFFENDERS, AND DRUG TRAFFTCKERS (2014).
6

The FBP Program Statement 5394.01, in relevant part, provides:

[A] person in [FBP] custody is a sexually dangerous person when review under this

subpart provides reasonable cause to believe that the person is a sexually dangerous
person. In determining whether a person is a sexually dangerous person and should
be so certified, the Bureau will consider any available information in its possession
and may transfer the person to a suitable facility for psychological examination[.]
FEDERAL BUREAU oF PRISONS, PROGRAM STATEMENT No. 5394.01, CERTIFICATION
CoMMTTMENT OF SEXUALLY DANcERous PERSoNS (2016).

ANo Ctvtt-

statutes and policies, "defendants" violated Mr. Kenyon's rights, pursuant to the "bad men" clause
of the Fort Laramie Treaty of 1868, as well as the Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendments of the United States Constitution. Am. Compl. at 2. In addition, for the first claim,
the May 5, 2016 Amended Complaint seeks: injunctive and declaratory reliefenjoining the United
States from enforcing the above referenced statutes and policies with respect to Mr. Kenyon; $25
million in damages for wrongful imprisonment; and his immediate release from the FCI. Am.
Compl. at 2.

The second claim alleges that the Acting Director of the FBP, a Federal
Bureau of Investigation Indian Case Agent, a Bureau of Indian Affairs Superintendent, and
a Senior Judge for the United States District Court of South Dakota, allegedly
unreasonably uppli.d,

l8 U.S.C. $ I153(a):7 l8 U.S.c.

7 Section 1153(a)

$ 2241(c);8

l8 U.S.C. $ 2244(aXI)rq

of the Major Crimes Act, referred to by Mr. Kenyon as the "Indians

Crime Act of 1876," in relevant part, provides:

Any Indian who commits against the person or property of another Indian or other
person . . . an assault against an individual who has not attained the age of 16 years,
felony child abuse or neglect . . . within the Indian country, shall be subject to the
same law and penalties as all other persons . . . within the exclusive jurisdiction of
the United States.
18 U.S.C. $ 11s3(a).
8

Section 2241(c) ofthe Sexual Abuse Act of 1986, in relevant part, provides:

whoever crosses a State line with intent to engage in a sexual act with a person
who has not attained the age of 12 years . . . knowingly engages in a sexual act with
another person who has not attained the age of 12 years, or knowingly engages in
a sexual act . . . with another person who has attained the age of 12 yeals but has
not attained the age of 16 years (and is at least 4 years younger than the person so
engaging), or attempts to do so, shall be fined under this title and imprisoned for
not less than 30 years or for life.
18 U.S.C. $ 2241(c).
e

Section 22aa@)Q) ofthe Sexual Abuse Act of 1986, in relevant part, provides:

(a) Whoever, in the . . . jurisdiction of the United States or in a Federal prison
knowingly engages in or causes sexual contact with or by another person, if so to
do would violate

-

(1) Subsection (a) or (b) ofsection 2241 ofthis title had the sexual contact been
a sexual act, shall be fined under this title, imprisoned not more than ten years,
or both[.]
18

U.s.c. $ 22aa@)().

and

l8 U.S.C.

2246(2)(D)-{3;,r0 thereby violating Mr. Kenyon's rights under rhe "bad men" clause
of the Fort Laramie Treaty of 1868. Am. Compl. at 2-3.
S

The second claim also alleges that Mr. Kenyon was wrongfully imprisoned, because
"defendants" threatened to withhold federal contracting programs under the Indian SelfDetermination & Education Assistance Act C'ISDEAA"). r I Am. Compl. at 2-3. In addition, Mr.
Kenyon seeks injunctive and declaratory relief enjoining the United States from enforcing the
above referenced statutes with respect to Mr. Kenyon, and $25 million in damages for wrongful
imprisonment. Am. Compl. at 3. Mr. Kenyon also requests expungement of his,.charges, DNA,
fingerprints, data and all other legal instruments particular to [him]." Am. Compl. at 2-3.
On June 8,2016, the Govemment filed a Motion To Dismiss the May 5, 2016 Amended
Complaint ("Gov't Mot."), pursuant to RCFC 12(b)(1) and 12(bX6). On JuIy 7 ,2016,Mr. Kenyon
filed a Response ("PI. Resp.").

r0 Section
2246(2)(D) and Section 2246(3)

of

the Sexual Abuse

Act of 1986, in relevant

parts, provide:

(2) The term "sexual act" means . . .
(D) the intentional touching, not through the clothing, of the genitalia of another
person who has no1 attained the age of l6 years with an intent 10 abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire ofany person;
(3) The term "sexual contact" means the intentional touching, either directly or
through the clothing, ofthe genitalia, anus, groin, breast, inner thigh, or buttocks of
any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire ofany person.
18 U.S.C. $

2246(2Xd){3).

It The ISDEAA, in relevant part, provides:
Whoever, being an officer, director, agent, or employee of, or connected in any
capacity with, any recipient of a contract, subcontract, grant, or subgrant pursuant
to this subchapter . . . embezzles, willfully misapplies, steais, or obtains by fraud
any of the money, funds, assets, or property which are the subject of such a grant,
subgrant, contract, or subcontract, shall be fined not more than $10,000 or
imprisoned for not more than two years, or both[.]
25 U.S.C. I450d.

IIL

DISCUSSION.

A.

Standard Of Review For Pro Se Litigants.

A pro se plaintiffs pleadings are held to a less stringent standard than those of litigants
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"). It has been the tradition of this court to examine the record "to see
if fa pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. united states,4l2
F.2d 1285, 1292 (Ct. Ct. 1969).
represented

B.

Standard Of Review For A Motion To Dismiss Pursuant To RCFC

l2(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] l2(b)(1) motion."
Palmer v. United States,168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(bxl) (allowing
a party to assert, by motion, "lack of subject-matter jurisdiction"). when considering whether to
dismiss an action for lack ofsubject matter jurisdiction, the court is "obligated to assume all factual
allegations [ofthe complaint] to be true and to draw all reasonable inferences in plaintiff s favor."
Henke v. United States,60 F.3d 795, 797 (Fed. Cir. 1995).

C.

Standard Of Review For A Motion To Dismiss Pursuant To RCFC l2(bx6).

Although a complaint "attacked by a Rule 12(bX6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the grounds of entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements ofa cause of
action will not do;' Bell Atl. Corp. v. Twombt, 550 U.S. 544,555 (2007) (citations omined). The
court, however, "do[es] not require heightened fact pleading ofspecifics, but only enough facts to
state a claim to relief that is plausible on its face." Id.; see also RCFC 12(bX6) (..Every deflense,
in law or fact, to a claim for relief in any pleading, whether a ciaim, counterclaim, or third-party
claim, shall be asserted in the responsive pleading thereto if one is required, except that the
following defense[] may at the option of the pleader be made by motion: . . . (6) failure to state a
claim upon which relief can be granted[.]"). When reviewing a motion to dismiss for failure to
state a claim upon which relief may be granted, the court "must accept as true all the factual
allegations in the complaint, and . . . indulge all reasonable inferences in favor ofthe non-movant."
Sommers Oil Co. v. United States,24l F.3d,1375,1378 (Fed. Cir. 2001) (citations omitted).

D.

The Government's June 8, 2016 Motion To Dismiss.

l.

The Government's Argument.

The Government argues that the United States Court of Federal Claims does not have
jurisdiction to adjudicate the claims in the May 5, 2016 Amended complaint, because Mr. Kenyon
seeks review of a criminal conviction. Gov't Mot. at 5 (citing Joshua v. united states, 17 F.3d
378, 380 (Fed. Cir. 199a) ("[T]he [United States] Court of Federal Claims does not have
jurisdiction to review the decision of district courts or the clerks of district courts relating to
proceedings before those courts.")). In addition, the designated "defendants,,' were acting as
federal agents in their professional capacity and, as a matter of law, are immune from suit. Gov't

Mot. at 5 (citing Imbler v. Pachman, 424 U.S. 409, 424 (1976) (holding that a state prosecuting
attorney has absolute immunity from civil liability when acting within the scope ofhis duties)).
Even if the court had jurisdiction to review a district court's decision, the court still would
not have jurisdiction over the claims alleged in the May 5, 2016 Amended complaint, because the
claims alleged state that "defendants" "knowingly and willfully and wrongfully violated [Mr.
Kenyon'sl rights." Gov't Mot. at 6 (quoting Hernandez v. United States, 96 Fed. Cl. 195,204
(2010) ("[T]he Tucker Act expressly excludes tort claims, including those committed by federal
officials, from the jurisdiction of the United States court of Federal claims . . . . Therefore, this
court does not have jurisdiction to hear [plaintiffs] claims sounding in tort.") (citations omitted)).

Assuming arguendo that the court has subject matter jurisdiction, the May 5, 2016
Amended Complaint fails to state a claim upon which reliefcan be granted, because "[the] factual
allegations are frivolous on their face." Gov't Mot. at 6 (citing De nton v. Hernandez, 504rJ.s.25,
33 (1992) ("[F]actual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible[.]")). The May 5,2016 Amended complaint is "supported by
nothing more than a litany of implausible accusations." Gov't Mot. at 7. In addition, the claims
alleged are "substantially similar to claims recently asserted by [Mr. Kenyon's] fellow inmates[,]"
that the court has rejected as "wholly irational in law and fact." Gov't Mot. at 6 (citins. Jones v.
United States,l22Fed. Cl. 543,545 (2016)).

2.

Plaintiff

s Response.

Mr. Kenyon's July 7,2016 Response includes several arguments that are not relevant to
this case, but concem related cases Fourstar v. {Jnited states, r22Fed. cI.596 (2015); Ballard v.
United States, l5-799C,2016 WL 1057023 (Fed. Cl. Mar. 16, 2016); and Haruison v. United
s/a/es, No. 15-127tC,2016 WL 3606066 (Fed. Cl. June 30,2016).
Nonetheless, Mr. Kenyon responds that the sentencing guidelinesl2 are impermissibly
vague, ambiguous, and unconstitutional. Pl. Resp. at 1 (citing united states v. Johnson,135 s. ct.
2551,2557 (2015) (holding that the "residual clause" of the armed career criminal act, 18 u.s.c.
$ 924(e), is unconstitutionally vague)). Mr. Kenyon also argues that the court has jurisdiction to
adjudicate claims, pursuant to: section 1153(a) ofthe "Indian crimes Act of 1876"; section2242
of the Criminal Law and Procedure Technical Amendments Act of 1986 1,,CLpTAA");t3 Section
12

The United States Sentencing Commission annually publishes a Guidelines Manual that
recommends sentences for crimes, inciuding sexual abuse of a minor. ,see u.S. sENTENcINc
Gulosl-rues MANUAL S 243.2 (2015) (recommending sentence lengths for counts of sexual abuse
based on severity of the crime and past criminal history).
13

Section 2242 of CLPT AA, in relevant part, provides:

Whoever, in the . . . United States or in a Federal prison, knowingly . .
(2) engages in a sexual act with another person if that other person is

(A) incapable of appraising the nature ofthe conduct; or

-

.

1962 of the Racketeer Influenced and Comrpt Organizations Act
clause of the Fort Laramie Treaty of 1 868. Pl. Resp. at 4-6.

3.
$

("RICO').

'4 and the "bad men"

The Court's Resolution,

The United States Court of Federal Claims has jurisdiction underthe Tucker Act, 28 U.S.C.
1491, "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. $ 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
Claimsl whenever the substantive right exists." UnitedStatesv. Testqn,424tJ.S.392,398 (1976).

.

Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and
plead an independent contractual relationship, constitutional provision, federal statute, and/or
executive agency regulation that provides a substantive right to money damages. See Todct v.
united states,3 86 F.3d l09l , 1094 (Fed. cir. 2004) ("[J]urisdiction under the Tucker Act requires
the litigant to identify a substantive right for money damages against the United States separate
from the Tucker Act[.]"); see also Fisherv. UnitedStates,402F.3d1167,1172 (Fed. Cir.2005)

(enbanc)("TheTuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmust

.

identify a separate source of substantive law that creates the right to money damages. . . [T]hat
source must be 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source
of substantive law upon which he relies "can fairly be interpreted as mandating compensation by
the Federal Govemment." united ststes v. Mitcheil,463 u.s. 206,216 (19g3) (quoting resran,
424U'5. at 400). And, the plaintiff "bears the burden of establishing subject matter jurisdiction

(B) physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title, imprisoned not more than 20
years, or both.

Criminal Law and Procedure Technical Amendments Act of 1986, pub. L. No. 99446,
100 stat. 3592 (1986.
ra

S

Section 1962 of RICO, in relevant part, provides:

It shall be unla'*fi.r| for any person who has received any income derived, directly
or indirectly, from a pattem of racketeering activity . . . directly or indirectly, any
part of such income, or the proceeds of such income, in acquisition of any interest
in, or the establishment or operation of, any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce.
18 U.S.C. 6 1962.

2242,

by a preponderance ofthe evidence." Reyolds v. Army
748 (Fed. Cir. 1988).

&Air

Force Exch.\erv.,846F.2d746,

In this case, Mr. Kenyon argues that the United States Court of Federal Claims has
jurisdiction to adjudicate the claims alleged in the May 5, 2016 Amended complaint. First, the
May 5' 2016 Amended Complaint alleges that the court has jurisdiction, pursuant to the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Am. Compl
at 2. Second, that the court has jurisdiction, pursuant to the "bad men" clause ofthe Fort Laramie
Treaty of 1868. Am. compl. at 2-3. The May 5,2016 Amended complaint alleges that both
claims can be characterized as claims for wrongful imprisonment. Am. compl. at 2-3. Finally,
Mr. Kenyon's Ju'ly 7,2016 Response also argues that the court has jurisdiction, pursuant to the
"Indian Crimes Act of 1876," CLPTAA, and RICO. Pl. Resp. at 4-6.
The court does not have jurisdiction to adjudicate the alleged constitutional violations,
because the Fourth, Sixth and Eighth Amendments, as well as the Due Process clauses ofthe Fifth
and Fourleenth Amendments are not "money-mandating." see Trafny v. united states,503 F.3d
1339, 1340 (Fed. Cir. 2007) ("[T]he Eighth Amendment is not a .money-mandating,
provision[.]"); Milas v. united states,42Fed. cl.704,7l0 (1999) ("trhel Sixth Amendment[]
[is]
not money mandating[.]"), aff'd217 F.3d 854 (Fed. cir. 1999); Brown v. united states,105 F.3d
621,623 (Fed. cir. 1997) ("[T]he Fourth Amendment does not mandate the payment of money for
its violation."); Leblanc v. united states, 50 F.3d 1025, 1028 (Fed. cir. 1995) (holding that the
Due Process Clauses of the Fifth and Fourteenth Amendments are not "a sufficient basis for
jurisdiction[,] because they do not mandate payment by the Government"). Although the court
has jurisdiction to adjudicate a Fifth Amendment Takings clause claim, the May 5, 2016 Amended
Complaint does not allege unjust compensation by the Government. .see Rith Energt v. united
States,247 F.3d 1355, 1365 (Fed. Cir. 2001) (holding that the court hasjurisdiction to adjudicate
a Fifth Amendment Takings clause claim if the plaintiff pleads unjust compensation by the
Govemment). Accordingly, the court does not have jurisdiction to adjudicate the alleged
constitutional violations in the May 5,2016 Amended Complaint.
The court does not have jurisdiction to adjudicate the alleged violations of the "bad men,,
clause of the Fort Laramie Treaty of 1868, because Mr. Kenyon has not exhausted his
administrative remedies by filing a claim with the United States Department of Interior.
Elk v. United states,7O Fed,. cl. 405, 407 (2005) ("As a condition to receiving reimbursement, ^See
the
[Fort Laramie] Treaty plainly requires that 'proof [be] made to the agent and forwarded to the
commissioner of Indian Affairs a1 washington city."'(quoting Fort Laramie Treaty of lg6g, art.
I., 15 Stat. 635)); see also Tsosie,11 cl. ct. 62,75 (1996) (holding thatthe united States court of
Federal Claims has jurisdiction "to review a final administrative decision" of the Denartment of
Interior in a "bad men" reimbursement case), aff'd rsosie v. (lnited states, s25 F.2l 3%,395
(

1e87).

In the altemative, the claims in the May 5,2016 Amended Complaint are for wrongful
imprisonment. Am. Compl. at 1-3. The court has jurisdiction to adjudicate claims for wrongful
imprisonment if Mr. Kenyon.
[a]llege[s] and prove[s] that:

(l) His conviction

has been reversed or set aside on the ground that he is not guilty
offense of which he was convicted, or on new trial or rehearing he was found

ofthe
not guilty of such offense, as appears from the record or certificate of the court
setting aside or reversing such conviction, or that he has been pardoned upon the
stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in
connection with such charge constituted no offense against the United States, or
any State, Territory or the District of columbia, and he did not by misconduct or
neglect cause or bring about his own prosecution.
28 U.S.C. g 2sl3(a).

The court does not have jurisdiction to adjudicate Mr. Kenyon's wrongful imprisonment
claims, because the claims alleged d-o not meet the statutory requirements of Section zilz1a1,
i.e.,
that Mr. Kenyon received "[a] certificate ofthe court setting aside or reversing such conviction,,,
or proofthat Mr. Kenyon "has been pardoned upon the stated ground of innoc-ence[.],'
2g u.s.c.
$

2sl3(a).

Even if the court construes Mr. Kenyon's wrongful imprisonment claims as a
request for
review of the District Court of South Dakota's crimina-i proceedings, the United
States court of
Federal Claims "does not have jurisdiction to review the d-ecision ofdistrict
courts or the clerks of

ltjltl:,:o11.relatingtoproceedingsbeforethosecorxts)'Joshuav.unitetrstates,17F.3d37g,
380(Fed. cir. 1994); see also Julian v. united states,No. t5-1344c,2016 wL g2g2ig,
at*2 (Fed,.
91..Y*..10, 2016) (finding that the courr does not have jurisdiction to review uppliiu,"
decisions).
"oun

In the July 7,2016 Response, Mr. Kenyon argues that the court has jurisdictron
to
adjudicate claims, pursuant to: Section I 153(a) of ihe,.lniian crimes
Act of 1g76,i se;ction 2242
of GLPTAA; and section 1962 of RICO. pr. Resp. at 4-6. Assuming
the May 5, 2016 alleges
claims, pursuant to the above referenced statutes, the court does not
havi jurisdiction, because the
statutes are criminal' See Joshua, 17 F .3d at 379 ("The court
has no jurisdiction to uiiudi"u,. uoy
claims whatsoever under the federal criminal code[.],'); see atso Httfordr.
unitraitiiii,np"a.
cl..696,702-Q009) (same); Matthews v. united'irar'es,72 Fed. ct. zlc,
zsz (2006j-(..ctaims
under ' RICo are criminal claims. This court lacks jurisdiction to
adjudicate criminal claims.,,).

-.

'

t0

IV.

CONCLUSION.

For these reasons, the Govemment's June 8, 2016 Motion To Dismiss is grented. .See
l2(bxl) and 12(b)(6). Accordingly, the Clerk is directed ro dismiss the May 5, 2016
Amended Complaint.

RCFC

ITISSOORDERED.
SUSANG.BRADEN
Judge

ll