VELARDE v. USA
UNREPORTED OPINION and ORDER granting 5 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Thomas C. Wheeler. (ar) Copy to parties. [Sent via certified mail: 7017 1450 0000 1346 4162]
Wniteb ~tates Qeourt of jfeberal Qelaitns
(Filed: September 14, 2017)
SEP 1 4 2017
THE UNITED STATES,
U.S . COURT OF
OPINION AND ORDER
Bart N. Velarde, a pro se plaintiff, alleges that the United States has committed
violations of law as a result of its conduct in the Philippines throughout its history. The
Government has filed a motion to dismiss for lack of subject matter jurisdiction. For
reasons explained below, the Court GRANTS the Government's motion to dismiss Mr.
Mr. Velarde is a U.S. citizen and a resident of the State of Michigan. Compl. at 2.
He alleges that the United States has committed three violations of law resulting from its
involvement in the Philippine Revolutionary War, the Spanish-American War and the
American-Filipino War: "[m]urder, [g]enocide [and] [c]rimes [a]gainst [h]umanity." Id.
at 3. Mr. Velarde further alleges that the United States is responsible for the deaths of 2.5
million innocent Filipino men, women and children through the use of armed forces and
that from 1899 to the present, the United States has covered up and perpetuated these
alleged violations by adopting a policy of "neocolonialism." Id. at 4-5, 9.
On April 17, 2017, Mr. Velarde filed a complaint before this Court against current
U.S . President Donald J. Trump, seeking $1 million in compensatory damages and $10
million in punitive damages from the Government for the alleged violations described
above. Id. at 11. The Government filed a Rule 12(b)(l) motion to dismiss on June 9, 20 17.
7017 1450 ODDO 13 46 4162
Gov.'s Mot. at 1. The parties completed briefing on the motion to dismiss on August 28,
2017 and the Court has deemed oral argument unnecessary.
The Tucker Act ordinarily is the focus of subject matter jurisdiction in this Court,
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
28 U.S.C. § 1491(a)(I). The Tucker Act itself "does not create a cause of action." RHI
Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). Thus, a plaintiff
must identify a "separate source of substantive law that creates the right to money
damages" in order to invoke the Court's jurisdiction over a claim. Greenlee County, Ariz.
v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005)). Failure to establish jurisdiction under the Tucker Act
requires the Court to dismiss under Rule 12(b)(l). Outlaw v. United States, 116 Fed. Cl.
656, 658 (2014). When deciding a Rule 12(b)(l) motion to dismiss, a court must assume
all the undisputed facts in the complaint are true and draw reasonable inferences in the nonmovant' s favor. Erikson v. Pardus, 551 U.S. 89, 91 (2007). Courts hold pleadings made
by pro se plaintiffs to a less stringent standard and liberally construe language in the
plaintiffs favor. Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, Mr. Velarde's claims do not survive the 12(b)(I) motion to dismiss.
This Court only has jurisdiction to entertain claims against the United States. 28
U.S.C. § 149 l(a)(I ); United States v. Sherwood, 312 U.S. 584, 588 (1941); Moore v. Public
Defenders Office, 76 Fed. Cl. 617, 620 (2007) ("When a plaintiffs complaint names
private parties, or local, county, or state agencies, rather than federal agencies, this court
has no jurisdiction .... "). Mr. Velarde has not named any federal agency or the United
States as a defendant; rather, he has named the current President of the United States,
Donald J. Trump, as the sole defendant. Therefore, this Court does not have jurisdiction
over Mr. Velarde's claims.
Additionally, Mr. Velarde fails to identify any separate source of substantive law
creating a right to monetary damages. In his complaint, the only source oflaw Mr. Velarde
refers to is A1iicle II, Section 4 of the U.S. Constitution, which states, "The President, Vice
President and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors." U.S. Const. art. II, § 4. However, this Court does not have jurisdiction
over invocations of Article II, Section 4 of the Constitution because monetary damages are
not available under this provision. Delmore v. United States, No. l l-556C, 2011 WL
5120484, at *1 (Fed. Cl. Oct. 30, 2011 ). Further, in his response to the Government's
motion to dismiss, Mr. Velarde points to "the new [e]conomic definition of Modern
Politics" to establish this Cami's jurisdiction over his claims. Pl. 's Resp. at 6. However,
this is not a valid source of substantive law creating a right to monetary damages.
Therefore, this Court does not have jurisdiction over Mr. Velarde's claims.
For the reasons stated above, the Government's motion to dismiss is GRANTED.
The Clerk of the Court shall enter judgment accordingly. No costs.
IT IS SO ORDERED.
THOMAS C. WHEELER
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