STRAW v. USA

Filing 4

Order of Dismissal: The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (ar) Copy to parties. [Sent via Certified Mail: 7012 3460 0001 7791 8057]

IGINAL
of jfeberal

lfn tbe Wniteb ~tates

~ourt

~laints

No. 17-560.C
(Filed: May 3, 2017)

**********************
ANDREW U.D. STRAW,

Plaintiff,

v.
THE UNITED STATES,

Defendant.

*************** *******
ORDER
Plaintiff filed a complaint on April 20, 2017, seeking $27,100,000 for
damages allegedly suffered by him, his mother, and his brother as a result of
poisoning that he and his family suffered while his father and family were
stationed at several military bases located in the United States. The complaint
alleges that plaintiff's father was regularly exposed to toxic substances during his
service in the Marine Corps and that his mother was also exposed to those
substances when she cleaned his father's uniform. These toxins then made their
way to plaintiff in utero, alleges the complaint. The complaint alleges that
plaintiff and his family have suffered injuries, pain, and suffering as a result. 1
Plaintiff alleges a right not to have been poisoned by the federal
government and to have been promptly notified of the poisoning. Plaintiff cites

'The complaint also asks for damages for plaintiff's stepfather,
presumably for the emotional pain and suffering of losing his wife, and for
physical injuries suffered by plaintiff's brother and plaintiff's daughter. The
complaint is not clear, but we presume that the injuries to plaintiff's brother
and daughter are also alleged to have been caused by direct exposure to toxic
substances or inherited as birth defects caused by those substances.
7012 3460 0001 7791 8057

the Fifth and Ninth Amendments to the Constitution for support. He also asserts
that jurisdiction attaches here under Bivens v. Six Unknown Named Agents ofthe
Fed. Bureau a/Narcotics, 403 U.S. 388 (1971), in which the Supreme Court held
that an individual can bring a suit for damages in federal court for the deprivation
of constitutional rights by individual federal agents.
Defendant has not yet responded to the complaint, but we need not wait
for a response because it is clear on the face of the document that this court does
not have jurisdiction. See RCFC 12(h)(3) (mandating that the court dismiss an
action whenever it ascertains that it lacks jurisdiction). The allegations in the
complaint concern tort claims over which this court has no jurisdiction.
The Tucker Act, this court's primary grant ofjurisdiction, gives this court
jurisdiction to hear claims for monetary damages against the United States based
on a constitutional, statutory, regulatory, or contractual right to the payment of
money from the United States. 28 U.S.C. § 1491 (2012). Specifically excluded
from our jurisdiction, however, are cases "sounding in tort." Id. (granting
jurisdiction over monetary claims "not sounding in tort"). Personal injuries of the
type alleged in the complaint, either the result of negligence or intentional
misconduct, even on the part of government agencies, are not actionable in this
comt. They are tort claims.
Additionally, although the complaint invokes the Fifth Amendment and
its protections against government invasion ofliberty and property rights, plaintiff
has not pied a Fifth Amendment taking claim which might otherwise be
cognizable in this court. Plaintiff has not alleged that his real or personal property
was physically invaded or taken or that some intangible property right was
diminished as a result of government action or inaction. Thus, plaintiff has not
alleged a taking claim that would give rise to jurisdiction in this court.
Claims for deprivation of rights without due process are similarly outside
of our jurisdiction. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.
1995). Nor does the Ninth Amendment provide any recourse here. Royce v.
United States, I Cl. Ct. 225, 226 (Cl. Ct. 1982) (holding that the Ninth
Amendment does not mandate the payment of money). Likewise, this comt has
no jurisdiction over Bivens claims. Brown v. United States, 105 F.3d 621, 624
(Fed. Cir. 1997). In sum, the complaint must be dismissed for lack of subject
matter jurisdiction.
As a further matter, the exhibits attached to the complaint include the dates
of birth for several individuals mentioned in the complaint. As a prophylactic
measure, the clerk's office sealed those documents because that information can
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be protected from public access upon request by a paity. Rule 5.2, however, puts
the onus for protecting privacy on the party filing the documents, not the court.
Because plaintiff has not requested that those documents be maintained under
seal, they will not be. Accordingly, the following is ordered:
1. The clerk's office is directed to unseal the documents attached to the
complaint.

2. The Clerk of Court is directed to dismiss the complaint for lack of
jurisdiction and to enter judgment accordingly.

LfuWERIC G. BRUGiNK
Senior Judge

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