STEWART v. USA

Filing 8

UNREPORTED ORDER granting 7 Motion for Leave to Proceed in forma pauperis. Complaint dismissed without prejudice for lack of subject matter jurisdiction. The Clerk is directed to enter judgment. Signed by Judge Elaine D. Kaplan. [U.S. Certified Mail Receipt Tracking #7017 1450 0000 1346 2731](vds) Copy to parties.

ORIGINAL
1fn tbe Wniteb ~tates qcourt of jfeberal qcraims
(Pro Se)
)
)
)
)
)
)
)
)
)
)

NICOLL STEWART,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.

~~~~~~~~~~~~~~~

No. l 7-l 145C
(Filed: September 18, 2017)

FILED
SEP 1 8 2017
U .S . COURT OF

FEDERAL CLAIMS

)

ORDER
On August 24, 2017, Plaintiff Nicoll Stewart, proceeding prose, submitted a letter to the
court which the Clerk deemed a complaint. See Docket No. 1. Ms. Stewait submitted her
complaint without paying the required filing fees or completing an application to proceed in
forma pauperis. On August 30, 2017, the Court ordered Ms. Stewart to either pay the filing fee or
submit an application to proceed in forma pauperis within thirty days. Order, Docket No. 5. On
September 11, 2017, Ms. Stewart filed an application to proceed in forma pauperis. Docket No.
7.
Pursuant to 28 U.S.C. § 1915(a), "any court of the United States may authorize the
commencement . .. of any suit, action or proceeding .. . without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement ... that the person is
unable to pay such fees or give security therefor." 1 A plaintiff does not have to "be absolutely
destitute to enjoy the benefit of the statute." Adkins v. E.I. DuPont De Nemours, 335 U.S . 331,
339 (1948). An affidavit that demonstrates that a plaintiff is unable to pay the fee or give security
therefor and still provide for himself and any dependents is sufficient. See id.; see also Waltner
v. United States, 93 Fed. Cl. 139, 142-43 (2010) (stating that the question is whether "paying
such fees would constitute a serious hardship on the plaintiff' (internal quotation omitted)).
Here, Ms. Stewait states in her affidavit that she earns approximately $1 ,200 per month
as a small business owner. Docket No. 7. She asserts that she has not received any other money
from any other sources in the last twelve months, that she does not have any money in a
checking or savings account, and that she does not own any automobiles, real estate, or other
similar valuable property. Id.

1

For purposes of28 U.S.C. § 1915, the Court of Federal Claims is a court of the United States.
28 U.S .C. § 2503(d).

7017 1450 DODD 1346 2731

Ms. Stewart's asserted monthly income equates to an annual income of$14,400. That
amount is barely above the 2017 federal poverty level for an individual of$12,060. Federal
Poverty Level (FPL), HealthCare.gov, https://www.healthcare.gov/glossary/federal-povertylevel-FPL/ (last visited Sept. 15, 2017); Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007)
(granting application to proceed in forma pauperis where, among other things, plaintiffs "annual
income level [was] below the government established poverty line"). Accordingly, based on this
and the other statements in Ms. Stewart's affidavit, the Court concludes that Ms. Stewart has
sufficiently demonstrated that she is unable to pay the court's pre-filing fees. Her application to
proceed in forma pauperis is therefore GRANTED.
The Court, however, has an obligation to satisfy itself of its jurisdiction and may raise
subject matter jurisdiction sua sponte at any time. See Arbaugh v. Y&H Com., 546 U.S. 500,
506-07, 514 (2006); Rick's Mushroom Serv., Inc. v. United States, 521F.3d1338, 1346 (Fed.
Cir. 2008); see also Rule 12(h)(3) of the Rules of the Court of Federal Claims (stating that "[i]f
the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action."). In determining subject matter jurisdiction, the court accepts as true all undisputed
facts in the pleadings and draws all reasonable inferences in favor of the plaintiff. See Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The court may "inquire
into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933
F.2d 991, 993 (Fed. Cir. 1991). It is well established that complaints that are filed by prose
plaintiffs, like this one, are held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even prose plaintiffs must
persuade the Court that jurisdictional requirements have been met. Bernard v. United States, 59
Fed. Cl. 497, 499, affd, 98 F. App'x 860 (Fed. Cir. 2004); see also Zulueta v. United States, 553
F. App'x 983, 985 (Fed. Cir. 2014) ("the leniency afforded to a prose litigant with respect to
mere formalities does not relieve the burden to meet jurisdictional requirements" (internal
quotation and citation omitted)). The plaintiff bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373
(Fed. Cir. 2013); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.
Cir. 1988).
The Tucker Act grants the United States Court of Federal Claims the power "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). It serves as a waiver of sovereign immunity and a jurisdictional
grant, but it does not create a substantive cause of action. Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish
that "a separate source of substantive law ... creates the right to money damages." Id. (quoting
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part)); Rick's
Mushroom Serv., Inc., 521 F.3d at 1343 (stating "plaintiff must look beyond the Tucker Act to
identify a substantive source of law that creates the right to recovery of money damages against
the United States" (citation omitted)).
Here, Ms. Stewart first asserts in her complaint that she is "submitting a Federal claim"
because she has "reasons to believe [she is] living under Government surveillance." Compl. at 1.
But the majority of her complaint makes allegations against an unspecified Department of Child

2

Services. See, e.g., id. Ms. Stewart asserts that this Department of Child Services has "violated
[her] parental rights" and is keeping her away from her children. Id. She appears to asse1i that the
department has terminated her parental rights without any basis. See id. at 3. Ms. Stewart also
alleges that her court-appointed attorneys in proceedings with the department are not adequately
representing her. Id. at 2. She states in her complaint that the department has caused damages in
the form of "family separation, suffering, humiliation, homelessness, failure to comply with
safety procedures, and threat oflo[]sing parental rights." Id. at 4. Ms. Stewart also alleges that
the federal government is separately responsible for causing damages relating to "child support
debt, drivers [sic] license privileges, homelessness, lost [sic] of equal employment opportunity,
and identity ex[]posure." Id.
It is thus clear from the face of Ms. Stewart's complaint that the Court lacks subject
matter jurisdiction. The United States is the only proper defendant in the Court of Federal Claims
and the Comi does not have jurisdiction over any other defendants. See United States v.
Sherwood, 312 U.S. 584, 588 (1941); see also Del Rio v. United States, 87 Fed. CL 536, 539
(2009). Ms. Stewart's complaint, however, is targeted at private individuals and state and local
government actors such as the unidentified Department of Child Services. These claims, against
parties other than the United States, are DISMISSED.
Further, there is no discernible allegation against the federal government. At most,
without any explanation or allegation of wrongdoing, but seemingly stemming from Ms.
Stewart's child custody and child support disputes, Ms. Stewart asserts that the federal
government has caused damages in the form of "child support debt, drivers [sic] license
privileges, homelessness, lost [sic] of equal employment opportunity, and identity ex[]posure."
Comp!. at 4. Child custody disputes, however, are not within the jurisdiction of the Comi of
Federal Claims because they do not seek money damages from the United States. See Testa v.
United States, 52 F.3d 343 (Table), 1995 WL 138970, at *1-*2 (Fed. Cir. Mar. 21, 1995); Del
Rio v. United States, No. 10-43C, 2010 WL 2300538, at *1-*2 (Fed. CL June 7, 2010).
For these reasons, the Court lacks subject matter jurisdiction over Ms. Stewart's
complaint, as she does not make any allegations against the federal government and fails to
identify any substantive source of law providing a right to money damages from the United
States. Ms. Stewart's complaint, therefore, is DISMISSED without prejudice for lack of subject
matter jurisdiction. The Clerk shall enter judgment accordingly. Each side shall bear its own
costs.2

2

On August 28, 2017, the Court received another letter from Ms. Stewart, addressed to a
superior court in Indiana and entitled an "Objection Notice." This letter failed to comply with
multiple rules for filings in this court. Because of that failing, and because the Court lacks
jurisdiction over Ms. Stewart's complaint, the Court directs the Clerk's office to return the letter
to Ms. Stewart unfiled.

3

IT IS SO ORDERED.

ELAINED. KAPLAN
Judge

4