SMITH v. USA
REPORTED OPINION DISMISSING CASE: granting 2 Motion for Leave to Proceed in forma pauperis The Clerk is directed to enter judgment. Signed by Judge Margaret M. Sweeney. (ac7) Copy to parties.
3Jn tbe Wniteb
Qeourt of jfeberal Qelaims
(Filed: October 12, 2017)
THE UNITED STATES,
OCT 1 2 2017
US. COURT OF
Sua Sponte Dismissal for Lack of
Jurisdiction; Collateral Attack of Criminal
Judgment; Application to Proceed In
Robert Smith, Springfield, MO, pro se.
OPINION AND ORDER
Plaintiff Robert Smith, proceeding prose, contends that he was improperly charged, tried,
and sentenced pursuant to four federal statutes. He therefore seeks his immediate release from
federal prison and monetary damages. The court lacks jurisdiction to consider plaintiffs claims.
Thus, without awaiting a response from defendant, the court grants plaintiffs application to
proceed in forma pauperis and dismisses plaintiffs complaint.
On October 26, 2005, the United States District Court for the Northern District of Illinois
("district court") entered a criminal judgment reflecting that plaintiff had been found guilty of
four separate offenses. 1 The judgment included the following table:
The facts in this section are derived from plaintiffs complaint and the materials
submitted with plaintiffs complaint.
7017 1450 DODD 6959 9665
Title & Section
Nature of Offense
26 use§ 586l(d)
Possessing a Destructive Device
that was not Registered to him in
the National Firearms
Registration and Transfer
26 USC § 5821,
26 USC § 5822, and
26 USC§ 586l(f)
Making a Destructive Device
without Filing a Written
Application or Having Paid
Taxes as required, and without
having filed any written
application for the making of
firearms as required
18 USC § 444(1) [sic]
Attempting to Destroy Property
which was used in Interstate
Commerce by Means of an
18 USC§ 924(c)(l)(A)
Using a Pipe Bomb in relation to
a Crime of Violence
Plaintiff was sentenced to ten years' imprisonment each for counts one through three, to run
concurrently, and to thirty years' imprisonment for count four, to run consecutive to the ten-year
terms. The United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") affirmed
plaintiffs conviction on direct appeal in 2007.
Thereafter, plaintiff filed a number of motions in the district court attacking his sentence.
The district court denied all of the motions, and the Seventh Circuit either affirmed the district
court or declined to issue a certificate ofappealability. For example, on May 4, 2016, the district
court denied plaintiffs motion to correct and reduce his sentence. Then, on May 5, 2017, the
Seventh Circuit "affirmed [the district court's ruling] as modified, concluding that (plaintiffs]
requests were unauthorized successive collateral attacks, but ordering the district court to correct
a clerical error in the judgment pursuant to Federal Rule of Criminal Procedure 36." 2
The clerical error in the judgment was the reference to "18 USC§ 444(1)." Plaintiff
was actually convicted of violating 18 U.S.C. § 844(i). United States v. Smith, 684 F. App'x
574, 575 (7th Cir. 2017). The district court issued an amended judgment, correcting the clerical
error, on May 8, 2017. Am. J., United States v. Smith, No. 1:04-cr-00463 (N.D. Ill.), May 8,
2017, ECF No. 253.
Plaintiff filed his complaint in this court on October 2, 2017, along with an application to
proceed in forma pauperis. In his complaint, he alleges that the district court did not properly
identify the statutes underlying his conviction in the criminal judgment, leading him to be
imprisoned under incorrect statutes. Specifically, he alleges that
with respect to 18 U.S.C. § 924(c)(l)(A), the district court did not identify the
relevant subsection-(i), (ii), or (iii);
18 U.S.C. § 444(I) does not exist;
with respect to 26 U.S.C. § 5821 and 26 U.S.C. § 5822, the district court did
not identify the relevant subsections-either (a), (b), or (c) for§ 5821, and (a),
(b), (c), (d), or (e) for§ 5822; and
26 U.S.C. § 5861(d) and 26 U.S.C. § 5861(f) describe the same offense,
violating the Double Jeopardy Clause of the Fifth Amendment to the United
Plaintiff further alleges that he "was unable to have the 'illegal' sentences corrected in the
district or appellate Courts and [has] decided to sue for damages on all FOUR incorrectly written
STATUTORY LAWS in [his] JUDGMENT." He therefore seeks from this court his immediate
release from prison and monetary damages of $88,400,000.
A. Jurisdiction in the United States Court of Federal Claims
Whether a court has jurisdiction to decide the merits of a case is a threshold matter. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). "The objection
that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh
v. Y & H Corp., 546 U.S. 500, 506 (2006) (citation omitted); accord Hertz Corp. v. Friend, 559
U.S. 77, 94 (2010) ("Courts have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it."); PIN/NIP, Inc. v. Platte Chem. Co., 304
F.3d 1235, 1241 (Fed. Cir. 2002) ("Jurisdiction is a threshold issue, and a court must satisfy
itself that it has jurisdiction to hear and decide a case before proceeding to the merits." (citations
omitted)). If the court finds that it lacks subject matter jurisdiction over a claim, Rule 12(h)(3) of
the Rules of the United States Court of Federal Claims requires the court to dismiss that claim.
When considering whether to dismiss a complaint for lack of jurisdiction, a court
assumes that the allegations in the complaint are true and construes those allegations in the
plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A prose plaintiffs
complaint, "'however inartfully pleaded,' must be held to 'less stringent standards than formal
pleadings drafted by lawyers' .... " Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a prose plaintiff is not excused from
meeting basic jurisdictional requirements. See Henke, 60 F.3d at 799 ("The fact that [the
plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, but it does not
excuse its failures, if such there be."). In other words, a prose plaintiff is not excused from its
burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See
McNutt v. Gen. Motors Acceptance Com., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
The ability of the United States Court of Federal Claims ("Court of Federal Claims") to
entertain suits against the United States is limited. "The United States, as sovereign, is immune
from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity "cannot be implied but must be unequivocally expressed." United
States v. King, 395 U.S. 1, 4 (1969).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States, not sounding in tort, that are founded
upon the United States Constitution, a federal statute or regulation, or an express or implied
contract with the United States. 28 U.S.C. § 149l(a)(l) (2012). However, the Tucker Act is
merely a jurisdictional statute and "does not create any substantive right enforceable against the
United States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). Instead,
the substantive right must appear in another source of law, such as a "money-mandating
constitutional provision, statute or regulation that has been violated, or an express or implied
contract with the United States." Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554
(Fed. Cir. 1994) (en bane).
B. The Court of Federal Claims Lacks Jurisdiction to Entertain Plaintiff's Claims
Plaintiffs overarching contention is that the district court imposed an illegal sentence on
him after his criminal conviction. However, the Court of Federal Claims lacks jurisdiction to
entertain criminal matters, such as claims arising under the federal criminal code or claims
regarding the conduct of criminal proceedings. See Joshua v. United States, 17 F.3d 378, 379-80
(Fed. Cir. 1994) (affirming that the Court of Federal Claims had "'no jurisdiction to adjudicate
any claims whatsoever under the federal criminal code"'); Kania v. United States, 650 F.2d 264,
268 (Ct. CL 1981) (noting that "the role of the judiciary in the high function of enforcing and
policing the criminal law is assigned to the courts of general jurisdiction and not to this court");
Schweitzer v. United States, 82 Fed. Cl. 592, 596 (2008) (holding that the Court of Federal
Claims lacks jurisdiction over challenges to "indictments, arrests, prosecutions, convictions,
imprisonment, or parole"). In addition, plaintiff cannot collaterally attack his conviction or
sentence in this court. See Joshua, 17 F.3d at 380 ("[T]he Court of Federal Claims does not have
jurisdiction to review the decisions of district courts ... relating to proceedings before those
courts."); Carter v. United States, 228 Ct. Cl. 898, 900 (1981) (per curiam) ("If plaintiff had valid
constitutional defenses to his convictions on criminal charges, he should have asserted them on
appeal in the proper court. This is not such a court and he cannot here be heard to make a
collateral attack on his convictions under the guise of a claim for money damages."). Indeed, as
explained by the United States Supreme Court:
Congress has prescribed a primary route, by appeal as of right and certiorari,
through which parties may seek relief from the legal consequences of judicial
judgments. To allow a party who steps off the statutory path to employ ... [a]
collateral attack on the judgment would-quite apart from any considerations of
fairness to the parties-disturb the orderly operation of the federal judicial system.
U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship. 513 U.S. 18, 27 (1994). Thus, the court must
dismiss plaintiffs complaint for lack of jurisdiction.
III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
As noted above, plaintiff filed, concurrent with his complaint, an application to proceed
in forma pauperis. Courts of the United States are permitted to waive the prepayment or
payment of filing fees and security under certain circumstances. 3 28 U.S.C. § 1915(a)(l).
Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all of their
assets, declares that they are unable to pay the fees or give the security, and states the nature of
the action and their belief that they are entitled to redress. Id. Further, prisoners must file "a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the complaint ... obtained from the
appropriate official of each prison at which the prisoner is or was confined," id. § 1915(a)(2), a
requirement that can be satisfied in the Court of Federal Claims by executing and filing a
"Prisoner Authorization" that authorizes the custodial facility to send the court a copy of the
prisoner's trust fund account statement. Finally, pursuant to what is known as the three-strikes
rule, Coleman v. Tollefson, 135 S. Ct. 1759, 1761-62 (2015), if a prisoner has filed three or more
suits or appeals that were dismissed as frivolous, malicious, or failing to state a claim upon
which relief can be granted, he or she is barred from initiating further suits or appeals without
first paying the filing fee, unless he or she is "under imminent danger of serious physical injury."
While the Court of Federal Claims is not generally considered to be a "court of the
United States" within the meaning of title 28 of the United States Code, the court has jurisdiction
to grant or deny applications to proceed in forma pauperis. See 28 U.S.C. § 2503(d) (deeming
the Court of Federal Claims to be "a court of the United States" for the purposes of28 U.S.C.
§ 1915); see also Matthews v. United States, 72 Fed. Cl. 274, 277-78 (2006) (recognizing that
Congress enacted the Court of Federal Claims Technical and Procedural Improvements Act of
1992, authorizing the court to, among other things, adjudicate applications to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915).
Plaintiff has substantially satisfied the requirements set forth in 28 U.S.C. § 1915(a) and
does not appear to have three strikes as described in 28 U.S.C. § l 915(g). 4 The court therefore
grants plaintiffs application to proceed in forma pauperis and waives plaintiffs prepayment of
the filing fee. Notwithstanding the court's waiver, prisoners seeking to proceed in forma
pauperis are required to pay, over time, the filing fee in full. Id. § l 915(b). Thus, plaintiff shall
be assessed, as a partial payment of the court's filing fee, an initial sum of twenty percent of the
greater of (1) the average monthly deposits into his account, or (2) the average monthly balance
in his account for the six-month period immediately preceding the filing of his complaint. Id.§
l 915(b)(1 ). Thereafter, plaintiff shall be required to make monthly payments of twenty percent
of the preceding month's income credited to his account. Id.§ 1915(b)(2). The agency having
custody of plaintiff shall forward payments from plaintiffs account to the clerk of the Court of
Federal Claims each time the account balance exceeds $10 and until such time as the filing fee is
paid in full. Id.
As explained above, the court lacks jurisdiction to consider plaintiffs claims. Thus, the
court DISMISSES plaintiffs complaint WITHOUT PREJUDICE. In addition, although the
court GRANTS plaintiffs application to proceed in forma pauperis, it directs plaintiff to pay the
filing fee in full pursuant to 28 U.S.C. § 1915(b), as previously described. No costs. The clerk
shall enter judgment accordingly.
IT IS SO ORDERED.
A search of PACER-the "electronic public access service that allows users to obtain
case and docket information online from federal appellate, district, and bankruptcy courts,"
Administrative Office of the United States Courts, Public Access to Court Electronic Records,
https://www.pacer.gov (last visited Oct. 6, 2017)-reveals that plaintiff has at least two strikes.
See Merit Review Order 3, Smith v. United States, No. 17-1285 (C.D. Ill.), June 21, 2017, ECF
No. 4 ("This dismissal shall count as, and the Clerk shall record, a 'strike' under 28 U.S.C. §
1915(g)."); Order 3, Smith v. Sanders, No. 16-3217-CV-S-SRB-P (W.D. Mo.), Aug. 15, 2016,
ECF No. 21 ("[T]his case is dismissed pursuant to 28 U.S.C. § l 915A(b)(l) (prisoner cases must
be dismissed if they are frivolous, malicious, or fail to state a claim upon which relief may be
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