AUSTIN v. USA

Filing 20

UNREPORTED OPINION AND ORDER: Granting 6 Motion to Dismiss - Rule 12(b)(1) and (6); Denying 12 Motion for Default Judgment; Granting 14 Motion to Amend Pleadings; The Clerk is directed to enter judgment. Signed by Judge Victor J. Wolski. U.S. Postal Service Certified Mail Receipt Tracking # 7017 1450 0000 1346 0973(vds) Service on parties made.

ORIGINAL
3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaims
No. 17-1656C
(Filed March 28, 2018)
NOT FOR PUBLICATION

MAR 2 8 2018

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ROBERT A. AUSTIN,
Plaintiff,
v.

THE UNITED STATES,
Defendant.

FILED

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U.S. COURT OF
FEDERAL CLAIMS

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MEMORANDUM OPINION AND ORDER
WOLSKI, Judge.
In this case brought by Robert A. Austin, Mr. Austin complains of actions
taken by the United States District Court fo1· the Southern District of Florida. For
the reasons stated below, the Court finds that it lack subject-matter jurisdiction
over plaintiff's claims. Defendant's motion to dismiss the case is accordingly
GRANTED under Rule 12(b)(l) of the Rules of the United States Court of Federal
Claims (RCFC) .

I. BACKGROUND
On November 1, 2017, Mr. Austin filed his complaint in our court. He alleges
that an employee of U .S. District Court for the Southern District of Florida
committed what he calls "a trespass of a forged instrument" by filing a motion to
dismiss a case he brought against the state of Florida. Compl. at 2. The problem
with the motion, plaintiff maintains, was that it was mailed in an envelope that was
addressed to "Robert A. Austin" rather than to "I, man Robert A. Austin," and thus
ignored his peculiar manner of referring to himself. Id.; see also Ex. E to Compl.
Mister Austin also alleges that the motion to dismiss the district court case
erroneously claimed the protections of the 11th Amendment, which he oddly argues
does not apply because of the incorporation of some Florida-based company in 1925.
Compl. at 2; see also Ex. F to Compl. And plaintiff maintains that the oath of office

7017 1450 DODO 1346 0973

taken by court employees is a contract, the violation of which constitutes
'[m]isfeasance." Compl. at 3.
The government filed a motion to dismiss this case on December 8, 2017,
arguing that plaintiff has not identified a claim against the United States or, in the
alternative, has not adequately stated a claim upon which relief can be granted.
Mot. to Dismiss at 2-7, ECF No. 6. In plaintiffs response, filed December 12, 2017,
he argues that dismissal may not rest on the arguments of counsel, complains that
the names of supervising counsel were contained on the government's motion, and
demands that he be addressed as "I, man Robert A. Austin." ECF No. 10. On
December 26, 2017, the government filed a reply noting several deficiencies in
plaintiff's arguments. Def.'s Reply, ECF No. 11.
As we have already seen, one of the common themes running through the
documents submitted by Mr. Austin is his insistence on the manner in which he is
to be addressed. On December 19, 2017, two documents he submitted were filed by
the Court, one as a motion to amend/correct the caption and the other as a motion to
require proof of legal standing. In the former document, plaintiff stated that his
proper form of address is "I, man Robert A. Austin." ECF No. 7. In the second
document, plaintiff seemed to contest government counsel's authority to represent
the government. ECF No. 8. The Court denied the motion to change the caption
and confirmed that government counsel is indeed a member of the bar of the United
States Court of Federal Claims. Order at 1-2 (Dec. 19, 2017), ECF No. 9.
The filing of the next two documents submitted by Mr. Austin have given rise
to an additional grievance on his part. Both were entered into our docket as having
been filed and served on December 29, 2017, see ECF Nos. 12 & 13, although one
was received at the Clerk's office and served on January 2, 2018. Plaintiff has
moved to amend the court's records to reflect the correct filing and service date of
his motion for default judgment. Motion to Am. Filing Error, ECF No. 14. On this
point, Mr. Austin is correct, and his motion to correct the filing error is GRANTED.
The Clerk shall change the filing and service dates of ECF No. 12 to reflect the
proper date of January 2, 2018.
Concerning the substance of the two papers, plaintiff's motion for default
judgment is difficult to decipher. Mister Austin seems to be arguing that it was
improper that the government's reply paper, in support of its motion to dismiss this
case, was signed on behalf of the attorney of record by another lawyer from the
Department of Justice. Pl.'s Mot. for Default J. at 1-2, ECF No. 12; see also Pl.'s
Mot. in Response, ECF No. 17. But as the government correctly notes, our rules
allow for documents to be signed by other attorneys who are admitted to our bar,
Def.'s Resp. at 5 (citing RCFC 83.l(c)(2)), and even were the government not to file a
reply paper, this would not be a proper ground for a default judgment under RCFC
55. The government timely filed a motion to dismiss the case on December 8, 2017.
See RCFC 12(a)(4), (b). Thus, plaintiff's motion for a default judgment is DENIED.
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The second paper was a "Notice" concerning the order filed on December 19,
2017. ECF No. 13. In this document, plaintiff frivolously maintains that the
undersigned practiced law by verifying that the government's attorney of record was
admitted to practice in our court. Id. at 1. Mister Austin also points out that his
signature on his driver's license is "I, man Robert A. Austin." Id. at 1-2. To the
extent that this can be construed as a motion for reconsideration of the Court's
decision to not change the caption of his case, the motion is DENIED, as plaintiffs
signature does not determine his legal name---which is shown as "ROBERT ALLEN
AUSTIN" on the driver's license, see id. at 2.

II. DISCUSSION
A. Subject-Matter Jurisdiction
Whether the court has subject-matter jurisdiction is a threshold issue that
may be brought up at any time, either by the parties or by the court sua sponte.
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). Pursuant to RCFC
12(h)(3), "[i]fthe court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action." In making this determination, "'the
allegations stated in the complaint are taken as true and jurisdiction is decided on
the face of the pleadings."' Folden, 379 F. 3d at 1354 (quoting Shearin v. Untied
States, 992 F.2d 1195, 1195-96 (Fed. Cir. 1993)).
The Tucker Act provides this court with jurisdiction over "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)(l). The provision of the Constitution or Act of
Congress cited as the basis for the claim must be money-mandating. See Smith v.
United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("To be cognizable under the
Tucker Act, the claim must be for money damages against the United States, and
the substantive law must be money-mandating.").

B. Analysis
Assuming that Mr. Austin's allegations are true and taking into
consideration Mr. Austin's prose status by liberally construing his arguments, see
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Durr v. Nicholson, 400 F.3d 1375, 1380
(Fed. Cir. 2005), the Court nevertheless finds that none of his claims falls within
our jurisdiction. This court cannot entertain this case unless a jurisdictional basis
has been properly invoked. See RCFC 12(h)(3).
Plaintiff's complaint concerns the actions of a federal district court, which he
believes should not have filed and granted a motion to dismiss a case he brought
against the state of Florida. Compl. at 2. But even if Mr. Austin is correct about
that case, this is not a claim that falls within our court's subject-matter jurisdiction.
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See 28 U.S.C. § 1491. Our court does not have jurisdiction over appeals of the
actions of other courts. See Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.
1994) (holding that this court "does not have jurisdiction to review the decisions of
district courts ... relating to proceedings before those courts"); Vereda, Ltda. v.
United States, 271F.3d1367, 1375 (Fed. Cir. 2001) (explaining that this court is not
an appellate tribunal, and '"does not have jurisdiction to review the decisions of
district courts"' (quoting Joshua, 17 F.3d at 380)); Petro-Hunt L.L.C. v. United
States, 862 F.3d 1370, 1385 (Fed. Cir. 2017) (holding that this court does not have
jurisdiction to review the decisions of federal court of appeal).
Moreover, to the extent plaintiff is claiming misfeasance or trespass on the
part of federal government officials, these matters would be tort claims and thus
beyond our jurisdiction. See Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir.
1988); Cycenas v. United States, 120 Fed. Cl. 485, 498 (2015). The oath of office
taken by federal employees is not a contract with any individual citizen, Farrell v.
United States, No. 09-209C, 2009 WL 3719211, at *3 (Fed. Cl. Oct. 30, 2009), and its
breach would sound in tort, and thus be beyond our jurisdiction, Nalette v. United
States, 72 Fed. CL 198, 202 (2006). And plaintiff has not identified any moneymandating statute that has allegedly been violated by the government. Thus, even
if Mr. Austin is correct about proceedings in the district court, our court is not
empowered to do anything about it. For these reasons, the government's motion to
dismiss the case for lack of subject-matter jurisdiction is GRANTED.

C. Other Matters
Two additional documents have been submitted by Mr. Austin but not filed
when received, as they were not in a form recognized for filing under our rules. The
first, received on February 27, 2018, is styled a "Motion" responding to the
government's opposition to his motion for default judgment. In this document, Mr.
Austin appears to be complaining that the reply paper filed in support of his motion
for a default judgment did not result in such a judgment being entered. The second
document, received on March 15, 2018, purports to be a criminal complaint based on
Mr. Austin's failure to receive a default judgment. These papers are frivolous, and
the Clerk is directed not to file them, but to mail them back to plaintiff.
The Court also notes that Mr. Austin has been refusing mailings from the
Clerk's office that are not addressed to "I, man Robert A. Austin." To ensure that
Mr. Austin is apprised of this opinion dismissing his case, the Clerk is directed to
mail a copy of this opinion to: Mr. Robert A. Austin, c/o I, man Robert A. Austin,
6526 SW. Kanner Hwy. #164, Stuart, FL 34997.

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III. CONCLUSION
For the r easons stated above, because plaintiff's allegations do not raise a
matter within this court's subject-matter jurisdiction, the defendant's motion to
dismiss this case under RCFC 12(b)(l) is hereby GRANTED. The Clerk is directed
to close the case.

IT IS SO ORDERED.

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