GREEN v. USA

Filing 6

Order of Dismissal. The Clerk is directed to enter judgment. Signed by Judge Margaret M. Sweeney. (ac7) Service on parties made.

IGINAL
Jfn tbe Wniteb ~tates QCourt of jfeberal QCiaims
No. 17-1886C
(Filed: January 17, 2018)
NOT FOR PUBLICATION

Plaintiff,
v.
THE UNITED STATES,
Defendant.

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JAN 17 2018
U.S. COURT OF
FEDERAL CLAIMS

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ANTHONY SPENCER GREEN, SR.,

FILED

Sua Sponte Dismissal; Subject Matter
Jurisdiction; RCFC 12(h)(3); Tmt Claims;
Breach of Contract; Implied-in-Fact
Contract; RCFC 9(k); Collateral Attack of
Prior Decisions; 28 U.S.C. § 1631; Pro Se
Plaintiff; In Forma Pauperis

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OPINION AND ORDER
In this case, plaintiff Anthony Spencer Green, Sr., proceeding prose, appears to allege
three batteries committed against him and the breach of an implied-in-fact contract by the federal
government based on the inse1tion of wireless devices into his body by the government that
transmit data to various government agencies. Plaintiff seeks $1 trillion in damages and an order
directing the government to remove the implanted hardware from his body. Plaintiff also filed
an application to proceed in forma pauperis. As explained below, the comt 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.
I. BACKGROUND
Plaintiff was born on April 27, 1978, at the Advocate Illinois Masonic Medical Center in
Chicago, Illinois. 1 Compl. if 4. At that time, plaintiff alleges, the United States Defense
Advanced Research Projects Agency ("DARPA") inserted a "frequency chip" into his body. Id.
ifif 1, 4. In 1980, plaintiff underwent an operation to alleviate a left inner ear infection. Id. if 4.
The 1980 operation took place at what is now known as the Ann & Robe1t H. Lurie Children's
Hospital of Chicago. Id. Plaintiff alleges that, during the 1980 operation, DARPA inserted a
"wireless cochlear implant/frequency chip" into his left ear. Id. Plaintiff asserts that he has
thereafter "been connected to computers and technology all his life" for the purpose of DARPA
testing via the brain-computer interface technology ("BCI") that is in his body. Id.

1

The court derives the facts in this section from the allegations set forth in plaintiffs
complaint and facts of which the court may take judicial notice pursuant to Rule 201 of the
Federal Rules of Evidence.

7017 1450 DODD 1346 4254

In December 2011, plaintiff was taken to the Brooke Army Medical Center ("BAMC") in
San Antonio, Texas for treatment following an accident involving a minivan. 2 Gamez, slip op. at
1. Plaintiff alleges that, while receiving treatment at the BAMC, a "neural prosthetic" device
was inserted into his body by the United States Army. Comp!. if 4. Plaintiff states that the
neural prosthetic device connects him to DARPA, the BAMC, the United States National
Aeronautics and Space Administration ("NASA"), "other government agencies," and various
"virtual reality computer gaming programs." Id. Plaintiff avows that he has never been
compensated for his forced participation in DARPA's medical research. Id. Plaintiff further
asserts that the "abuse" he has suffered at the hands ofDARP A, the BAMC, and NASA due to
the BCI present in his body has rendered him unable to work and places him at a "high chance"
of contracting an unspecified disease because of the radiation emitting from the transmitters. Id.
Plaintiff avows that his only source of income is Supplemental Security Income due to his
inability to work, which plaintiff refers to as "SSI-disability."3 Id.
Over the past two years, plaintiff has filed numerous federal lawsuits seeking redress for
the abuse he alleges to have suffered. Although the lawsuits assert different legal theories, they
all stem from the same operative facts-the insertion of hardware into plaintiffs body, the
continuous monitoring of plaintiffs thoughts and actions, and the lack of compensation paid to
plaintiff by the federal government for his unwilling participation in DARPA's research
programs. The following case filed by plaintiff, in which he alleges the same operative facts as
in the instant complaint, was dismissed as frivolous:
•

Green v. NASA Dir., 1: 16-cv-02387, slip op. at 2 (D.D.C. Dec.
7, 2016).

In addition, the following cases filed by plaintiff, in which he alleges the same operative facts as
in the instant complaint, were dismissed for failure to state a claim upon which relief could be
granted:
•

Green v. Ann & Robert H. Lurie Children's Mem'l Hosp., No.
16-cv-09954 (N .D. Ill. Sept. 28, 2017) (order dismissing case);

•

Green v. Def. Advanced Research Projects Agency, No. 1:17cv-647 (E.D. Va. June 19, 2017) (order dismissing case), affd,

2

In his complaint, plaintiff describes the BAMC treatment as taking place in December
2011. Comp!. if 4. Plaintiff has also described the treatment as having taken place in December
2012. See, e.g., Green v. Gamez ("Gamez"), No. SA-16-CV-01159, slip. op. at 1 (W.D. Tex.
Nov. 28, 2017). The court uses the date referenced by plaintiff in his complaint. However, the
distinction is immaterial with respect to the instant case.
3

Supplemental security income is a benefit provided under the Social Security Act for
individuals who are age 65 or older, blind, or disabled, and meet certain income and resource
requirements. 42 U.S.C. §§ 1381, 138la (2012).

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699 F. App'x 175 (4th Cir. 2017) (unpublished memorandum
decision); and
•

Green v. Creighton/CHI Health, No. 8:16CV480, slip op. at 4
(D. Neb. Feb. 3, 2017), affd, No. 17-1462 (8th Cir. July 25,
2017). 4

Finally, the following cases filed by plaintiff, in which he alleges the same operative facts as in
the instant complaint, were dismissed upon both grounds-i.e., frivolous and failure to state a
claim upon which relief could be granted:
•

Gamez, slip op. at 6; and

•

Green v. Griffin, No. 4:17-cv-02145 (S.D. Tex. July 12, 2017)
(order dismissing case), appeal dismissed, No. 17-20501 (5th
Cir. Sept. 29, 2017).

Plaintiff subsequently filed suit in this court on December 6, 2017.

II. LEGAL STANDARDS
A. Pro Se Plaintiffs
Pro se pleadings are "held to less stringent standards than formal pleadings drafted by
lawyers" and are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (internal quotation marks omitted). However, the "leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States, 75 Fed. CL 249, 253 (2007); accord Henke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995) ("The fact that [the plaintiff] acted prose 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 pro se plaintiff is not excused from its burden of proving, by a preponderance of
evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Com.,
298 U.S. 178, 179 (1936); Banks v. United States, 741F.3d1268, 1277 (Fed. Cir. 2014) (citing
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).

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In Green v. Creighton/CHI Health, plaintiff alleged that medical personnel at
Creighton/CHI Health violated his civil rights because they "refused to perform a CT scan or
MRI on [plaintiffs] leg that contains a titanium rod." Slip op. at 1. Plaintiff had alleged the
titanium rod was "connected to a 'medical cloning computer program"' that caused the
manifestation of various physical symptoms. Id. at 1-2.

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B. Subject Matter Jurisdiction
Whether the court possesses jurisdiction to decide the merits of a case is a "threshold
matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Subject matter
jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case."
United States v. Cotton, 535 U.S. 625, 630 (2002), quoted in Arbaugh v. Y & H Coro., 546 U.S.
500, 514 (2006). "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). Therefore, it is "an inflexible matter that must be considered before proceeding
to evaluate the merits of a case." Matthews v. United States, 72 Fed. CL 274, 278 (2006); accord
K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party,
or the court sua sponte, may challenge the court's subject matter jurisdiction at any time.
Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. CL 203, 209-10 (2016)
(collecting cases).
In determining whether subject matter jurisdiction exists, the court generally "must
accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable
inferences in favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). However, the court has no subject matter jurisdiction over frivolous
claims. Maden v. United States, 404 F.3d 1335, 1340-41 (Fed. Cir. 2005). For example, there is
no subject matter jurisdiction over claims that are "so insubstantial, implausible, foreclosed by
prior decisions ... , or otherwise completely devoid of merit as not to involve a federal
controversy." Id. at 1341 (internal quotation marks 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 ("RCFC") requires the court to dismiss that claim.
C. The Tucker Act
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 "may not be inferred, but must be unequivocally expressed." United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Further, "[w]hen waiver
legislation contains a statute of limitations, the limitations provision constitutes a condition on
the waiver of sovereign immunity." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,
461 U.S. 273, 287 (1983).
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. § 1491(a)(l) (2012); White Mountain, 537 U.S. at
472. 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, 298 (1976). Instead, the substantive right must appear in another source of

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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).

D. Breach-of-Contract Claims
In contract disputes, the "money-mandating requirement for Tucker Act jurisdiction
normally is satisfied by the presumption that money damages are available for breach of
contract." 5 Holmes, 657 F.3d at 1314. Therefore, a "non-frivolous allegation of a contract with
the government" is generally sufficient to invoke the court's Tucker Act jurisdiction. Engage
Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (emphasis added). The court's
jurisdiction over implied contracts extends to claims involving implied-in-fact contracts, but not
to claims involving implied-in-law contracts. Hercules, Inc. v. United States, 516 U.S. 417, 423
(1996). An implied-in-fact contract results from a "meeting of minds, which, although not
embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the
light of the surrounding circumstances, their tacit understanding." Id. at 424 (internal quotation
marks omitted). An implied-in-law contract is a "fiction of law where a promise is imputed to
perform a legal duty, as to repay money obtained by fraud or duress." Id. (internal quotation
marks omitted). The requirements for an implied-in-fact contract with the government "are the
same as for an express contract":
(I) mutuality of intent,
(2) consideration,
(3) an unambiguous offer and acceptance, and
(4) "actual authority" on the part of the government's
representative to bind the government in contract.
Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). The only difference between
express contracts and implied-in-fact contracts is the nature of the evidence required. Id.
Even when a plaintiff properly alleges a contract with the government, the Court of
Federal Claims cannot exercise its jurisdiction unless the plaintiff also satisfies the pleading
requirements set forth in RCFC 9(k). See, e.g., Baha v. United States, 123 Fed. Cl. 1, 5 n.4
(2015) ("Satisfaction ofRCFC 9(k) is a jurisdictional requirement."); see also Huntington
Promotional & Supply, LLC v. United States, 114 Fed. Cl. 760, 766 (2014) ("If a plaintiff fails
to comply with RCFC 9(k) and to allege sufficient facts to show that it had a contract with the
United States, the court cannot exercise jurisdiction over the claim."); Kissi v. United States, 102
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The mere existence of a contract, however, does not automatically give rise to the
court's Tucker Act jurisdiction because not all contracts contemplate money damages. See
Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011) (describing contracts that do not
fall within the reach of the Tucker Act).

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Fed. Cl. 31, 35 (2011) (finding no jurisdiction based on the plaintiff's failure to show an existing
contract and failure to "adequately plead a contract claim under RCFC 9(k)"). RCFC 9(k)
requires a party, "[i]n pleading a claim founded on a contract," to "identify the substantive
provisions of the contract ... on which the party relies."

III. DISCUSSION
Under a liberal construction of plaintiffs pro se complaint, plaintiff has alleged three
batteries-one each for the 1978, 1980, and 2011 insertions ofBCI into his body without his
consent. Plaintiff also attempts to allege, under a liberal construction of his complaint, breach of
an implied-in-fact contract.

A. The Court Lacks Jurisdiction Over Battery Claims
To the extent that plaintiff seeks relief in this court based on alleged tortious conduct, the
Court of Federal Claims lacks jurisdiction.
The jurisdiction of this court only extends to certain claims "not sounding in tort." 28
U.S.C. § 1491(a)(l). Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(l), 2671-2680,
jurisdiction over tort claims against the United States lies exclusively in federal district courts.
U.S. Marine, Inc. v. United States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013). The Court of
Federal Claims is not a district court. Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir.
2002); see also Lightfoot v. Cendant Mortg. Com., 137 S. Ct. 553, 563 (2017) (distinguishing
between the "Court of Federal Claims" and "federal district courts").
Claims of assault and battery are torts. See, e.g., Burman v. United States, 75 Fed. Cl.
727, 729 (2007) (listing various torts). Therefore, the only proper forum for such claims against
the federal government is federal district court.
The only exception to the rule precluding the Court of Federal Claims from entertaining
tort claims is for a tort claim that "stems from a breach of contract" claim. Awad v. United
States, 301 F.3d 1367, 1372 (Fed. Cir. 2002). In such a case, "the cause of action is ultimately
one arising in contract, and thus is properly within the exclusive jurisdiction of the Court of
Federal Claims." Id.; accord Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741, 745 (1980)
("Where . . . a claim is based on breach of contract it is properly within the jurisdiction of this
court even though it also alleges that defendant engaged in tortious conduct in breaching the
contract."). In Demodulation, Inc. v. United States, 103 Fed. Cl. 794, 813-14 (2012), this court
observed that if it dismissed the counts alleging breach of contract, it would also "necessarily"
dismiss the tortious claims arising out of those purported contracts. In other words, tortious
breach-of-contract claims cannot survive ifthe underlying contractual claims are dismissed. See,
~, Nesselrode v. United States, 127 Fed. Cl. 421, 430 (2016) (dismissing a fraud claim based
on a breach of contract for lack of subject matter jurisdiction when the plaintiff failed to state a
plausible breach-of-contract claim). However, the contract-based exception does not apply in the
instant case. Although plaintiff's tort allegations are related to plaintiffs breach-of-contract
allegations (which are discussed below), the tott allegations do not "stem from" the breach-of-

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contract allegations because, unlike in N esselrode and Demodulation, each set of allegations can
be decided independently of the other.
B. The Court Lacks Jurisdiction Over Plaintiff's Breach-of-Contract Claim

The court construes plaintiffs allegation that the federal government has not
compensated him for his participation in DARPA's research as an allegation that the federal
government had an implied-in-fact contractual obligation to do so.
Although nonfrivolous breach-of-contract allegations are within this court's Tucker Act
jurisdiction, plaintiff has failed to allege the necessary elements-mutuality, consideration, offer
and acceptance, and actual authority---of a contract with the government. Plaintiff's repeated
averments that BCI was inserted into his body against his will clearly demonstrate that there was
no "meeting of the minds" or conduct from which such an agreement could be inferred. 6
Further, plaintiff has failed to satisfy the RCFC 9(k) pleading requirements because no
substantive provisions of the alleged implied-in-fact contract have been identified. Therefore,
even if plaintiff had sufficiently alleged the existence of a contract with the federal government,
plaintiff's failure to comply with RCFC 9(k) dooms that portion of his complaint.
C. The Court Lacks Jurisdiction to Entertain Plaintiff's Collateral Attack Against the
Decisions of Other Courts

In addition to alleging tort claims and a breach-of-contract claim, plaintiff appears to
attempt a collateral attack on the decisions of various federal district and appellate courts.
However, the Tucker Act does not provide the Court of Federal Claims with jurisdiction to
entertain collateral attacks on decisions of other courts. 28 U.S.C. § 1491(a); see, e.g.,
Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed. Cir. 2015) ("Binding
precedent establishes that the Court of Federal Claims has no jurisdiction to review the merits of
a decision rendered by a federal district court."); Vereda, Ltda. v. United States, 271F.3d1367,
1375 (Fed. Cir. 2001) ("[T]he Court of Federal Claims cannot entertain a taking claim that
requires the court to scrutinize the actions of another tribunal." (internal quotation marks
omitted)).
Plaintiffs recourse concerning prior adverse decisions is "the statutorily defined
appellate process." Shinnecock Indian Nation, 782 F.3d at 1353 (citing 28 U.S.C. § 1291),
whether in state or federal court. This court cannot entertain collateral attacks on prior decisions
of other courts.

6

Plaintiffs allegations that his participation in the purported DARPA research was
against his will also belie any possibility of an express contract. In addition, since the Court of
Federal Claims has no jurisdiction over implied-in-law contracts, construing plaintiffs complaint
in such a manner would be superfluous.

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D. The Court Declines to Transfer This Case
When the Court of Federal Claims lacks jurisdiction over a claim, it is empowered to
transfer such claim to an appropriate court if doing so "is in the interest of justice." 28 U.S.C.
§ 1631. "Transfer is appropriate when three elements are met: (1) [t]he transferring court lacks
subject matter jurisdiction; (2) the case could have been filed in the court receiving the transfer;
and (3) the transfer is in the interests of justice." Brown v. United States, 74 Fed. CL 546, 550
(2006).
In the instant case, the first two elements are met with respect to plaintiffs battery claims
because, as discussed above, (1) the Court of Federal Claims lacks jurisdiction over tort claims
and (2) plaintiffs tort claims are subject to the exclusive jurisdiction of the federal district courts.
However, transferring plaintiffs case to an appropriate district court will not "serve the interests
of justice." Khalil v. United States, 133 Fed. CL 390, 393 (2017). In Khalil, another judge of
this court declined to transfer the case because doing so would "serve[] no purpose" since the
plaintiffs claims had already been considered by a district court. Id. In the instant case, plaintiff
has similarly "already availed himself of the opportunity," id., to present his claims against the
federal goverrunent to a district court. In other words, the courts that would have jurisdiction
have already considered plaintiffs claims. Therefore, as in Khalil, transferring plaintiffs battery
claims would be futile.
With respect to plaintiffs breach-of-contract claim, the first element is met because, as
discussed above, this court lacks jurisdiction to consider plaintiffs breach-of-contract claim.
However, the second element is not met. The jurisdiction of federal district courts to consider
contract claims against the federal government is limited to claims "not exceeding $10,000 in
amount." 28 U.S.C. § 1346(a)(2). In the instant case, plaintiff seeks damages of$1 trillion, thus
exceeding the amount allowable in district court. 7 Therefore, the court carmot transfer plaintiffs
breach-of-contract claim.
In sum, the court declines to transfer any part of plaintiffs case to another court.

7

The failure of the second element also results in a failure of the third element; since a
district court would not have jurisdiction over plaintiffs breach-of-contract claim, transferring
that claim would not serve the interests of justice.

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IV. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

As noted above, plaintiff filed, concurrent with the complaint, an application to proceed
in forma pauperis. Pursuant to 28 U.S.C. § 1915, federal courts are permitted to waive filing fees
and security under ce1iain circumstances. 8 See 28 U.S.C. § 1915(a)(l); see also Waltner v.
United States, 93 Fed. Cl. 139, 141 n.2 (2010) (concluding that 28 U.S.C. § 1915(a)(l) applies to
both prisoners and non-prisoners alike). Plaintiffs wishing to proceed in forma pauperis must
submit an affidavit that (1) lists all of their assets, (2) declares that they are unable to pay the fees
or give the security, and (3) states the nature of the action and their belief that they are entitled to
redress. 28 U.S .C. § 1915(a)(l). Determination of ability to pay is "left to the discretion of the
presiding judge, based on the information submitted by the plaintiff." Alston-Bullock v. United
States, 122 Fed. CL 38, 45 (2015). Here, plaintiff has fulfilled all three requirements, and the
court is satisfied that plaintiff is unable to pay the filing fee otherwise required by RCFC 77 .1(c).
Therefore, the court grants plaintiffs application and waives his filing fee.
V. CONCLUSION
The Comi of Federal Claims lacks jurisdiction over claims involving battery. The court
also lacks jurisdiction over plaintiff's breach-of-contract claim because plaintiff has failed to
sufficiently allege the breach of an implied contract. In any event, plaintiff has failed to comply
with the pleading requirements of RCFC 9(k). Further, the court lacks jurisdiction to entertain
collateral attacks on the decisions of other courts. Transferring plaintiff's case to a district court
is not in the interests of justice because the appropriate district courts (1) have already considered
plaintiff's battery claims against the federal government and rejected them, and (2) cannot
exercise jurisdiction over plaintiffs breach-of-contract claim.
Accordingly, plaintiff's complaint is DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction. Plaintiff's application to proceed in forma pauperis is GRANTED.
No costs. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.

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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 purposes of28
u.s.c. § 1915).

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