WILKES v. USA

Filing 6

Order of Dismissal. The Clerk is directed to enter judgment. Signed by Senior Judge Marian Blank Horn. (jm5) Service on parties made.

In the United States Court of Federal Claims
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VICTOR GLEN WILKES,
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Plaintiff,
No. 18-715C
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Filed: July 17, 2018
v.
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UNITED STATES,
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Defendant.
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Rose M. Feller, Feller Law PA, Lake Mary, FL, for the plaintiff.
Steven M. Mager, Civil Division, United States Department of Justice,
Washington, D.C., for defendant.
ORDER
HORN, J.
On May 21, 2018, plaintiff, Victor Glen Wilkes, filed a complaint titled, “UNJUST
CONVICTION AND IMPRISONMENT 28 U.S.C. §§ 1495, 2513,” (capitalization in
original), in the United States Court of Federal Claims alleging that he was wrongfully
convicted by defendant, the United States, in 2004 “for violating 18 U.S.C. § 924(e), and
was imprisoned solely in relation thereto from as early as May of 2004 until July of 2017.”
Plaintiff also filed an Application to Proceed In Forma Pauperis on May 21, 2018. Plaintiff
seeks monetary damages, “at least equal to $136.99 per day for 13 years, 1 month, and
23 days, or $657,260.47 . . . as well as attorney fees and the costs of this action,” citing
to 28 U.S.C. § 1495 (2012) and 28 U.S.C. § 2515 (2012).
FACTS
According to plaintiff’s complaint, in 2004, plaintiff was convicted “of violating 18
U.S.C. § 922(g) (felon in possession of a firearm), and § 924(e) (armed career criminal),”
and “received a sentence of 189 months” in prison. Plaintiff asserts that without the 18
U.S.C. § 924(e) conviction, he “would have been sentenced to no more than 8 months in
prison, and likely would have received no more than 2 months in prison.” The complaint
alleges:
In February of 2016, Wilkes sought permission from the Fourth Circuit Court
of Appeals to file a second or successive Motion to Vacate his sentence on
the ground that his § 924(e) conviction was illegal and that he was actually
innocent of that conviction because certain of his prior crimes could not be

used under § 924(e) because they were not “convictions” under South
Carolina law and were, instead, “treatments” under South Carolina’s
Youthful Offender Act, and because even if they were convictions, they
were not “violent felonies” for purposes of § 924(e).
Plaintiff’s complaint also states that while he was in custody, he appealed his
conviction and filed several habeas corpus motions. Exhibits attached to plaintiff’s
complaint appear to indicate that plaintiff was granted permission by the United States
Court of Appeals for the Fourth Circuit, “to file a second or successive motion under
§ 2255,” and that he subsequently filed a Motion to Vacate on May 3, 2016 in the United
States District Court for the District of South Carolina – Florence Division. On July 26,
2016, plaintiff filed an unopposed motion in the United States District Court for the District
of South Carolina, for release from custody, as well as a, “Memorandum in Support of his
Motion to Vacate (Dkt. #68-1).” On August 3, 2016, a Judge of the United States District
Court for the District of South Carolina, ordered the United States Attorney for the District
of South Carolina to respond within 30 days. On September 6, 2016, an Assistant United
States Attorney for the District of South Carolina – Florence Division, and the Assistant
Federal Public Defender on behalf of the plaintiff, entered into a joint motion to vacate,
whereby the United States consented to:
Wilkes’ claims of innocence as set forth in the Motion and Memorandum,
on the ground that his prior crimes could not be used under § 924(e)
because (1) they were not “convictions” under South Carolina law and were,
instead, “treatments” . . . and (2) because, even if they were convictions,
they were not “violent felonies” for purposes of § 924(e).
Plaintiff’s complaint states that, thereafter “[t]he district court vacated Wilkes’ § 924(e)
conviction and ordered that Wilkes’ Presentence Report be amended to reflect his proper
Guideline Sentencing Range, based solely on his conviction under § 922(g).” 1 Plaintiff
claims that his revised sentencing range under 18 U.S.C. § 922(g) was 2 to 8 months, as
compared to his previous sentencing range under 18 U.S.C. § 924(e), which was 188235 months. Plaintiff also alleges that, “[d]espite the government’s admission that Wilkes
was actually innocent of his § 924(e) conviction . . . the district court took no action until
counsel for Wilkes filed a motion for immediate re-sentencing on May 23, 2017.”2
In addition to seeking $657,260.47 and attorneys’ fees and costs, Mr. Wilkes also
indicates that during his conviction he performed jobs for the benefit of the government
“for much less than an adequate wage,” and “experienced loss of income, consortium,

1

Plaintiff did not provide any record of such an order to substantiate his statements when
he filed his complaint in this court.
Plaintiff also did not include any record of the plaintiff’s motion for re-sentencing.
Furthermore, although plaintiff’s complaint references a sentencing hearing on June 28,
2017, as well as a court order of his release, he also did not provide a record to
substantiate either of those events.
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enjoyment of time with his family, loss of liberty, and suffered from the emotional trauma
of spending day after day in federal prison.”
DISCUSSION
As noted above, along with his complaint plaintiff filed an Application to Proceed
In Forma Pauperis. In order to provide access to this court for those who cannot pay the
filing fees mandated by Rule 77.1(c) (2018) of the Rules of the United States Court of
Federal Claims (RCFC), 28 U.S.C. § 1915 (2012) permits a court to allow a plaintiff to file
a complaint without payment of fees or security, under specific circumstances. Section
1915(a)(1) states that:
Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner[3] possesses [and] that the person is unable to pay

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A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding in
forma pauperis applications by non-prisoner litigants in federal courts, and have
concluded that Congress did not intend for non-prisoners to be barred from being able to
proceed in forma pauperis in federal court. See, e.g., Manning v. United States, 123 Fed.
Cl. 679, 682-83 (2015) (“The Federal Circuit has in effect endorsed this construction of
Section 1915 in a non-precedential decision. See Jackson v. United States, 612 Fed.
Appx. 997, at *2 (Fed. Cir. May 18, 2015) (affirming a Court of Federal Claims dismissal
of a non-prisoner’s complaint for frivolousness under Subparagraph 1915(e)(2)(B))”);
Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies
to all persons applying for [in forma pauperis] status, and not just to prisoners.”); Haynes
v. Scott, 116 F.3d 137, 139 (5th Cir. 1997) (noting that “[t]here is no indication in the
statute or the legislative history of [§ 1915] that Congress meant to curb [in forma
pauperis] suits by nonprisoners.”); Floyd v. United States Postal Serv., 105 F.3d 274, 27576 (6th Cir.), reh’g denied (6th Cir. 1997); Schagene v. United States, 37 Fed. Cl. 661,
663 (1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998); see also In re Prison
Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (discussing how to administer
in forma pauperis rights to a non-prisoner, thereby acknowledging the rights of nonprisoners to apply for in forma pauperis status); Leonard v. Lacy, 88 F.3d 181, 183 (2d
Cir. 1996) (using “sic” following the word “prisoner” in 28 U.S.C. § 1915(a)(1) seemingly
to indicate that the use of that word was too narrow); Smith v. United States, 113 Fed. Cl.
241, 243 (2013); Powell v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that
a “fair reading of the entire section [28 U.S.C. § 1915(a)(1)] is that it is not limited to
prisoner suits.”). Moreover, 28 U.S.C. § 1915(a)(1) refers to both “person” and “prisoner.”
The word “person” is used three times in the subsection, while the word “prisoner” is used
only once. This court, therefore, finds that the single use of the word “prisoner” in the
language of 28 U.S.C. § 1915(a)(1) was not intended to eliminate a non-prisoner from
proceeding in federal court in forma pauperis, provided that the civil litigant can
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such fees or give security therefor. Such affidavit shall state the nature of
the action, defense or appeal and affiant's belief that the person is entitled
to redress.
28 U.S.C. § 1915(a)(1). Therefore, the statute at 28 U.S.C. § 1915(a)(1) requires a person
to submit an affidavit with a statement of all the applicant’s assets, and that the affidavit
state the nature of the action, defense or appeal and affiant’s belief that the person is
entitled to redress. See id.
When enacting the in forma pauperis statute, 28 U.S.C. § 1915, Congress
recognized that “‘a litigant whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)); see also McCullough v. United States, 76
Fed. Cl. 1, 3 (2006), appeal dismissed, 236 F. App’x 615 (Fed. Cir.), reh'g denied (Fed.
Cir.), cert. denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e)
in the in forma pauperis statute, which allows courts to dismiss lawsuits determined to be
“frivolous or malicious.” 28 U.S.C. § 1915(e). The United States Supreme Court has found
that “a court may dismiss a claim as factually frivolous only if the facts alleged are ‘clearly
baseless’ . . . a category encompassing allegations that are ‘fanciful’ . . . ‘fantastic’ . . .
and ‘delusional . . . .’” Denton v. Hernandez, 504 U.S. at 32-33 (internal citations omitted);
see also Floyd v. United States, 125 Fed. Cl. 183, 191 (2016); Jones v. United States,
122 Fed. Cl. 543, 545 (2015); McCullough v. United States, 76 Fed. Cl. At 3 ; Schagene
v. United States, 37 Fed. Cl. at 663. Courts, however, should exercise caution in
dismissing a case under section 1915(e) because a claim that the court perceives as
unlikely to be successful is not necessarily frivolous. See Denton v. Hernandez, 504 U.S.
at 33. As stated by the United States Supreme Court, “a finding of factual frivolousness
is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts available to contradict
them.” Id.
The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is “unable
to pay such fees or give security therefor.” Determination of what constitutes “unable to
pay” or unable to “give security therefor,” and therefore, whether to allow a plaintiff to
proceed in forma pauperis is left to the discretion of the presiding judge, based on the
information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men’s Colony,
Unit II Men’s Advisory Council, 506 U.S. 194, 217–18 (1993); Roberson v. United States,
115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App’x 966 (Fed. Cir. 2014); Fuentes v.
United States, 100 Fed. Cl. 85, 92 (2011). This court and its predecessors were
established to make available a user friendly forum in which plaintiffs can submit their
legitimate claims against the sovereign, limited only by the legislative decision to waive
sovereign immunity as to the types of claims allowed. In fact, prominently posted at the
entrance to this courthouse are the words of Abraham Lincoln: “It is as much the duty of
demonstrate appropriate need. Any other interpretation is inconsistent with the statutory
scheme of 28 U.S.C. § 1915.
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government to render prompt justice against itself, in favor of citizens, as it is to administer
the same, between private individuals.”
Interpreting an earlier version of the in forma pauperis statute, the United States
Supreme Court offered the following guidance:
We cannot agree with the court below that one must be absolutely destitute
to enjoy the benefit of the statute. We think an affidavit is sufficient which
states that one cannot because of his poverty “pay or give security for the
costs . . . and still be able to provide” himself and dependents “with the
necessities of life.” To say that no persons are entitled to the statute's
benefits until they have sworn to contribute to payment of costs, the last
dollar they have or can get, and thus make themselves and their
dependents wholly destitute, would be to construe the statute in a way that
would throw its beneficiaries into the category of public charges. The public
would not be profited if relieved of paying costs of a particular litigation only
to have imposed on it the expense of supporting the person thereby made
an object of public support. Nor does the result seem more desirable if the
effect of this statutory interpretation is to force a litigant to abandon what
may be a meritorious claim in order to spare himself complete destitution.
We think a construction of the statute achieving such consequences is an
inadmissible one.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (omissions in
original). In Fiebelkorn v. United States, for example, a Judge of the United States Court
of Federal Claims indicated that:
[T]he threshold for a motion to proceed in forma pauperis is not high: The
statute requires that the applicant be ‘unable to pay such fees.’ 28 U.S.C.
§ 1915(a)(1). To be ‘unable to pay such fees’ means that paying such fees
would constitute a serious hardship on the plaintiff, not that such payment
would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007); see also McDermott v. United
States, 130 Fed. Cl. 412, 414 (2017) (quoting Fiebelkorn v. United States, 77 Fed. Cl. at
62); Fuentes v. United States, 100 Fed. Cl. at 92; Brown v. United States, 76 Fed. Cl.
762, 763 (2007); Hayes v. United States, 71 Fed. Cl. 366, 369 (2006).
In his Application to Proceed In Forma Pauperis, plaintiff Victor Glen Wilkes
indicates that he is employed and his salary is “13 per hour 40 per week.” Because Mr.
Wilkes only provided his hourly rate, his annual take-home salary is unclear. Mr. Wilkes
also stated that he owns a boat valued at $3,500.00, and has $1,500.00 in his checking
account, noting that the total reflected a recent paycheck deposit. Mr. Wilkes estimated
his monthly expenses for room and board total $450.00, and indicated he pays $271.00
“for a bank loan.” Because no record of the bank loan was included in the monthly
expenses inquiry, it is unclear whether this is a balance or a reoccurring payment. Mr.
Wilkes indicated he did not receive any money from the following sources in the past year:
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“Business, profession, or other forms of self-employment,” “[r]ent payments, interest, or
dividends,” “[p]ensions, annuities, or life insurance payments,” or, “[g]ifts or inheritances.”
Mr. Wilkes’ application does not declare responsibility for any dependents, nor does he
mention any additional debts or expenses.
The court recognizes that Mr. Wilkes has retained representation by counsel for
the instant lawsuit. In order to determine how this representation relates to Mr. Wilkes’
possible in forma pauperis eligibility, the court would need clarification as to how such
representation is being paid for, or if Ms. Rose Feller, plaintiff’s counsel of record in the
current case, is representing Mr. Wilkes pro bono.
Based on the limited information provided by Mr. Wilkes in his Application to
Proceed In Forma Pauperis, the court cannot, at this time, conclude that plaintiff would
suffer a substantial hardship if required to pay court fees. See Fiebelkorn v. United States,
77 Fed. Cl. at 62; see also Hayes v. United States, 71 Fed. Cl. at 369. Therefore, plaintiff
Victor Glen Wilkes has not yet demonstrated eligibility pursuant to 28 U.S.C. § 1915 to
pursue this action in forma pauperis. Mr. Wilkes’ Application to Proceed In Forma
Pauperis, however, is moot, at this time because, as discussed below, his complaint is
being dismissed, without prejudice, for lack of jurisdiction.
“Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)). The Tucker Act,
28 U.S.C. § 1491, grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction 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)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114,
1116 (Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States,
566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521
6

F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States.”); Golden
v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v.
United States, the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605–06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’” (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.
[392,] 401-02 [1976] (“Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a “money-mandating”
statute.
Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
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premised on other sources of law (e.g., statutes or contracts).”). “‘If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under
the Tucker Act.”); Price v. United States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United
States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. at 94 (“[W]hen ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint.” (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2018); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555-57, 570. To properly state a claim for relief, “[c]onclusory
allegations of law and unwarranted inferences of fact do not suffice to support a claim.”
Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint
Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part,
dissenting in part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory
allegations unsupported by any factual assertions will not withstand a motion to dismiss.”),
aff’d, 460 U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief
above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S
Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir.
2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555.
Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 555).

8

In general, the jurisdiction of the United States Court of Federal Claims does not
include jurisdiction over criminal causes of action. See Joshua v. United States, 17 F.3d
378, 379 (Fed. Cir. 1994);4 see also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012)
(holding that “this court does not have jurisdiction over [plaintiff’s] claims because the
court may review neither criminal matters, nor the decisions of district courts.”) (internal
citations omitted). Mendes v. United States, 88 Fed. Cl. 759, 762, appeal dismissed, 375
F. App’x 4 (Fed. Cir. 2009); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (holding
that the United States Court of Federal Claims lacked jurisdiction over claims arising from
the violation of a criminal statute); Fullard v. United States, 78 Fed. Cl. 294, 301 (2007)
(“Plaintiff alleges criminal fraud, a subject matter over which this court lacks jurisdiction.”)
(citing 28 U.S.C. § 1491); see also McCullough v. United States, 76 Fed. Cl. 1, 4 (2006)
(finding that the court lacked jurisdiction to consider plaintiff’s criminal claims), appeal
dismissed, 236 F. App’x 615 (Fed. Cir.), reh’g denied (Fed. Cir.), cert. denied 552 U.S.
1050 (2007); Matthews v. United States, 72 Fed. Cl. 274, 282 (finding that the court lacked
jurisdiction to consider plaintiff’s criminal claims), recons. denied, 73 Fed. Cl. 524 (2006).
Plaintiff asserts, however, that this court has jurisdiction to adjudicate his claim of
unjust conviction and imprisonment under 28 U.S.C. § 1495. It is correct that according
to 28 U.S.C. § 1495, “[t]he United States Court of Federal Claims shall have jurisdiction
to render judgment upon any claim for damages by any person unjustly convicted of an
offense against the United States and imprisoned.” 28 U.S.C. § 1495. In Humphrey v.
United States, this court stated that Section 1495 of Title 28, “must be read in conjunction
with 28 U.S.C. § 2513.” Humphrey v. United States, 52 Fed. Cl. 593, 596 (2002), aff’d, 60
F. App’x 292 (Fed. Cir. 2003) (citations omitted); see also Abu-Shawish v. United States,
120 Fed. Cl. 812, 813 (2015) (“To establish jurisdiction, however, a plaintiff seeking
compensation under Section 1495 must also meet the requirements of 28 U.S.C. §
2513(a)(1).”). The statute at 28 U.S.C. § 2513 states:
(a) Any person suing under section 1495 of this title must allege and prove
that:
(1) His conviction has been reversed or set aside on the ground
that he is not guilty of the offense of which he was convicted, or on
new trial or rehearing he was found not guilty of such offense, as
appears from the record or certificate of the court setting aside or
reversing such conviction, or that he has been pardoned upon the
stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds,
or omissions in connection with such charge constituted no offense
against the United States, or any State, Territory or the District of

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The Court of Appeals for the Federal Circuit recently reaffirmed in an unpublished
opinion that “[t]he Court of Federal Claims likewise lacks jurisdiction to adjudicate claims
brought under federal or state criminal statutes.” Spitters v. United States, 710 F. App’x
896, 897 (Fed. Cir. 2018) (citing Joshua v. United States, 17 F.3d at 379).
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Columbia, and he did not by misconduct or neglect cause or bring
about his own prosecution.
(b) Proof of the requisite facts shall be by a certificate of the court or pardon
wherein such facts are alleged to appear, and other evidence thereof
shall not be received.
(c) No pardon or certified copy of a pardon shall be considered by the
United States Court of Federal Claims unless it contains recitals that the
pardon was granted after applicant had exhausted all recourse to the
courts and that the time for any court to exercise its jurisdiction had
expired.
(d) The Court may permit the plaintiff to prosecute such action in forma
pauperis.
(e) The amount of damages awarded shall not exceed $100,000 for each
12-month period of incarceration for any plaintiff who was unjustly
sentenced to death and $50,000 for each 12-month period of
incarceration for any other plaintiff.
28 U.S.C. § 2513 (emphasis in original); see also Abu-Shawish v. United States, 120 Fed.
Cl. at 813 (“[I]n order for this court to have jurisdiction, a plaintiff must obtain a certificate
of innocence from the district court which states that not only was he not guilty of the
crime of conviction, but also that none of his acts related to the charged crime were other
crimes.”); Carpenter v. United States, 118 Fed. Cl. 712, 713 (2014) (“Jurisdiction
conferred by Section 1495 is limited to a plaintiff who proves that his conviction has been
reversed or set aside on the grounds that he is not guilty . . . or that he has been
pardoned.”), aff’d, 603 F. App’x 935 (Fed. Cir. 2015). In Humphrey, this court indicated,
“[t]hese jurisdictional requirements [of 28 U.S.C. § 1495 and 28 U.S.C. § 2513] are strictly
construed, and a heavy burden is placed upon a claimant seeking relief under such
provisions.” Humphrey v. United States, 52 Fed. Cl. at 596; see also Bobka v. United
States, 133 Fed. Cl. 405, 409 (2017) (dismissing plaintiff’s unjust conviction and
imprisonment claim because he failed to allege or establish obtaining a certificate of
innocence or receiving a pardon); Wood v. United States, 91 Fed. Cl. 569, 577 (2009)
(holding that compliance with 28 U.S.C. § 2513, including submission of a certificate of
innocence from the federal district court, is a prerequisite to the jurisdiction of the Court
of Federal Claims). Additionally, as noted in Sykes v. United States, 105 Fed. Cl. 231
(2012), “a certificate or pardon must ‘either explicitly or by factual recitation’ state that the
plaintiff has satisfied the requirements of Section 2513.” Id. at 233 (quoting Humphrey v.
United States, 52 Fed. Cl. at 597).
As noted above, the unjust conviction statute provides recourse to United States
citizens who have been wrongfully convicted of crimes against the United States, and
imprisoned as a result. See 28 U.S.C. § 2513. As the court in Humphrey v. United States,
explained, however:

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The purpose of the unjust conviction statutes is to partially right an
irreparable wrong done to a United States citizen who was wrongfully
imprisoned. However, the legislative history indicates that Congress did not
intend to indemnify every imprisoned person whose conviction has been set
aside. Consequently, Congress attempted to accomplish this goal by
requiring a plaintiff to obtain a certificate from the appropriate court or a
pardon, specifically reciting the requirements of 28 U.S.C. § 2513.
52 Fed. Cl. at 597 (citations omitted). As indicated, at a minimum, plaintiff must
demonstrate that his sentence under 18 U.S.C. § 924(e) (2012) was vacated on the
grounds that he should not have been sentenced pursuant to the provisions of 18 U.S.C.
§ 924(e) and he must provide a certificate of innocence from the United States District
Court for the District of South Carolina, or an official pardon, pursuant to 28 U.S.C. §
2513.
While the document need not be titled a “certificate of innocence,” it must
substantively provide: (1) that plaintiff’s conviction has been reversed or
vacated on the grounds that he was not guilty of the offense for which he
was convicted; (2) that plaintiff did not commit any of the acts charged or
that his actions or omissions in connection with such charge constituted no
offense against the United States or any state, territory, or the District of
Columbia; and (3) that plaintiff did not bring about his own prosecution by
neglect or misconduct.
Wood v. United States, 91 Fed. Cl. at 578 (citations omitted).
In his complaint, plaintiff does not contest the legitimacy of his 18 U.S.C. § 922(g)
(2012) conviction. Plaintiff however, contests the sentence enhancement pursuant to 18
U.S.C. § 924(e). In support of his claims, plaintiff appears to rely primarily on a joint
consent motion attached to his complaint, signed by himself and the Assistant United
States Attorney, titled, “CONSENT MOTION FOR (1) JUDGMENT IN FAVOR OF
PETITIONER AS TO THE PENIDNG 28 U.S.C. § 2255 PETITION; AND (2) AN
EXPEDITED RE-SENTENCING HEARING.” (capitalization in original). The attachments
submitted by plaintiff with his complaint, however, do not provide any indication that his
primary conviction was vacated on the grounds of innocence. Throughout his complaint,
plaintiff alleges his innocence, and references the court orders that vacated his 18 U.S.C.
§ 924(e) sentence and ordered his release. As noted above, however, plaintiff did not
include the documentation required. In fact, plaintiff’s complaint does not indicate whether
he has obtained a certificate of innocence from the United States District Court for the
District of South Carolina, nor does he suggest that he has petitioned the District Court
for a certificate.
“[T]his Court’s jurisdiction in cases of unjust conviction and imprisonment is set
forth by statute, but it is severely restricted.” Humphrey v. United States, 52 Fed. Cl. at
598 (citing 28 U.S.C. §§ 1495, 2513). In the case currently before the court plaintiff has
not provided a certificate of innocence from the trial court that set aside his conviction,
and has not sufficiently demonstrated that he did not commit the acts with which he was
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charged, or brought about his own prosecution through misconduct or neglect. “When a
suit is brought and no showing is made that the plaintiff has obtained the requisite
certificate of innocence by the court, or pardon, this Court will not entertain the claim.”
Humphrey v. United States, 52 Fed. Cl. at 598 (citations omitted).
CONCLUSION
Because plaintiff has not satisfied the requirements of 28 U.S.C. § 1495 and 28
U.S.C. § 2513, at this time, plaintiff’s complaint is DISMISSED, WITHOUT PREJUDICE.
Plaintiff’s Motion to Proceed In Forma Pauperis is moot. The Clerk of Court shall enter
JUDGMENT consistent with this Order.

IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge

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