ROJAS-VEGA v. USA

Filing 12

Order of Dismissal: granting 2 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to enter judgment. Signed by Senior Judge Nancy B. Firestone. (ac7) Service on parties made.

llrtlst @nite! $rtutts @ourt of /elrrul

@lsims

No. 18-1520C
(Filed: November 30, 201 8)

ROJAS.VEGA,
Pro Se Plaintiff,

v.)
THE TINITED

STATES,
Defendant.

)
)
)

)
)

Pro Se Plaintiff; 28 U.S.C. 91500;
Lack of Subject-Matter Jurisdiction.

)

)
)
)

ORDER OF DISMISSAL
On September 17,2018, the plaintiff, Danny Rojas-Vega,

("plaintiff' or "Mr.

Rojas-Vega") filed a complaint in this court alleging that the Immigration and
Naturalization Service C'INS), the precursor of Immigration and Custom Enforcement

("ICE'), improperly initiated deportation proceedings against him on August 30, 2001 in
violation of a 1995 plea agreement he entered into in the San Diego Califomia Municipal
Court. Plaintiff claims that the initiation of deportation proceedings violated the terms

of

his 1995 plea agreement as well as his right to due process under the Fourteenth
Amendment of the United States Constitution. He also claims that INS' actions violated
the Federal Tort Claims Act ("FTCA") 28 U.S.C. g 1346(b). In this complaint, the

plaintiff is seeking $10,000.00 in damages.

?01,? l,r+50 0000

ltqb l,acl

The United States, ("the govemment") has filed a motion to dismiss Mr. Rojas-

Vega's due process and FTCA claims for lack ofsubject matter jurisdiction under Rule

l2(b)(1) of the Rules of the Court of Federal Claims. The court agrees that this court does
not have jurisdiction over those claims for the reasons stated by the govemment in its

motion.r The government also seeks to dismiss Mr. Rojas-Vega's breach of the plea
agreement claim for failure to state a claim under Rule 12(bX6) of the Rules of the

United States Court of Federal Claims. As set forth below. the court finds that resardless
of whether Mr. Rojas-Vega has stated

a breach

of contract claim based on the terms

of

his 1995 plea agreement, the breach claim must be dismissed for lack ofjurisdiction
under 28 U.S.C. $ 1500. Specifically, in reviewing Mr. Rojas-Vega's court filings the
court has leamed that Mr. Rojas-Vega filed a virtually identical complaint to the one he

filed in this court in United States District Court for the Southem District of Califomia on
September 11, 2018 several days before his case was filed in this court. Rojas-Vegas v.

United States, No. 18cv2114-LAB (S.D. Cal.). The district court dismissed Mr. Rojas-

I With regards to this court's ability to entertain constitutional claims, this court may only
entertain constitutional claims when the constitutional provisions at issue "mandateIs] payment
of money by the govemment," LeBlqnc v. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995).
The Federal Circuit has found that the Fourteenth Amendment is not money-mandating, Id.;
Taylorv.UnitedStates,l14Fed.Cl. 185, 195,aff'd,590F.App'x983(FedCir.2014). Thus,
this court does not have jurisdiction over Mr. Rojas-Vega's Fourteenth Amendment claim.

With regards to this court's ability to hear his tort claims, "[t]he Tucker Act explicitly
excludes tort claims against the United States from this Court's jurisdiction." Rothing v.
United States,132 Fed. Cl. 387, 390 (2017). The "United States district courts have
exclusive jurisdiction to hear tort claims against the United States, including all claims
under the FTCA." Id. (citing28 U.S.C. $ 1346(bX1). Thus, this court does not have
jurisdiction over Mr. Rojas-Vega's FTCA claims.

Vega's claim for lack ofjurisdiction on November 1, 2018, and Mr. Rojas-Vegas
appealed the dismissal on November 6,2018, which is still pending. See Rojas-Vegas v.

United States, No. 18cv2114 LAB,2018 WL 5761513 (S.D.Cal. Nov. 1,2018). Because

Mr. Roja-Vega has a claim based on the same facts pending before the Ninth Circuit, his
case before this court must be dismissed under 28 U.S.C. $ 1500.

28 U.S.C. $ 1500 provides:

The United States Court of Federal Claims shall not have jurisdiction of
any claim for or in respect to which the plaintiffor his assignee has pending
in any other court any suit or process against the United States or any
person who, at the time when the cause of action alleged in such suit or
process arose, was in respect thereto, action or professing to act, directly or
indirectly under the authority of the United States.

According to the Supreme Coun, "[t]wo suits are for or in respect to the same claim,
precluding jurisdiction in [this court], ifthey are based on substantially the same
operative facts, regardless ofthe relief sought in each suit." United States v. Tohono
O'Odham Nation,563 U.S. 307,317 (2011). A claim is "pending" in another court from
the time that it is filed until a final judgment is entered and remains pending while any

appealispending. Brandtv.UnitedStates,7l0F.3d1369,1379-80 (FedCir.20l3).
Here, a review of the complaint in Mr. Rojas-Vega's earlier filed suit in the

Califomia district court and the one filed in this court demonstates that both are based on
the same operative facts. Compare Complaint, Rojas-Vegas v. United States,No.

18cv2114-LAB (S.D.C.) with Complaint (DocketNo. 1.). In both complaints Mr. RojasVega maintains he entered into a plea agreement in 1995 with the understanding that INS

would not seek his deportation based on his conviction and that INS violated that plea

agreement in 2001 when it initiated deportation proceedings based on the 1995

conviction. Because both actions are based on the same operative facts and his earlier

filed case is still pending before the Ninth Circuit, this court must dismiss Mr. RojasVega's breach of contract claim for lack of subject-matter jurisdiction under 28 U.S.C.

$

1500.

CONCLUSION
For the reasons set forth above, all of plaintiff s claims are DISMISSED for lack

of

subject matter jurisdiction. Plaintiffs motion for leave to proceed in forma pauperis,
(Docket No. 2) is hereby GRANTED for the sole purpose of this ruling.2 The Clerk is
directed to enter judgment accordingly.

IT IS SO ORDERED.

B. FIRESTONE

2

PlaintifPs motion to supplement his motion for leave to proc eed, informa pauperiq (Docket
No. 5) and motion to amend his complaint, (Docket No. l0) are DEMED as MOOT.

4