CUNNINGHAM v. USA

Filing 7

UNREPORTED OPINION. granting 4 Motion for Leave to Proceed in forma pauperis; granting 6 Motion to Dismiss - Rule 12(b)(1) and (6) The Clerk is directed to enter judgment. (Certified Mail# 7017 1450 0000 1346 1482) Signed by Judge Elaine D. Kaplan. (ac7) Service on parties made.

(Pro Se)

Joseph Cunningham,Brorrx, NY, pro se.

Russell T. Upton, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were Allison Kidd-Miller, Assistant
Director, Robert E. Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney General,
for Defendant.

OPINION AND ORDER
KAPLAN, Judge.
On February t2,2019, pro se Plaintiff Joseph A. Cunningham filed a complaint in this
court. Docket No. 1. On the same date he also filed an application to proceed in forma pauperis.
Docket No. 4. On March 5,2019, the government filed a motion to dismiss pursuant to Rules
12(bxl) and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC").
Docket No. 6. The government argues that Mr. Cunningham has failed to meet his burden to
establish subject-matter jurisdiction and that, even if the Court were to determine it had
jurisdiction, Mr. Cumingham has failed to state a claim upon which relief can be granted. Def.'s
Mot. to Dismiss ("Def.'s Mot.") at 5-7.
For the reasons discussed below, Mr. Cunningham's application to proceed in forma
pauperis is GRANTED. However, because the Court finds that it lacks subject-matter
jurisdiction over his complaint, the government's motion to dismiss is GRANTED and the case
will be dismissed in its entirety.

I.

Mr. Cunningham's Application To Proceed In Forma Pauperis

Pursuant to 28 U.S.C. $ 1915(a)(1), "any court of the United States may authorizethe
commencement . . . of any suit, action or proceeditrg . . . without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement . . . that the person is

unable to pay such fees or give security therefor."l A plaintiff does not have to "be absolutely
destitute to enjoy the benefit of the statute." Adkins v. E.I. DuPont De Nemours & Co., 335 U.S.
33I , 339 ( I 948). An affidavit that demonstrates that a plaintiff is unable to pay the fee or give
security and still provide for himself and any dependents is sufficient. See id.; see also Waltner
v. United States, 93 Fed. Cl. 139, 143 (2010) (stating that the question is whether "paying such
fees would constitute a serious hardship on the plaintiff') (internal quotation and citations
omitted).

Mr. Cunningham states in his application that he currently has "0" dollars in cash or in a
checking or savings account. Pl.'s Appl. To Proceed In Forma Pauperis at2.Mr. Cunningham
has also listed $2400 in monthly expenses. Id. He is currently unemployed and receives "unemployment insurance" but does not provide "the amount received in the last twelve (12)
months." ld. at 1-2. Nevertheless, at his past job, he received $2000 a month. Id. at2. Under
these circumstances, Mr. Cunningham has sufficiently demonstrated that he is unable to pay the
court's filing fee. His application to proceed in forma pauperis is therefore GRANTED.

IL

The Government's Motion To Dismiss

In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
of the plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, "inquire into jurisdictional facts" to determine whether it has
jurisdiction. Rocovich v. United States , 933 F .2d 991 , 993 (Fed. Cir. 1 991 ). It is well established
that complaints filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 5I9,520 (1972). Nonetheless, even
pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Harris
v. United States, 113 Fed. CL.290,292 (2013).

Mr. Cunningham has not yet filed a response to the government's motion to dismiss,
however the Court has an independent obligation to satisff itself of its jurisdiction and may raise
subject-matter jurisdiction sua sponte at any time. See Arbaueh v. Y&H Com., 546 U.S. 500,
506-07, 514 (2006); Rick's Mushroom Serv.. Inc. v. United States , 521F.3d 1338, 1346 (Fed.
Cir. 2008); see also RCFC 12(h)(3) ("If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action."). Having considered the complaint and the
government's motion, the Court finds that it lacks subject-matter jurisdiction and is obligated to
dismiss the case on that ground.
The Tucker Act grants the United States Court of Federal Claims the power o'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. $ la91(a)(1). It serves as a waiver of sovereign immunity and a jurisdictional
grant, but it does not create a substantive cause of action. Jan's Helicopter Serv.. Inc. v. Fed.

Aviation Admin. , 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish
that "a separate source of substantive law . . . creates the right to money damages." Id. (quoting
Fisher v. United States,402F.3d 1167, ll72 (Fed. Cir. 2005) (en banc in relevant part)); Rick's
Mushroom Serv.. Inc., 521 F.3d at 1343 ("[P]laintiff must look beyond the Tucker Act to
identif a substantive source of law that creates the right to recovery of money damages against
the United States.") (citation omitted).
In his complaint, Mr. Cunningharn appears to be challenging a foreclosure action. Compl.
at 1. It appears that Mr. Cunningham is attempting to sue JP Morgan Chase, the Orlans PC Law
Group, the United States District Courts for the Southern District of New York and the District
of Delawareo and the United States Courts of Appeal for the Second and Third Circuits. Id. He
alleges that these entities "would not provide the Accountant that is specifically stated within the
statutes" and "violated the FAS 140 Set off or the recoupment under Title 12 LJSC," the Freedom
of Information Act, "[the] 14ft Amendment the right to due process," and "the Fair Debt
Collection Prac[t]ices Act 15 USC section 1601, 1692,1693." Id. at l2.Mr. Cunningham asks
the Court to "assist the Plaintiff in a Forensic Accountant, set off the Accountant as provided in
Title 12 and award the Plaintiff $2 million dollars in Recoupment." Id. at 4.

It is clear from the face of Mr. Cunningham's complaint that the Court lacks subjectmatter jurisdiction. For one, Mr. Cunningham's complaint challenges the actions of financial
institutions and non-governmental entities. The United States is the only proper defendant in the
Court of Federal Claims. See United States v. Sherwood, 312 U.S. 584, 588 09aD; see also Del
Rio v. United States, 87 Fed. Cl. 536, 539 (2009). Moreover, to the extent that Mr. Cunningham
seeks judicial review of decisions by various federal courts, this Court does not have jurisdiction
to review them. See Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Therefore, these
claims must be DISMISSED.
Further, Mr. Cunningham has fallen far short of identifuing any "money-mandating"
source of substantive law giving him a "right to money damages," as required for Tucker Act
jurisdiction. See Jan's Helicopter Serv. ,525 F.3d at 1306; see also Rick's Mushroom Serv., Inc.,
521F.3d at 1343:' LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (providing that
the Due Process clause of the Fourteenth Amendment is not money-mandating).
For these reasons, the Court lacks subject-matter jurisdiction over Mr. Cunningham's
complaint. Accordingly, the government's motion to dismiss for lack of subject-matter
jurisdiction is GRANTED and Mr. Cunningham's complaint is DISMISSED without
prejudice. The Clerk shall enter judgment accordingly. Each side shall bear its own costs.

Judge