Brickey v. United States

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No. 13-346C MAY 2 2Ci4

Filed: May 2,2014

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HERMAN LEON BRICKEY, Pro Se Plaintiff; Motion to

Plaintiff, Dismiss; Lack of Subject Matter

Jurisdiction; 28 U.S.C. g 1495;

v. 28 U.S.C. S 2513; Torts; !4

Forma Pauperis; 28 U.S.C. S

UNITED STATES,

1915.

Defendant.

*:l*********:*'tj.**

Herman Leon Brickey, San Antonio, TX, pro se.

Tanya B. Koenig, Trial Attorney, Commercial Litigation Breach, Civil Division,

United States Department of Justice, Washington, D.C., for the defendant. With her

were Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Stuart F.

Delery, Assistant Attorney General, Civil Division, Department of Justice.

ORDER

HORN. J.

Pro se plaintiff Herman Leon Brickey filed what he identified as an

'ADMIN|STRAT|VE TORT CLATM NO. TRT-SCR-2o12-03822'n in the United states

court of Federal claims, although he titled and referred to his complaint as filed "lN

THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DlVlS|ON.' Plaintiff's two page, handwritten complaint is styled as a

letter to a judge, albeit with the caption typical of a complaint. Based on the

attachments included with plaintiff's complaint, it appears that on October 16, 2012.

plaintiff filed a complaint in the United States District Court for the Western District of

Texas, San Antonio Division, alleging that he was wrongfully imprisoned ,,FOR

RELIGIOUS FREEDOM" in federal prisons in Oklahoma and Texas. Plaintiff states that

he "WANT[S] $50,000.00 FOR PUNIT|VE DAMAGES AND MENTAL ANGUTSH I HAVE

1

capitalization, grammar and spelling are as they appear in the documents submitted

by Mr. Brickey. Mr. Brickey's handwritten complaint concludes with the post script: ,,1

AM SORRY I DON'T KNOW HOW TO TYPE OR USE A COMPUTER OR KNOW HOW

TO USE ONE, PLEASE FORGIVE ME FOR THIS, AND I HOPE COURT WILL ALLOW

MY CASE TO BE HEARD, THANK YOU, YOUR HONOR. SIR !'

SUFFERED THRU 45 YRS OF MENTAL ANGUISH. TURNED DOWN MANY TIMES

FOR JOBS AS BEING A FELON !" Plaintiff adds:

, MY TOTAL OWED ME IS $74,640.00. I AWAIT MY JUST PAYMENT

FROM UNITED STATES GOVERNMENT FOR WRONGFUL

IMPRISONMENT. I AM OWED RIGHTFUL PAYMENT, AND HOPE

JUSTICE WILL BE GMNTED ME, SOMETHING ?

Plaintiff's October 16, 2012 complaint filed in the United States District Court for the

Western District of Texas was dismissed "without prejudice for lack of jurisdiction." See

Hermal Leon Brickevv. United States, Case No.5:12-CV-00991 (W.D. Tex. Mar. 19,

2013).'

Plaintiff attached multiple documents to his complaint filed in this court. One

such document is a May 17,2013 letter addressed to "Your Honor," apparently intended

for a judge of this court. In the May 17,2013 lefter plaintiff states that he "tried to get

Justice and compensation for wrongful lmprisonment. Two Judges here in san Antonio

Federal Court said they Lacked Jurisdiction, Judge Primomo stated in his Legal

document, a Federal Claim Judge has jurisdiction." Plaintiff adds:

I should at least be paid minimum wages for my hours I have figured out

and is Just for wrongful imprisonment.

Plaintiff continues:

I sent a letter to the Federal Court here to a Federal Claim Judge to

Forward to him, I called several days, later to Clerks [sic] Office and they

said they put my letter in the Files and closed my case and did not

Fonrvard my letter to a Federal Claim Judge, this is Not Justice. I am 6g

yrs old 3-1-45 on Disability, I Hope you will pay me some compensation.

As another attachment to the complaint, plaintiff submitted a photocopy of a

March 12,2008 "certificate of Pardon lssued to Herman Leon Brickey," pursuant to a

Proclamation of Pardon, dated January 21 , 1977, issued by president Jimmy carter.

The photocopy of the Certificate of Pardon submitted with plaintiffs complaint is cut off

' Judge Xavier Rodriguez, when dismissing plaintiff's case filed in the united states

District court for the western District of rexas, adopted a memorandum and

recommendation signed by a United States Magistrate Judge, John W. primomo, wno

concluded that, "only the court of Federal claims has jurisdiction" over Mr. Brickey,s

complaint "to recover damages sustained during his imprisonment in the 1960s

pursuant to a conviction for which he received a pardon in 1g77 from then-president

Jimmy Carter."

on the right hand margin, making certain words difficult to read. The photocopy of the

Certificate of Pardon appears to grant Mr. Brickey a pardon from his conviction for

violation of the Military Selective Service Act "irrespective of the dat [sic] of any offense

against the United States of America . . . ."

Plaintiffs complaint in this court was filed without the requisite filing fee, or a

motion to proceed in forma pauoeris. lnstead, Mr. Brickey attached the Application to

Proceed in Forma Pauoeris he had previously filed in the United States District Gourt for

the Western District of Texas case. In plaintiffs October 16, 2012 Application to

Proceed in Forma Pauoeris submitted to the United states District court for the

western District of rexas, plaintiff indicated that he had been unemployed since August

1999. He indicated his only sources of income were a social security supplement, social

security disability and food stamps. He also claimed he did not have any cash on hand

or money in a savings or checking account. He noted that he had a 1999 Mercury

Marquis with 230,000 miles with an estimated value of $500.00. He stated on his

Application that he "CAN BARELY AFFORD GAS FOR My CAR, AS I NEED tT TO GO

TO STORE AND DOCTORS OFFICE.'

In response to plaintiff's complaint, defendant filed a motion to dismiss plaintiffs

complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1 ) of the Rules of

the United states court of Federal claims (RCFC) (2013), or, in the alternative, RCFC

12(bxo), for failure to state a claim upon which relief can be granted. Defendant argues

that plaintiffs complaint, which defendant construes as "one for compensation based

upon unjust conviction and imprisonment pursuant to 28 U.S.C. g 1495 and 2g U.S.C.

S 2513,'does not comply with the statutory requirements specified in 2g U.S.C.

S 2513,' and, therefore, should be dismissed. To date, plaintiff has not responded to the

3

Specifically, 28 U.S.C. g 2513 states:

(a) Any person suing under section 1495 of this tiile 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 recoro 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

government's motion to dismiss, although plaintiff has been allotted more time than

provided for under the court's Rules.

DrscussroN

When determining whether a complaint filed by a pro € plaintiff is sufficient to

invoke review by a court, pro se plaintiffs are entitled to liberal construction of their

pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations

contained in a pro se complaint be held to "less stringent standards than formal

pleadings drafted by lawyers"), reh'q denied,405 U.S. 948 (1972); see also Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estetle v.

Gamble,429 U.S.97, 106 (1976), reh'q denied,429 U.S. 1066 (1977). "However,

"'[t]here is no duty on the part of the trial court to create a claim which [the plaintiffl has

not spelled out in his [or her] pleading.""' Lenqen v. United States, 100 Fed. C|.317,

328 (2011) (alterations in original) (quoting Scoqin v. United States, 33 Fed. Cl. 285,

State, Territory or the District of Columbia, and he did not

by misconduct or neglect cause or bring about his own

orosecution

(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 unjusily

sentenced to death and 950,000 for each 12-month period of

incarceration for any other plaintiff.

28 u.s.c. s 2513 (2006) (emphasis in originat). section 1495 of tifle 28, referenced in

28 u.s.c. s 2513, provides: "The United states court of Federal claims shall have

jurisdiction to render judgment upon any claim for damages by any person unjusfly

convicted of an offense against the United States and imprisoned.,' 28 U.S.C. S 1496

(2006).

293 (1995) (quoting Clark v. Nat'l Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir.

1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aft'd,443 F. App'x 542

(Fed. Cir.2011); Minehan v. United States,75 Fed. C|.249,253(2007). "While ap

se plaintiff is held to a less stringent standard than that of a plaintiff represented by an

attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's

jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl.

163, 165 (2010) (citing Huohes v. Rowe, 449 U.S. at g and Tavlor v. United States, 303

F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a

preponderance of the evidence."), reh'o and reh'q en banc denied (Fed. Cir. 2002)); see

also Hanis v. United States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiffs

pleadings are held to a less stringent standard, such leniency 'with respect to mere

formalities does not relieve the burden to meet jurisdictional requirements."' (quoting

Minehan v. United States, 75 Fed. Cl. at 253)).

It is well established that "'subject-matter jurisdiction, because it involves a

court's power to hear a case, can never be forfeited or waived."' Arbauoh v. Y & H

Coro., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630

(2002)). "[F]ederal courts have an independent obligation to ensure that they do not

exceed the scope of their jurisdiction, and therefore they must raise and decide

jurisdictional questions that the parties either overlook or elect not to press." Henderson

ex rel. Henderson v. Shinseki, 131 S. Ct. 1197,1202 (2011); see also Hertz Corp. v.

Friend,559 U.S.77,94 (2010) ("Courts have an independent obligation to determine

whether subject-matter jurisdiction exists, even when no party challenges it." (citing

Arbauqh v. Y & H Corp., 546 U.S. at 514)); Soecial Devices, Inc. v. OEA. Inc., 269 F.3d

1340, 1342 (Fed. cir. 2001) ('[A] court has a duty to inquire into its jurisdiction to hear

and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W.. lnc., 918 F.2d

160, 161 (Fed. Cir. 1990))); View Enq'q. Inc. v. RoboticVision Svs.. lnc., 115 F.3d 962,

963 (Fed. cir. 1997) ("[c]ourts must always look to their jurisdiction, whether the parties

raise the issue or not."). "The objection that a federal court lacks subject-matter

jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage

in the litigation, even aflertrial and the entry of judgment." Arbauoh v. y & H Corp., 346

U.S. at 506; see also Rick's Mushroom Serv.. Inc. v. United States,521 F.3d 1339,

1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte,

subject matter jurisdiction at any time." (citing Arbauqh v. y & H Corp., 546 U.S. at 506;

Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'o and reh'q en banc

denied (Fed. Cit. 2004), cert. denied, 545 U.S. 1127 (2OOS)', and fannincL pfrittiFs a

Molnarv. West, 160 F.3d 717,720 (Fed. Cir. 1998))); Pikutin v. United States,97 Fed.

Cl.71,76, appeal dismissed,425 F. App'x 902 (Fed. Cir. 2011). In fact, ,,[s]ubject

matter jurisdiction is an inquiry that this court must raise sua sponte, even where . . .

neither party has raised this issue." Metabolite Labs.. Inc. v. Lab. Corp. of Am.

Holdinqs, 370 F.3d 1354, 1369 1feO. Cir.

F3d 1481, 1485 (Fed. cir.), reh'q denied and en banc suqoestion declined (Fed. cir.

1998)), reh'o and reh'o en bancdenied (Fed. Cir.2004), cert. oranted in part, 546 U.S.

975 (2005), cert. dismissed as improvidentlv qranted, 548 U.S. 124 (2006). "The

objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a

party, or by a court on its own initiative, at any stage in the litigation, even after trial and

the entry of judgment." Arbauqh v. Y & H Corp., 546 U.S. at 506; see also Centr. Pines

Land Co., L.L.C. v. United States,697 F.3d 1360, 1364 n.1 (Fed. Cir.2012) ("An

objection to a court's subject matter jurisdiction can be raised by any party or the court

at any stage of litigation, including after trial and the entry of judgment."); &K!

Mushroom Serv., lnc. v. United States,521 F.3d at 1346 ("[A]ny party may challenge, or

the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbauqh

v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed.

Cir.), reh'q and reh'q en banc denied (Fed. Cn. 2004), cert. denied, 545 U.S. 1127

(2005); and Fanninq, Phillips & Molnar v. West, 160 F.3d 717,720 (Fed. Cir. 1998)));

Pikulin v. United States, 97 Fed. Cl. 71 , 76, appeal dismissed , 425 F . App'x 902 (Fed.

cn.2011).

Pursuant to the RCFC and the Federal Rules of Civil Procedure, 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(aX1), (2) (2013); Fed. R. Civ. P.8(a)(1), (2) (2014);see also

Ashcroft v. lqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v. Twomblv, 550

U.S. 544, 555-57, 570 (2007\\. "Determination of jurisdiction starts with the complaint,

whrch must be well-pleaded in that it must state the necessary elements of the plaintiffs

claim, independent of any defense that may be interposed." Hollev 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'q denied (Fed. Cir. 1997); see also Klamath TribeClaims

Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McOaulley Inv. Grp..

lnc. v. United States, 93 Fed. Cl. 710, 713 (2010). "Conclusory allegations of law and

unwarranted inferences of fact do not suffice to support a claim." Bradlev 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. Cn.2007) (Dyk, J., concurring in part, dissenting in part)

(quoting C. Wright and A. Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)).

"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 Consultinq v. United States,

104 Fed. Cl.51O, 523(2012) (quoting Bell Atl. Corp. v. Twomblv,550 U.S. at555)' affd'

No. 2012-5104, 2014 WL 1394969 (Fed. Cir. Apr. 11, 2014). As stated in Ashcroft v.

lqbal, "[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'

lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twomblv, 550 U.S at 555).

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. 89, 94 (2007) ("ln addition, when 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. Twomblv, 550 U.S. at 555-56 (citing

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416

U.S. 232, 236 (1974) ("Moreover, it is well established that, in passing on a motion to

dismiss, whether on the ground of lack of jurisdiction over the subject matter or for

failure to state a cause of action, the allegations of the complaint should be construed

favorably to the pleader."), abroqated on other qrounds by Harlow v. Fitzqerald, 457

U.S.800 (1982), recoqnized by Davis v. Scherer,468 U.S. 183, 190 (1984); United Pac.

lns. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish lndian

Nation v. United States,419 F.3d'1355, 1364 (Fed. Cir.2005), Boise Cascade Corp. v.

United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh'q and reh's en banc denied (Fed.

Cr.2002), cert. denied,538 U.S.906 (2003).

The Tucker Act 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. S 1a91(aXl) (Supp. V 2011). 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. Navaio Nation, 556

U.S.287,289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also

Greenlee Cntv.. Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'o en

banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 11a2 (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 Aoache Tribe, 537 U.S. 465, 472 (2003); Smith v. United

States,709 F.3d 11'14, 1116 (Fed. Cir.), cert. denied, 134 S. Ct.259 (2013);

RadioShack Corp. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's

Mushroom Serv., lnc. v. United States, 521 F.3d at 1343 ("[P]laintiff must. . ' identify a

substantive source of law that creates the right to recovery of money damages against

the United States."). 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. lCorp. v. United States, 178 Ct. Cl. 599,605-06,]

372 F.2d [1002,] 1007-08 (1967)l (describing illegal exaction claims as

claims "in which 'the Government has the citizen's money in its pocket"'

(quoting Clapp v. United States,127 Cl. C|.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 7. 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." ld.; see also Testan [v.

United Statesl, 424 U.S. 1352,1401-02 [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 regulation-does 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 Feqelal

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.

ontario PowerGeneration, Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);

gecalsgTwp. of Saddle Brookv. 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

Navaio Nation, 556 U.S, at 290 (quoting United States v. Testan, 424 U.S. at 4-00); see

, 537 U S' at 472; U.ni!ed-9!stes-lL

MXqI-, 463 U^Sra 217; Blueoort Co.. LLC v. United States, 533 F.3d 1374' 1383

6eA Cir.2008), cert. denied,555 u.S. 1153 (2009). The source of lawv.granting Navaio

monetary relief must be distinct from the Tucker Act itself. See United States

Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply

a1 provision[] that operate[s] to waive sovereign immunity for claims

-luti.Oiction"l

premised on other sources of law (e.9., statutes or contracts)."). "'lf 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., lnc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cntv.. 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."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

Although the complaint does not include a caption with the court's name and,

therefore, Mr. Brickey's complaint is not in compliance with the form prescribed in RCFC

10(a),4 this court recognizes that pro se plaintiffs should be afforded liberal construction

of their pleadings. See Haines v. Kerner,404 U.S. at520-21. Given this more liberal

approach, and given the instruction by the United States District Court for the Western

District of Texas directing plaintiff to this court, as well as plaintiffls May 17 , 2013 letter

attached to his complaint in this court referencing a "Federal Claims Judge," the 4 g

plaintiff has sufficiently identified this court as the place plaintiff intended to ask for

review of his comolaint.

Mr. Brickey's alleged wrongful imprisonment claim, however, does not fall within

the jurisdiction of this court. According to 28 U.S.C. S 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. S 1495. Section 1495 of title 28, therefore, "must be read in

conjunction with 28 U.S.C. S 2513." Humphrev v. United States,52 Fed. Cl. 593, 596

(2002),affd,60F.App'x292(Fed.Cir.2003)(citationsomitted). Asquotedabove,23

U.S.C. S 2513 requires that a plaintiff suing under 28 U.S.C. S 1495, "must allege and

prove" that "[h]is conviction has been reversed or set aside on the ground that he is not

guilty of the offense of which he was convicted . . . or that he has been pardoned upon

the stated ground of innocence and unjust conviction," and, that "[h]e did not commit

any of the acts charged." 28 U.S.C. S 2513(a). In Humphrev, this court indicated,

"[t]hese jurisdictional requirements [of 28 U.S.C. S 1495 and 28 U.S.C. S 2513) are

strictly construed, and a heavy burden is placed upon a claimant seeking relief under

such provisions." Humphrev v. United States, 52 Fed. Cl. at 596. Additionally, as noted

in Svkes v. United States, 105 Fed. C'.231 (2012), "a certificate or pardon must'either

explicitly or by factual recitation' state that the plaintiff has satisfied the requirements of

Section 2513." ld, at 233 (quoting Humphrev v. United States,52 Fed. Cl. at 597).

Plaintiff, however, has not alleged that his conviction was set aside or reversed because

he had not committed, or was not guilty of, the acts underlying his original conviction.

Furthermore, Mr. Brickey has not alleged, nor has he demonstrated, based on the

documents currently before this court, that he has been pardoned on the "ground of

4 RCFC 10(a) states, in part: "[e]very pleading must have a caption with the court's

name, a title, a file number, and a RCFC 7(a) designation." RCFC 10(a) (2013).

innocence and unjust conviction." Plaintiff's photocopy of the Certificate of Pardon,

attached to the complaint, although partially cut off on the right margin, making a few

words only partially legible, indicates that Mr. Brickey, "who was convicted, inespective

of the dat [sic]. . . of any offense against the United States of America committed

between August 4, 1964 and . . . in violation of the Military Selective Service Act or any

rule or regulation promulgated t [sic] . . . pardoned by the Proclamation of Pardon of

January 21 , 1977." Nowhere does the photocopy of the Certificate of Pardon state that

Mr. Brickey was pardoned because he was found innocent of the acts for which he was

charged or unjustly convicted. The photocopy of the affidavit by the Pardon Attorney

Ronald L. Rodgers, included with the photocopy of the Certificate of Pardon, to certify

that the copy included is a "true and accurate copy" of the Certificate of Pardon, only

states that the copy is a "record of executive clemency." Although plaintiff alleges in his

complaint'WRONGFUL lN PRISONMENT FOR RELIGIOUS FREEDOM,' he does not

allege he did not commit any of the unnamed acts charged for which he was convicted.

In fact, plaintiff never identifies why he was imprisoned. Therefore, plaintiff's attached

photocopy of the Certificate of Pardon does not comply with the requirements set forth

in 28 U.S.C. S 2513, and cannot be a basis for jurisdiction in this court to review his

claims arising from his alleged wrongful imprisonment.5

5In determining that this court lacks jurisdiction over plaintiffs complaint because

plaintiff did not comply with 28 U.S.C. S 2513, the court notes two recent unreported

Federal Circuit decisions which address lack of jurisdiction pursuant to 28 U.S.C. $

2513. See Winston v. United States, 465 F. App'x 960, 961-62 (Fed. Cir. 2012) ("The

Claims Court does have limited jurisdiction over unjust imprisonment claims under 28

U.S.C. S 1495. However, in order for the court to hear such claims, a plaintiff must

'allege and prove'that his conviction was: '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 .' 28 U.S.C. $ 2513(a). Mr.

Winston, however, is still incarcerated and his conviction has not been reversed or set

aside. Therefore, the Claims Court lacked jurisdiction to hear his claim for unjust

imprisonment.") (modification in original) and Johnson v. United States, 411 F. App'x

303, 306 (Fed. Cir. 2010) (affirming the Court of Federal Claims decision to dismiss

plaintiff Johnson's complaint for lack of jurisdiction and for failure to state a claim upon

which relief can be granted), reh'q denied (Fed. Cn. 2011). In Johnson, the Federal

Circuit indicated that "[t]he court correctly determined that Johnson did not and could

not allege that his conviction was reversed or set aside on the grounds of innocence or

pardon, as $ 2513 requires. Even when construed in Johnson's favor, the facts alleged

do not suggest that Johnson's conviction was reversed or set aside on the ground that

he is not guilty, that Johnson was found not guilty in a new trial, or that Johnson was

pardoned upon the stated ground of innocence and unjust conviction. See 28 U.S.C. S

2513 (2006). Accordingly, the Court of Federal Claims correctly held that amendment

10

Moreover, to the extent that plaintiff requests compensation for a tortious act as

the basis for his complaint, as he alleged his case is an "ADMINISTRATIVE TORT

CLAIM NO. TRT-SCR-2O12-03822," the Tucker Act expressly excludes tort claims,

including those committed by federal officials, from the jurisdiction of the United States

Court of Federal Claims." See 28 U.S.C. S 1a91(a)(1); see also Keene Corp. v. United

States, 508 U.S. 200, 214 (1993); Rick's Mushroom Serv.. Inc. v. United States, 521

F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998); Brown v.

United States,'105 F.3d 621,623 (Fed. Cir.), reh'qdenied (Fed. Cir. 1997); Golden Pac.

Bancorp v. United States, 15 F.3d 1066, 1070 n.8 (Fed. Cir.), reh'o denied, en banc

suqqestion declined (Fed. Cir.), cert. denied,513 U.S.961 (199a); Sellers v. United

States, 110 Fed. C|.62,66 (2013); Kalickv. United States, 109 Fed. C|.551,558, affd,

541 F. App'x 1000 (Fed. Cir. 2013); Hampel v. United States, 97 Fed. Cl. 235, 238,

affd,429 F. App'x 995 (Fed. Cir.2011), cert. dismissed, 132 S. Ct. 1105 (2012);

Woodson v. United States, 89 Fed. Cl. 640, 650 (2009); McCullouqh v. United States,

76 Fed. Cl. 1, 3 (2006), appeal dismissed,236 F. App'x 615 (Fed. Cir.), reh'o denied

(Fed. Cir.), cert. denied, 552 U.S. 1050 (2007); Aoee v. United States,72 Fed. Ct.284,

290 (2006); Zhenqxino v. United States, 71 Fed. Cl. 732,739, affd, 204 F. App'x 885

of Johnson's complaint would not cure its jurisdictional deficiency." Johnson v. United

States, 411 F. App'x at 306 (internal citation omitted); see also Wood v. United States,

91 Fed. Cl. 569, 578 (2010). The court notes, however, that a 2012 decision of this

court indicated that a claim premised upon 28 U.S.C. S 1495 and 28 U.S.C. S 2513

should be dismissed under RCFC 12(bXO), for failure to state a claim upon which relief

canbegranted. SeeSvkesv.UnitedStates, 105Fed.Cl.at234.lnMr.Brickey'scase,

even if this court were to determine it had jurisdiction over plaintiffs complaint pursuant

to 28 U.S.C. S 1495, Mr. Brickey's case, nevertheless, would be dismissed forfailure to

state a claim upon which relief can be granted, as he fails to allege, or comply with, the

requirements of 28 U.S.C. S 2513.

6

Also among the documents attached by plaintiff to the submission filed in this court is

a May 17, 2012 letter from Jason A. Sickler, Regional Counsel from the ,,U.S.

Department of Justice, Federal Bureau of Prisons, south central Regionat office,"

denying plaintiff's claims for "settlement under the Federal Tort Claims Act, 2g U.S.C.

SS 2671 el seg., and authority granted by 28 C.F.R. S 0.172,'for "compensation for lost

wages" plaintiff "allegedly sustained at the Federal Correctional Institution (FCl) in El

Reno, oklahoma and FCI seagoville during the late 1960s." (emphasis in originai). Mr.

sickler explained that, "[t]here is no indication that you sustained any injury caused by

the negligent or wrongful act or omission of any Bureau of prisons employee acting

within the scope of his or her employment." Mr. Sickler continued that "pursuant to 2g

u.s.c. 2401(b) a tort claim against the united states is forever barred unless it is

presented to the appropriate federal agency with [sic] two years after such claims

accrues. Therefore your claim is denied."

11

(Fed. Cir.), reh'q denied (Fed. Cir. 2006). Therefore, this court does not have

jurisdiction over plaintiff's tort claim.

As indicated above, the plaintiff did not pay the filing fee required to commence

proceedings before the court. In order to provide access to this court to those wno

cannot pay the filing fees mandated by RCFC 77.1(c) (2013), the statute at 28 U.S.C. g

191 5 (2006) permits a court to allow plaintiffs to file a complaint without payment of fees

or security, under specific circumstances. The standard in 28 U.S.C. g 191S(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.q., Rowland v. Cal. Men's Colonv. Unit ll Men's Advisorv Council, 506

U.S. 194,217-18 (1993); Fuentes v. United States, 100 Fed. Ct.85,92 (2011). In

Fiebelkorn v. United states, the united states court of Federal claims indicated:

[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.

fieqelkorn v, Unite ,77 Fed. Cl. 59,62 (2007); see also Haves v. United States,

71 Fed. cl. 366, 369 (2006). Although not included as a separate motion to proceed 1n

forma pauperis, Mr. Brickey attached to his complaint a copy of the Application to

Proceed in Forma Pauperis he had previously submitted to the United States District

court for the western District of rexas. Recognizing the plaintiffs pro se status, the

court accepts the previously submitted Application to proceed in Forma pauperis as a

motion to proceed in forma pauperis in this court. Although plaintiffs income level and

absence of savings may qualify him for in forma oaupeiis status, as discussed and

determined above, plaintiff's complaint is dismissed for lack of jurisdiction in this court.

coNcLustoN

- 2513,Because plaintiff fails to comply with the statutory requirements of court

S plaintiff's complaint is DlsMlssED, without preludice. The clerk

of 2g U.S.c.

shall

enter JUDGMENT consistent with this Order.

IT IS SO ORDERED.

ARIAN BLANK HORN

Judge

lz