Manuel v. United States

ORIGIIUAI

lln tbe @nfte! $tutts @ourt of felrrul @lufms

No. 12-648C FILED

Fifed: March 7.2014

. MAR 7 2014

DAVID ROWLAND MANUEL. - U.S. ccufl | OF

- FEDEHALCLA|MS

Plaintiff,

Pro Se Plaintiff: ln Forma

v.

. Apptici-tioTf

- -paui-eris

28 U.S.C. S 1915; Lack of

UNITED STATES, * Subject Matter Jurisdiction.

Defendant.

David Rowland Manuel, Long Beach, CA, pro se.

David F. D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil

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

With him were Bryant G. Snee, Acting Director, Commercial Litigation Branch, and

Stuart F. Delery, Assistant Attorney General, Civil Division.

ORDER

HORN. J.

Pro se plaintiff, David Rowland Manuel, filed a complaint in this court naming the

"United States," and "Federal Student Aid U.S. Department of Education" as

defendants.l In his complaint plaintiff requests an exemption from revised "legislation in

Title 34 Code of Federal Regulations," which plaintiff alleges limits his eligibility to

receive student financial assistance. Plaintiff alleges that, based on this revised

legislation, recipients of federal financial aid are "limited and terminated after six

semesters or 6007o of receiving student aid grants or loans in the full amount," for post-

secondary schools and college. Plaintiff claims that he attended Long Beach City

College, Liberal Arts Campus, a community college in Long Beach, California, and that

the legislation limited his eligibility for a Federal Pell Grant in the amount of $3,500.00

that was offered to him by the Financial Aid Office of his college for full-time attendance.

Plaintiff attached to his complaint a Financial Aid Award Notification Letter, issued by

Long Beach City College on May 29, 2012, to demonstrate that he was offered a

Federal Pell Grant in the amount of $1,750.00 for the fall semester and another Federal

Pell Grant in the amount of $1,750.00 for the spring semester. Plaintiff states this was

1 In the caption of his complaint, plaintiff

conectly names the United States as the

defendant, but in the section of his complaint titled "Parties," plaintiff names "Defendant:

Federal Student Aid U.S. Department of Education."

his "only proof for this case." Plaintiff also states in his complaint that he wishes to

"remain permanently eligible for federal student aid." Plaintiff also references Title Vl,

Section 602 and Section 603 of the Civil Rights Act of 1964, which he states is "a

federal law that supersedes all federal administrative laws of the U.S. Department of

Education by federal preemption (Article 1 Section I Clause 18 and Article Vl Clause 2

U.S. Constitution)." (emphasis in original). Plaintiff claims that "[t]his court has

jurisdiction pursuant to 28 USC 1331 and 28 USC 1343," and that a "lflederal question

arises pursuant to 28 USC 1491." Plaintiff also alleges that "[t]he venue is proper for

this court pursuant to 28 USC 1391 because the Defendant is a United States federal

department. "

Along with his pro se complaint, plaintiff submitted an Application to Proceed ln

Forma Pauperis, asserting that he is unable "to pay all court fees," and requesting

waiver of court costs and fees. His Application indicates that he is unemployed, and

"[fjor the past 12 months . had received gifts of money in the amount of $700 each

month from friends and/or relatives. $8,400 yearly." Plaintiff further states: "Also for the

past 12 months I had received general relief payment aid from the Los Angeles County

Department of public social services in the amount ol $221 each month. Yearly total is

$2,652.' In his Application, plaintiff also asserts that he has not received any pensions,

annuities, life insurance, rents, interest or dividends in the last twelve months, and he

states he does not own real estate, stock, bonds, cash, savings or checking accounts,

an automobile or any other valuable property.

In order to provide access to this court to those who cannot pay the filing fees

mandated by Rule 77.1(c) (2013) of the Rules of the United States Court of Federal

Claims (RCFC), the statute at 28 U.S.C. S 191 5 (2006) permits a court to allow ptaintiffs

to file a complaint without payment of fees or security, under specific circumstances.

The standard in 28 U.S.C. g 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.q., Rowland v. Cal. Men's

Colonv, Unit ll Men'sAdvisorv Council,506 U.S. 194,217-18 (1993); Fuentes v. United

States, 100 Fed. Cl. 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.

S 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 Haves v. United States,

71 Fed. Cl. 366, 369 (2006). Although Mr. Manuel's income level and absence of

savings may qualify him for in forma pauoeris status, as is discussed below, his

complaint is dismissed for lack of jurisdiction in this court.

Defendant moved to dismiss plaintiffs complaint, pursuant to RCFC 12(bX1)

(20'13), alleging that this court does not have subject matter jurisdiction to entertain Mr.

Manuel's claims, as plaintiff "has not identified a source of law, separate from the

Tucker Act, 28 U.S.C. S 1491, that creates a separate right to money damages."

Moreover, defendant argues, "28 U.S.C. SS 1331, 1343, and 1391 do not establish

jurisdiction." Defendant further argues that "this court lacks jurisdiction pursuant to the

Civil Rights Act of 1964." Although not explicitly raised by plaintiff, defendant also

argues that "Mr. Manuel does not allege a contract with the United States," and

contends that although Mr. Manuel attached a financial aid letter from Long Beach City

College to the complaint, "[t]o the extent he may assert the existence of a contract

based upon that letter, such a contract hypothetically would be with Long Beach City

College, and not with the United States." To date, plaintiff has not responded to the

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

provided to do so under the court's Rules.

DISCUSSION

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

invoke review by a court, oro se plaintiffs are entitled to liberal construction n 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, 9a (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle 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 plaintiff] has

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

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

293 (1995) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1'169 (6th Cir.

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

(Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a oro

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 Huqhes 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'q and reh'q en banc denied (Fed. Cir. 2002)); see

also Harris 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. C|.249,253 (2007))).

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."' Arbauqh 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 subjeclmatter jurisdiction exists, even when no party challenges it." (citing

Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v. OEA. lnc., 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 Druo Stores N.W., lnc., 918 F.2d

160, 161 (Fed. Cir. 1990))); View Enq'q, lnc. 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 subjeclmatter

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

inthelitigation,evenaftertrial andtheentryofjudgment." Arbauohv.Y&HCorp.,546

U.S. at 506; see also Rick's Mushroom Serv., Inc. v. United States,521 F.3d 1338,

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

subject matter jurisdiction at any time." (citing Arbauoh 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. Cir. 2004), cert. denied, 545 U.S. 1127 (2005): and Fanninq. Phillips &

Molnarv. 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. Cir. 201 1). 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.

Holdinos,370 F.3d'1354, 1369 (Fed. Cir.) (citing Textile Prods.. Inc. v. Mead Corp., 134

F.3d 148'1, 1485 (Fed. Cir.), reh'q denied and en banc suqoestion declined (Fed. Cir.

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

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

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(a)(1), (2) (2013); Fed. R. Civ. P. 8(aX1), (2) (2013); see atso

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,

which 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 Tribe Claims

Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaullev 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 Coro.,

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 ptaiititt's fac.-tual allegations must'raise a right to relief above the speculative level'

and cross'the line from conceivable to plausible."' Three S Consultino v. United States,

104 Fed. cl. 510, 523 (2012) (quoting Bell Atl. coro. v. Twomblv, 550 u.s. at 555). As

;[a] pleading that offers 'labels and conclusions' or 'a

stated in Ashcroft v. iqbal,

formulaic recitation oi 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, 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 (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))); Scheuerv. Rhodes,416 U.S.232,236

(1974), abrooated on other qrounds !y Harlow v. Fitzqerald,45T U.S.800 (1982),

recoqnized !y 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'o en banc denied (Fed. Cir. 2002), cer1.

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 Unitec

States, or for liquidated or unliquidated damages in cases not sounding in

tort.

28 U.S.C. $ 1a91(a)(1) (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. Mitcheil, +OS U.S. Z06, Zt6 (198S;, see arso

Greenlee Ontv.. Ariz. v. United States , 487 F.3d 871, 875 (Fed. Cir.), fClS EhSE

banc denied (Fed. Cir. 20A7), ceft. denied,552 U.S. tt+Z lZOOay; g41nre11g4@ "riO

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 agarnsr

the united states. . . ." United states v. Mitchell, 463 u.s. at 216; see ilso United

states v. white Mountain Apache Tribe, s37 u.s. 46s, 472 (2003); smiftr u Uniteo

States, 709 F. 3d 1114, 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., Inc. 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. lCoro. v. United States, 178 Ct. Cl. 599, 605-06,1

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

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

(quoting Clapo v. United States,127 Ct. 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 tv.

United Statesl, 424U.5.1392,1 401-02 [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 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 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.

Ontario PowerGeneration. 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.

Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S. at 400); 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. Navaio

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

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

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 Helicooter 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).

ln the case currently before the court, plaintiff indicates that he seeks an

exemption from limitations on recipients of federal financial aid for college students by

the revised legislation "in Title 34 Code of Federal Regulations." As noted above,

plaintiff claims that the "new legislation of federal financial student aid passed on July 1'

2012," limits his "eligibility for federal financial student aid grant" to six semesters

Plaintiff asks for his eligibility to be reinstated permanently. The legislation plaintiff

appears to reference is the Higher Education Act of 1965, Title lV, Part A, Subpart 1'

Pub. L. 89-329,79 Stat. 1219, which was amended, effective July 1,20'12' by section

309 of the Consolidated Appropriations Act of 2012, Pub. L. 112-74' 125 Stat. 786'

1 1 00 (201 1). The Higher Education Act, at section 401 , codified at 20 U.S.C.A. S 1 070a

(2012), titled "Federal Pell Grants: amount and determinations; applications," governs

eligibility to receive Pell Grants. The Consolidated Appropriations Act ot 2012 reduced

the maximum duration of a student's eligibility to receive Federal Pell Grants from

eighteen full-time semesters to twelve fulltime semesters.

In his request to be exempted from "the new Legislation in Title 34 Code of

Federal Regulations," plaintiff conflates the statute and implementing federal

regulations. The statute at 20 U.S.C.A. S 1070a(cX5) revised the maximum duration of

a student's eligibility to receive a Pell Grant from eighteen fulltime semesters to twelve

full-time semesters. In its current version, section 401(c)(5) of the Higher Education

Act, codified at 20 U.S.C.A. $ 1070a(c)(5), provides:

The period during which a student may receive Federal Pell Grants shal

not exceed 12 semesters, or the equivalent of 12 semesters, as

determined by the Secretary by regulation. Such regulations shal

provide, with respect to a student who received a Federal Pell Grant for a

term but was enrolled at a fraction of full-time, that only that same fraction

of such semester or equivalent shall count towards such duration limits.

20 U.S.C.A. S 1070a(cX5)

Just as the statute at 20 U.S.C.A. $ 1070a does not impose a six semester

limitation on who may receive a Pell Grant, the applicable section of Code of Federal

Regulations regarding Pell Grants also does not establish a six semester limitation, as

plaintiff alleges. See, oenerallv, 34 C.F.R. Part 690 (2013). Nowhere in Part 690 of

Title 34 of the code of Federal Regulations, which addresses the Pell Grant program,

does such a six semester limitation appear. Moreover, as with 20 U.S.C.A. S 1070a,

the regulations in Title 34 of the Code of Federal Regulations do not mandate

compensation by the federal government for failure to obtain a Pell Grant, nor does the

Pell Grant program itself establish entitlement for the federal fisc. Rather, the statute

and the regulations set guidelines for determination and administration of Pell Grants by

educational institutions. See 20 U.S.C.A. g 1070a(c)(5); 34 C.F.R.690.61 (2013); 34

C.F.R. 690.71 (2013). Therefore, the statute governing eligibility of the Pell Grants

program is not money mandating statute and this court lacks jurisdiction to consider

plaintiff's claim to be given a permanent waiver from the limitations on Pell Grant

eligibility.

Plaintiff's complaint also states: "This court has jurisdiction pursuant to 28 USC

1 .

331 and 28 USC 1 343 . . . The venue is proper for this court pursuant to 28 USC

1 391 because the Defendant is a United States federal department." Section 1331 of

Title 28 of the United States Code states: "The district courts shall have original

jurisdiction of all civil actions arising under the constitution, laws, or treaties of the

United States." 28 U.S.C. S 1331 (2006). "'The United States Court of Federat Ctaims

. . . is not a United States District Court and, therefore, does not have jurisdiction over

claims arising under23 U.S.C. S 1331."' Halim v. United States, 106 Fed. C|.677,693

(2012) (quoting Hall v. United States,69 Fed. Ct.51,56 (2005)); see atso Mims v.

Arrow Fin. Servs.. LLC, 132 S. CL.740,747 (2012) ("Congress granted federal courts

general federal-question jurisdiction in 1875. See Act of Mar. 3, 1875, S 1, 18 Stat.

470."); Faulkner v. United States, 43 Fed. Cl. 54, SS (1999) (citing Crocker v. United

States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)). Moreover, as stated in DeVilbiss v.

Small Business Administration, 661 F.2d 716 (8th Cir. 1981), Section 1331 is a

jurisdictional statute that "do[es] not create any substantive right enforceable against the

United States for money damages." ld. at 718; see also Frv v. United States,72 Fed.

C|.500,504-505(2006)("Section[] 1331 ...of Tifle28of theUnitedStatesCodeonty

confer[s] jurisdiction on United states District courts. . . . The United states court of

Federal Claims is not a'district court,'within the meaning of . . .28 U.S.C. S . . . 1331.)

(citing 28 u.s.c. S 1331) (footnotes and additional citation omitted). Furthermore,

plaintiff's reliance on 28 U.s.c. g 1391 also fails. As noted by defendant, "[t]his venue

provision is also applicable only to the district courts." section 1391 of ritle 2g of the

united states code states "[e]xcept as otherwise provided by law-(1) this section shall

govern the venue of all civil actions brought in district courts of the United states." 2g

U.S.C. S 1391(aX1) (2006); see also Cox v. United States, 105 Fed. CL213,218,

aopeal dismissed (Fed. Cir. 2012).

In his complaint, plaintiff also cites to "28 USC 1343," as well as "Tifle Vl Section

602 and section 603 of the civil Rights Act of 1964," 1o support jurisdiction for his case

in this court. The statute at 28 u.S.c. S 1343 (2006) specifically provides that

jurisdiction to adjudicate civil rights complaints resides in the United States District

Courts.' See Elkins v. United States,229 Ct. Ct.607, 608 (1981) (,[W]e do not have

2

The statute at 28 U.S.C. S 1343 states, in part:

I

jurisdiction over claims based upon alleged violations of the civil rights laws.") (citation

omitted); see also Waqstaff v. United States, 105 Fed. Cl. 99, 109 (2012); Mav v. United

States, 104 Fed. Cl. 278,284 (2012), atf d,534 F. App'x 930 (Fed. Cir. 2013); Hanes v.

United States, 44Fed.C|.441,449 (1999), aff'd,243 F.3d 562 (Fed. Cir.), reh'q denied

(2000); Sanders v. United States, 34 Fed. Cl. 75, 80 (1995), aff'd, 104 F.3d 376 (Fed.

Cir.), reh'q denied, in banc suqqestion declined (Fed. Cir. 1996) (the general civil rights

claims alleged are not based on any money-mandating provisions, and do not give rise

to liability for the United Slates), cert. denied, 522 U.S. 831, reh'q denied, 522 U.S.

1036 (1997); Blassinqame v. United States,33 Fed. C|.504,505, aff'd,73 F.3d 379

(Fed. Cir. 1995), reh'o denied, cert. denied,517 U.S. 1237 (1996).

Finally, Mr. Manuel requests an order from this court granting him a permanent

exemption from the new legislation in "Title 34 Code of Federal Regulations." To the

elitent that Mr. Manuel is asking for declaratory relief, the United States Court of Federal

Claims has limited jurisdiction to grant declaratory relief. As stated by the United States

Court of Appeals for the Federal Circuit:

The Court of Federal Claims has never been granted general authority to

issue declaratory judgments, and to hold that the Court of Federal Claims

may issue a declaratory judgment in this case, unrelated to any money

claim pending before it, would effectively override Congress's decision not

(a) The district courts shall have original jurisdiction of any civil action

authorized by law to be commenced by any person:

(1) To recover damages for injury to his person or property,

or because of the deprivation of any right or privilege of a

citizen of the United States, by any act done in furtherance

of any conspiracy mentioned in section 1985 of Title 42;

(2) To recover damages from any person who fails to

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were about

to occur and power to prevent;

(3) To redress the deprivation, under color of any State law,

statute, ordinance, regulation, custom or usage, of any right,

privilege or immunity secured by the Constitution of the

United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of the

United States;

(4) To recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection of

civil rights, including the right to vote.

to make the Declaratory Judgment Act applicable to the Court of Federal

Claims.

Nat'l Air Traffic Conkollers Ass'n v. United States, 160 F.3d 714,716-17 (Fed. Cir.

1998); see also United States v. Tohono O'Odham Nation, 131 S. Ct. 1723, 1729

(2011) (The United States Court of Federal Claims "has no general power to provide

equitable relief against the Government or its officers."); Massie v. United States, 226

F.3d 1318, 1321 (Fed. Cir.2000) ("Except in strictly limited circumstances, see 28

U.S.C. S 1491(bX2), there is no provision in the Tucker Act authorizing the Court of

Federal Claims to order equitable relief." (citing United States v. Kino, 39S U.S. 1, 4

(1969) ("cases seeking relief other than money damages from the court of claims have

never been 'within its jurisdiction"') and Placewav Constr. Corp. v. United States, 920

F.2d 903, 906 (Fed. Cir. 1990))); James v. Catdera, 159 F.3d 573, S80 (Fed. Cir. 1998)

("[T]he court of Federal claims has no power'to grant affirmative non-monetary relief

unless it is tied and subordinate to a money judgment."' (quoting Austin v. United

States, 206 Ct. Cl.719, 723 (1975), cert. denied,423 U.S. 911 (1975)), 1qh!dqled

(1999); l&esllands \//ater Dist. v. United States, 109 Fed. Ct. 177,192 (2013); Hatim v.

United States, 106 Fed. C|.677,685 (2012); Smalls v. United States,87 Fed. Cl. 300,

307 (2009); Prvor v. United States,85 Fed. Cl. 97, 103 (2008) (,,Apart from ordering

relief under 28 u.s.c. gg 1491(a)(2) or (b)(2), the court of Federal claims has no power

to grant a declaratory iudgment. . . . The court of Federal claims cannot adjudicate a

complaint that seeks only declaratory relief." (citing Nat'l Air Traffic controllers Ass n v.

united states, 160 F.3d at 717)). None of the exceptions which permit ths united

States court of Federal claims to grant declaratory relief apply to plaintiff. This coun,

therefore, does not have jurisdiction to grant plaintiff the declaratory relief that he

requests.

The court notes that plaintiff is a frequent litigant in this and other federal couns,

who has filed numerous defective complaints. For example, Mr. Manuel has filed two

complaints in the United states court of Federal claims, both of which were dismissed

for lack of jurisdiction. see Manuel v. United states, 78 Fed. cl. 31 (2007) and Manuel

v. United states, No. 08-329c (Fed. cl. June 10,2009). In addition to the complaints

filed in this court, plaintiff also has filed at least seven previous complaints in the united

states District court for the central Dishict of california. see David Rowland Manuel v.

Ihe Presidinq Judqe. et a1.,2:13-CV-00380 (C.D. Cal. Jan.30,2013) (Application to

Proceed ln Forma Pauperis, attached to the complaint, denied, as the complaint was

'legally and/or factually patently frivolous.");3 David Rowland Manuel v. peoole of the

United States, 2:12-cY-619 (c.D. cal. Feb. 1, 2012) (plaintiff sought "federal exemption

' subsequently, Mr. Manuel appealed to the united states court of Appeals for the

Ninth circuit. on April 24, 2013, the appeal was dismissed for lack of jurisdiction,

because the "notice of appeal was not filed within 30 days after the district cburt's order

91teq9O 91

February 4,2013." gee David Rowtand Manuel v. presidinq Judqe, et al.,

No 13-55540 (9th Cir. Apr.24,2013) (citing 28 U.S.C. S 2107(a); UniteO States v.

Sadler, 480 F.3d 932, 937 (gth Cir. 2007)).

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status from any statutes, regulations, ordinances by any federal, state, and local entity,"

and the court denied plaintiffs Application to Proceed ln Forma Pauperis because the

complaint was "legally and/or factually patently frivolous"); David Rowland Manuel v.

Honorable Elihu M. Berle. et al., 2:10-CV-07869 (C.D. Cal. Nov. 4, 2010) (Apptication to

Proceed ln Forma Pauperis denied as the complaint was "legally and/or factually

patently frivolous."); David Manuel v. Peoole of the United States of Am. ,2:07-CY-8171

(C.D. Cal. Jan. 31,2008) (Application to Proceed ln Forma Pauperis denied as the

complaint was "legally and/or factually patently frivolous" and "District Court lacks

jurisdiction"); David Manuel v. People of the United States of Am.,2:07-CV-2S56 (C.D.

Cal. May 8, 2007) (Application to Proceed In Forma Pauperis denied as the complaint

was "legally and/or factually patently frivolous."); David Manuel v. Peoole of the United

States of Am., 8:04-CV-00675 (C.D. Cal. June 18, 200a) (The Application to proceed tn

Forma Pauoeris denied as the complaint was "legally and/or factually patenfly frivolous,"

noting that "[p]laintiff has failed to state a cognizable claim against anyone. He refuses

to name any Defendants or state a viable cause of action. The allegations are 'fanciful,

fantastic and delusional."'); David Manuel v. People of the State of Cal., 2:03-CV-2864

(C.D. Cal. May 5, 2003) (Application to Proceed ln Forma Pauperis denied as the

application was "incomplete" and "[i]nadequate[ly] shows indigence."). More

recently, a District court Judge from the central District of california denied an

Application by plaintiff to Proceed ln Forma Pauperis. See Manuel v. presidino Judqe

et al., 2:13-CV-06008 (C.D. Cal. Aug. 29,2013). Ptaintiff appealed to the Ninth Circuit,

who indicated that "[o]ur review of the record confirms that appellant is not entitled to in

forma pauperis status for this appeal because we find the appeal is frivolous. see 2g

U.S.C. S 1915(a)." Manuel v. Presidinq Judoe et at., No. 13-56663 (9th Cir. Oct.23,

2013). The Ninth circuit gave a plaintiff an opportunity to pay the $455.00 filing fee to

the District court for the central District of california and filing fees for the appeal, as

well as proof of payment. Othenrvise the Ninth Circuit stated, "the appeal will be

dismissed by the Clerk for failure to prosecute, regardless of further filings," and

informed plaintiff that "[n]o motions for reconsideration, clarification, or modification of

the denial of appellant's in forma pauperis status shall be entertained." lg!-. plaintiff

failed to pay the requisite fees and the Ninth circuit issued an order on November 21,

2013 dismissing the appeal "for failure to pay the docketing/filing fees in this case."

Manuel v. Presidinq Judqe et al., No. 13-56663 (9th Cir. Nov. 21, 2013)

As in the other cases previously filed by the plaintiff in this court and other United

states Federal courts, the complaint under review by this court is frivolous, in that it is

based on a non-existent statutory language and, like previous cases filed by this

plaintiff, raises issues which are clearly not within the jurisdiction of this court. The

United States Supreme Court explained in Neitzke v. Williams,4g0 U.S.319 (19g9),

that "a complaint . . . is frivolous where it lacks an arguable basis either in law or in fact."

ld. at 325 (The Supreme Court also stated that the term "'frivolous,, when applied to a

complaint, embraces not only the inarguable legal conclusion, but also the fanciful

factual allegation."). The court may dismiss claims that are "based on an indisputably

meritless legal theory" and "claims whose factual contentions are clearly baseless." ld'.

at 327 (the latter category encompassing scenarios that are "fantastic" and

11

"delusional"); see also Denton v. Hernandez, 504 U.S. 25,32-33 (1992); McCullouqh v.

United States, 76 Fed. Cl. 1, 3 (2006), appeal dismissed,236 F. App'x 615 (Fed. Cir.),

reh'q denied (Fed. Cir.), cert. denied,552 U.S. 1050 (2007); Schaqenev. United States,

37 Fed. Cl. 661 , 663 (1 997), appeal dismissed , 152 F .3d 947 (Fed. Cir. 1998) (Table).

The statute,2S U.S.C. g 1915(eX2), governing proceedings in forma pauperis,

authorizes federal courts to deny in forma pauperis status and to dismiss claims if the

court determines that the claims brought by the pro se plaintiff are frivolous or malicious,

or fail to state a claim on which relief may by granted. The statute at 28 U.S.C. g 1 915

"is designed to ensure that indigent litigants have meaningful access to the federal

courts" and "'to assure equality of consideration for all litigants."' Neitzke v. Williams,

490 U.S. at324,329 (quoting Coppedqe v. United States, 369 U.S. 438,447 (1962)).

Although plaintiffs numerous complaints have been fully and fairly reviewed by various

federal courts, plaintiff has been found, multiple times, to have abused the iudicial

system and to have filed frivolous lawsuits.

CONCLUSION

Based on the above, this court lacks jurisdiction to adjudicate the allegations

raised in plaintiffs current complaint. Accordingly, plaintiff is denied in forma pauperis

status, and defendant's motion to dismiss is GRANTED. plaintiff's comolaint is

DlsMlssED, with prejudice. Because plaintiff previously has filed more than three civil

actions in federal courts which have been dismissed as frivolous, plaintiff is barred from

filing any future complaints in forma pauperis pursuant to 28 U.S.c. g 1 915 in this court.

The Clerk of the Court shall enter JUDGMENT consistent with this Order and,

accordingly, shall reject any future complaints filed by this plaintiff without the requisite

filing fee.

IT IS SO ORDERED.

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