Emerson v. United States

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Pro Se

No. l5-389C FILED

(Filed: September 3, 2015)

sEP'- 3 20t5

) U,S. COURT OF

CHRISTOPHERJ.EMERSON, ) FEDEMLCI.AIMS

)

Plaintiff,

) Pro Se Plaintiff; Motion to Dismiss for

) Lack of Subject Matter Jurisdiction;

v. ) RCFC 12(b)(1); Unjust Conviction

) and Imprisonment; 28 U.S.C. $ 1495;

THEUNITEDSTATESOFAMERICA, ) 28U.S.C.$2513.

',

Defendant. )

)

)

)

Christopher J. Emerson, Tennessee Colony, TX, plaintiffplq se.

Daniel Kenneth Greene,Tial Attomey, with whom were Reginald T.

Blades, Jr., Assistant Director, Robert E. Kirschman, Jr., Director,

Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for defendant.

OPINION AND ORDER

KAPLAN, Judge.

This case is before the Court on the govemment's motion to dismiss for lack of

subject matter jurisdiction and plaintiffs motions for judgment on the pleadings and for

summary judgment. For the reasons set forth below, the govemment's motion to dismiss

is GRANTED, and plaintiff s motions are DENIED as moot.r

BACKGROT]ND

Plaintiff Christopher J. Emerson is currently incarcerated in the Mark W. Michael

Unit, a Texas Departmentof Criminal Justice prison iocated in Tennessee Colony, Texas.

Compl. at 2; Def.'s Mot. to Dismiss at 1. Mr. Emerson was convicted of an October

' Mr. Emerson has filed a motion to proceed in forma pauperis. The Court GRANTS

that motion for purposes ofdeciding the pending motion to dismiss.

1985 aggravated sexual assault in Harris County, Texas and sentenced to thirty-five years

confinement in the Texas Department of Corrections. See Emerson v. Thaler, 544 F.

App'x 325, 326 (5th Cir.2013); Emerson v. State, 756 S.W.2d 364,365 (Tex. App.

1988); see also Compl. Ex. I at 1. He was separately convicted of a November 1985

sexual assault of the same victim, but the Texas Court of Criminal Appeals later

overtumed the second conviction because ofthe prosecution's discriminatory use of

peremptory challenges. Emerson v. State,851 S.W.2d269,274-75 (Tex. Crim. App.

1993). It appears that he was never retried for this second offense.

Mr. Emerson claims that he was unjustly convicted and impdsoned and that he is

actually innocent of the charges on which he was convicted. Compl. at2. In addition, he

rurmes as defendants sixteen federal district and appellate judges, alleging that they

violated his constitutional rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth, Tenth, Thirteenth, and Fourteenth Amendments. Id. At 2-3. Also citing various

criminal statutes, he contends that they "are responsible for the perpetuation of . . . [his]

unjust conviction and imprisonment" and that they have "conspired to actively injure,

oppress, threaten and intimidate" him for exercising his constitutional rights. Id. at 1,7 .

As relieffor these alleged wrongs, Mr. Emerson seeks (1) unspecified damages for unjust

conviction and imprisonment under 28 U.S.C. g 1495, id. at 1; (2) habeas corpus relief

under 28 U.S.C. $ 2254, id. at 1, 4-8; and (3) "declaratory relief' and "[s]uch other

equitable relief [that the Court may] deem[] as just, equitable[,] and fair," id. at 1, 9.

In its motion to dismiss, the govemment argues that (1) Mr. Emerson "has failed

to allege, and cannot demonstrate, any of the jurisdictional prerequisites for" a claim of

unjust conviction and imprisonment pursuant to 28 U.S.C. $$ 1495 and 2513; (2) the

Court ofFederal Claims does not have jurisdiction to grant habeas corpus relief or to

review other federal court judgments denying such relief; (3) the Court of Federal Claims

does not have jurisdiction to rule on Mr. Emerson's allegations of criminal violations or

his constitutional tort claims; and (4) Mr. Emerson's claim for equitable relief is not

"incident ofor collateral to" a claim for monetary relief, as required for this Court to have

jurisdiction under the Tucker Act. Def.'s Mot. to Dismiss 4, 7-8. 10. For the reasons set

forth below, the Court agrees with all four of the govemment's arguments and therefore

dismisses Mr. Emerson's complaint.

DISCUSSION

I. Standards for Subject Matter Jurisdiction

In deciding 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 "inquire into jurisdictional facts" to determine whether

it has jurisdiction. Rocovich v. United States,933F.2d99l,993 (Fed. Cir. 1991). Itis

well established that complaints that are filed by pp se plaintiffs, as this one is, are held

to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,

404 U.S. 519,520 (1972). Nonetheless, even plq qg plaintiffs must persuade the Court

that jurisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl.

497 ,499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir. 2004).

The Court ofFederal Claims has jurisdiction under the Tucker Act "to render

judgment upon any claim against the United States founded either upon the Constitution,

or any Act ofCongress or any regulation ofan 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. $ 1a91(a)(1) (2012). The Tucker Act also gives

this court limited jurisdiction to grant equitable and declaratory relief, but only when such

relief is "an incident of and collateral to" a money judgment. Id. g 1a91(a)(2); Bobula v.

U.S. Dep't ofJustice, 970 F.3d 854, 859 (Fed. Cir. 1992).

The Tucker Act waives the sovereign immunity of the United States to allow a

suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does

not confer any substantive rights on a plaintiff, United States v. Testan, 424 U.S. 392,

398 (197 6). Therefore, a plaintiff seeking to invoke the court's Tucker Act jurisdiction

must identif' an independent source of a substantive right to money damages from the

United States arising out ofa contract, statute, regulation, or constitutional provision.

Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir.

2008).

In addition to the Tucker Act, 28 U.S.C. g 1495 gives the Court of Federal Claims

'Jurisdiction to render judgment upon any claim for damages by any person unjustly

convicted of an offense against the United States and imprisoned." Section25l3 of the

same title sets forth the "requisite facts" that "[a]ny person suing under section 1495 . . .

must allege and prove."2 28U.S.C. $ 2513. It further provides that proof of such 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." Id. € 25136).

2

These facts include the following:

(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 ofthe court setting aside or reversing such conviction,

or that he has been pardoned upon the stated ground ofinnocence 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 Columbia, and he did

not by misconduct or neglect cause or bring about his own prosecution.

28 U.S.C. g 2s13(a).

I Application of Standards to Mr. Emerson's Claims

A. The Court Lacks Jurisdiction over Mr. Emerson's Unjust Conviction

and Imprisonment Claim

Although Mr. Emerson alleges that he was unjustly convicted and imprisoned, 28

U.S.C. $ 1495 cannot provide a basis for jurisdiction in his case. For one thing, as the

govemment observes in its motion to dismiss, Mr. Emerson's conviction was not for an

"offense against the United States." 28 U.S.C. $ 1495. Rather, he was convicted in a

Texas state court under Texas state law. See Emerson, 756 S.W. 2d at 365; Emerson,

544 F. App'x at 326; see also Robinson v. United States, No. 99-5120, 2000 WL 158487,

at t 1 (Fed. Cir. Feb. 1 1, 2000) (affirming Court of Federal Claims's dismissal for lack of

subject matter jurisdiction over plaintiff s complaint when plaintiff was hied and

convicted of criminal charges in Indiana state court); Jiron v. United States, 118 Fed. Cl.

190,201 (2014) (dismissing plaintiffs complaint for lack of subject matter jurisdiction

because plaintiff was tried and convicted of criminal charges in Colorado state court).

Therefore, because $ 1495 grants this court jurisdiction to hear claims only by a person

unjustly convicted of an offense against the United States, that statute does not provide a

basis for jurisdiction over Mr. Emerson's claim.

A separate and independent ground on which Mr. Emerson's unjust conviction

and imprisonment claim must be dismissed is that Mr. Emerson has not provided, as

required under 28 U.S.C. g 25 13, a certificate proving that his conviction was set aside by

a court on the ground that he is not guilty or that he has been pardoned upon the stated

ground ofinnocence. See. e.g., Humphrey v. United States, 52 Fed. Cl. 593, 598 (2002)

(holding that Court of Federal Claims lacked jurisdiction to entertain claim ofunjust

conviction and imprisonment, absent a valid certificate ofinnocence), afPd, 60 F. App'x

292,295 (Fed. Cir. 2003). Further, and even regardless of the requirement to fumish a

certificate, Mr. Emerson is currently imprisoned on a conviction that, to the court's

understanding, has not been set aside. Although his second conviction was reversed by

the Texas Court of Criminal Appeals, his first conviction was affirmed on direct appeal.

Emerson, 544 F. App'x at 326 (citing Emerson, 756 S.W. 2d at 370). Because Mr.

Emerson has not and cannot satisfu jurisdictional prerequisites under 28 U.S.C. $$ 1492

and25l3, the Court must dismiss his claim for unjust conviction and imprisonment.

B. The Court Does Not Have Jurisdiction to Grant Habeas Corpus

Relief or to Review Other Courts' Denials of Such Relief

Mr. Emerson cites the habeas statute throughout his complaint and seeks

"[i]mmediate enforcement" of that statute as relief. Compl. at 1,4-8. That statute,

however, explicitly provides a list of courts and judicial officers authorized to entertain

habeas applications, and this list does not include the Court ofFederal Claims or any

judge thereof. 28 U.S.C. g 225a@) ("The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a writ ofhabeas corpus in

behalfofa person in custody pursuant to the judgment ofa State court . . . .,'); see also

Ledford v. United States,297 F.3d 1378, 1381 (Fed. Cir.2002). Thus. to the extent that

Mr. Emerson's complaint seeks a writ of habeas corpus from this Court, it must be

dismissed for lack of subject matter jurisdiction.

C. The Court Lacks Jurisdiction Over Mr. Emerson's Tort. Criminal.

and Constitutional Claims

As noted above, Mr. Emerson names as defendants sixteen federal district and

appellate judges and alleges that they have "conspired to actively injure, oppress, tlreaten

and intimidate" him for exercising his constitutional rights. Compl. at 1 , 7. As a

preliminary matter, this Court only has jurisdiction over claims "against the United

States." 28 U.S.C. $ 1a91(a)(1) ("The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the United States . . . ."). It does

not have jurisdiction over claims against individuals in general or federal judges in

particular. See Brown v. United States, 105F.3d 621,624 (Fed. Cir. 1997) ("The Tucker

Act grants the Court of Federal Claims jurisdiction over suits against the United States,

not against individual federal officials"); Coleman v. United States, 1 16 Fed. Cl. 461, 470

(2014) (citing Mireles v. Waco, 502 U.S. 9, 11-13 (1991)) (observing that "[]udges enjoy

immunity from suit for activities performed in their official judicial capacity").

Moreover, in asserting that the actions of the judges named in his complaint

violated his constitutional rights and that the judges "conspired to actively injure,

oppress, threaten and intimidate" him, Mr. Emerson appears to allege tortious and

criminal conduct. Compl. at 7. This Court, however, does not have jurisdiction over

claims sounding in tort, nor does it have jurisdiction "to adjudicate any claims

whatsoever under the federal criminal code." Joshua v. United States,17 F.ld378,379

(Fed. Cir. 1994); see also 28 U.S.C. g 1a91(a)(1) ("The United States Court ofFederal

Claims shall have jurisdiction to render judgment upon any claim against the United

States . . . not sounding in tort"); Coleman, 1 16 Fed. Cl. at 471(dismissing for lack of

jurisdiction tort claims brought against a federal judge). Furthermore, this Court does not

have jurisdiction over Mr. Emerson's constitutional claims because the constitutional

provisions that he cites do not mandate the payment of money damages. See. e.q., United

States v. Connolly,716 F.2d 882, 887 (Fed. Cir. 1983) ("[T]he [F]irst [A]mendment. . .

cannot be . . . interpreted to command the payment of money"); LeBlanc v. United States,

50 F.3d 1025, 1028 (Fed. Cir. 1995) ("[T]he Due Process Clause ofthe Fifth and

Fourleenth Amendments [and] the Equal Protection Clause . . . . do not mandate payment

of money by the govemment."); Carter v. United States,228 Ct. Cl. 898, 900 (Ct. Cl.

1981) (observing that the Thirteenth Amendment "do[es] not grant a right to the payrnent

of money"); Jiron, 1 1 8 Fed. Cl. at 199 (observing that the Court of Federal Claims does

not have "jurisdiction to adjudicate ciaims under the Fourth, Sixth, Seventh, Eighth,

Ninth, and Tenth Amendments to the United States Constitution"). As a result. Mr.

Emerson's claims grounded on constitutional rights or criminal statutes must be

dismissed for lack of subject matter jurisdiction.

D. The Court Does Not Have Jurisdiction to Grant Mr. Ernerson,s

Request for Equitable Relief

Finally, this Court does not have jurisdiction to grant Mr. Emerson's request for

equitable relief. "Unlike the district courts . . . the [Court of Federal Claims] has no

general power to provide equitable relief against the Govemment or its officers.,, United

States v. Tohono O'Odham Nation, 131 S. Ct. 1723,1729 (2011). Rather, the Court has

jurisdiction over claims "for liquidated or unliquidated damages,', and only ,,[t]o provide

an entire remedy and to complete the relief afforded by [a money judgment], the court

may, as an incident of and collateral to any such judgment," grant equitable relief. 28

U.S.C. $ 1491(a). Especially in light ofthe Court's conclusion that it lacks jurisdiction

over all of Mr. Emerson's claims, his request for equitable reliefis not "an incident ofor

collateral to" any claim for monetary reliefover which the Court has jurisdiction.

CONCLUSION

As explained above, the govemment's motion to dismiss is GRANTED and

plaintiff s complaint is DISMISSED without prejudice. Plaintiff s motions for judgment

on the pleadings and for summary judgment are DENIED as moot. The Clerk of the

Court shall enter judgment accordingly.

IT IS SO ORDERED.

0-M-

ELAINE D. KAPLAN

Judge