Cordova v. United States

OR\GlNAl

1fn tbe Wniteb ~tates ~ourt of jfeberal ~laitns

No. 14-1122C FILED

Filed: October 8, 2015

OCT - s·2ot5

* * * * * * * * * * * * * * * * ** U.S. COURT OF

ROBERT A. CORDOVA, as

* FEDERAL CLAIMS

Administrator of the Estate of

*

General John Sevier,

* Pro Se Plaintiff; In Forma

* Pauperis Application; Motion to

Plaintiff, * Dismiss; Lack of Subject-Matter

* Jurisdiction; Statute of

v. * Limitations

UNITED STATES, *

*

Defendant. *

*

* * * * * * * * * * * * * * * * **

Robert A. Cordova, San Antonio, TX, pro se.

James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division,

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

Reginald T. Blades1 Jr., Assistant Director, Commercial Litigation Branch, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, and Benjamin C. Mizer,

Principal Deputy Assistant Attorney General, Civil Division, Washington, D.C.

OPINION

HORN,J.

Fl NDINGS OF FACT

Prose plaintiff Robert A Cordova alleges that he is filing a complaint, followed by

an amended complaint, on behalf of the estates of General John Sevier and his son, John

Sevier, Jr., 1 of wh ich, plaintiff asserts, he is "the duly appointed and qua Iified ad min istratix,

de bonis non."2 Mr. Cordova initially attempted to file his comp laint in the United States

Court of Federal Claims on November 18, 2014, along with an App lication to Proceed !!J.

1

A lthough plaintiff purports in the body of his complaint that he brings his claims on behalf

of the estate of General Sevier and John Sevier, Jr., the captions of both his initial and

amended complaints list only the estate of General Sevier.

2Capitalization, grammar, spelling, punctuation, and other errors are quoted in this Order

as they appear in plaintiff's submissions.

Forma Pauperis. This complaint was returned to Mr. Cordova because he had failed to

sign the pleading in accordance with Rule 11 of the Rules of the United States Court of

Federal Claims (RCFC) (2015). Plaintiff subsequently amended and refiled his com plaint.

Plaintiff's amended complaint asserts that "[t]his case is brought on the basis that the U.S.

has not paid its debt owed to General Sevier, a debt which is valid, legitimized, and

verified." Plaintiff alleges four separate claims against the United States, for which he

seeks a total of $8,447,594.00, plus interest in compensation.

The claims are briefly summarized as follows. Plaintiffs first claim alleges that in

1783, pursuant to an act of the legislature of North Carolina, "the claimants' descendants

[sic] purchased 225, more or less, land warrants representing 174,474 acres of land, more

or less." Plaintiff further alleges that some of this land was subsequently "ceded" by the

United States to the Cherokee Tribe pursuant to the 1785 Treaty of Hopewell. According

to plaintiff's complaint, in February 1790, the State of North Carolina ceded a portion of

its western territory, including some of the land held by General Sevier, to the United

States, but on the condition that pre-existing property rights in the territory "have the same

force and effect as if such cession had not been made." Plaintiff claims that, nonetheless,

the United States, pursuant to the 1791 Treaty of Helson, ceded some of the lands owned

by General Sevier and John Sevier, Jr. to the Cherokee Nation. Plaintiff also alleges that

in a Bill, dated May 19, 1796, Congress established punishments for res idents of what

had by then become the new state of Tennessee "for doing any act of ownership of lands

represented in this claim [that] were within the Indian boundary." Plaintiff claims that North

Carolina protested this treaty as "a violation of private rights ," and that Congress, in an

Act passed April 18, 1806, recognized that the pre-existing property rights of the Sevier

lands had not been satisfied. Plaintiff claims that General Sevier and John Sevier, Jr.

were never compensated for the expropriation of this land, and seeks total compensation

for the first of his claims in the amount of "$8,330,550 with accrued interest thereon at six

percent (6%) per annum from August 4, 1790, UNTIL PAID." (capitalization in original).

Plaintiff's second claim relates to a total of approximately 51,000 acres of land in

in the "Mississippi Valley," 50,000 of which plaintiff claims General Sevier obtained in

three transactions in 1797, and 1,000 of which were purchased in 1795 by his son James

Sevier. 3 Plaintiff alleges that an April 7, 1798 Act of Congress authorized the

establishment of the Mississippi Territory, which, plaintiff claims, included the 51,000

acres purchased by his alleged ancestors. This Act, according to plaintiff, promised that

the founding of the Mississippi Territory "should in no respect impair the right of the State

of Georgia, or of any other persons to the jurisdiction of the soil of said territory," and that

"the right and claims of . .. all persons interested are thereby declared to be as firm as if

the Act had never been made." On April 24, 1802, according to plaintiff, the State of

Georgia ceded certain lands, including the 51 ,000 acres on which plaintiff's second claim

is based, to the United States for the formation of the Mississippi territory, with a proviso

that the United States may set aside 5,000,000 acres of land in order to compensate all

claims by dispossessed owners on that ceded land. Further, according to plaintiffs

complaint, a March 1803 Act of Congress set aside the 5,000,000 acres, and established

3Other than being father and sons, plaintiff does not explain the relationship between

General Sevier, John Sevier, Jr., James Sevier, and George W. Sevier, discussed below.

2

a procedure by which cla ims for compensation could be made. Although plaintiff asserts,

with respect to General Sevier's property, "that the title and right to his purchased lands

were clearly proven," plaintiffs complaint does not allege that General Sevier or his sons

ever made a claim pursuant to the 1803 Act. Plaintiff claims, however, that General Sevier

and James Sevier did timely deposit deeds of release related to this property with the

Secretary of State on December 31 , 1814, pursuant to the procedure described in a

March 31 , 1814 Act, wh ich, plaintiff alleges, provided for "the indemnification of certain

claimants of public lands in the Mississippi Territory." Plaintiffs complaint further states

that an 1819 treaty between the United States and Cherokee Indians set aside "a 12

square mile area in the Big Bend of the Tennessee River for the education of said

Indians," which allegedly included the 51,000 acres on which plaintiffs second claim is

based. Plaintiff, alleges that neither General Sevier nor James Sevier ever were

compensated for the dispossession of these lands and seeks compensation in the

amount of "$102,000 with accrued interest at six percent (6%) per annum, compounded

interest from March 3, 1803, UNTIL PAID." (capitalization in original).

Plaintiff's third claim relates to a grant of 5,000 acres allegedly awarded to General

Sevier as compensation for his service as a commissioner appointed "to examine the

quantity, quality, etc. of the lands lying in what was called the 'Bend of the Tennessee[.]'"

Plaintiff cl aims General Sevier was appointed to th is position pursuant to a February 20,

1784 A ct of the Legislature of Georgia, and "that on August 14, 1786, the General

Assembly of Georgia adopted a resolution allowing each of the comm issioners who

served 5,000 acres of land in Tennessee as a gratuity and full compensation for their

'trouble[.]'" According to plaintiff's complaint, General Sevier never received the deed for

these 5,000 acres, and the parcel was ultimately ceded by Georgia to the United States

in the same 1803 Act referenced above with respect to Mr. Cordova's second claim.

Plaintiff claims that, on December 5, 1817, General Sevier's son and the administrator of

his estate, George W. Sevier, petitioned Congress to fulfill the promise of 5,000 acres to

General Sevier by granting the land to his heirs. According to plaintiff's complaint,

Congress responded by granting 5,000 acres to the heirs of General Sevier in an Act

passed on May 24, 1824, specifying that this grant should come from the 5,000,000 acres

set aside for the compensation of claims in the 1803 Act discussed above with respect to

plaintiffs second claim. Plaintiff claims that pursuant to this 1824 Act, "fo)n May 12,

1828 ... about 20 patents were recorded in the Land Office at Washington, D.C.," but

that

native Americans occupied the lands named in said patents . . . and an army

of the United States was stationed at that locality to prevent citizens of the

United States from going on said lands , wh ich condition prevailed for many

years after the death of all the children of General John Sevier ....

Plaintiff claims there is no record showing that the patents for this 5,000 acres of land

were ever conveyed to General Sevier's heirs. Plaintiff seeks total compensation for this

claim in the amount of "$10,000 with six percent (6%) annum compound interest from

March 3, 1803, UNTIL PAID." (capitalization in original).

3

Plaintiffs fourth claim concerns military pay that plaintiff claims General Sevier was

owed for his service to the United States in the "Ettowa Campaign" from February 22 ,

1791 to February 22, 1794. Plaintiff claims General Sevier was appointed a Brigadier

General in the United States Army for the purposes of conducting a campaign against

certain unspecified Indian tribes, and asserts that General Sevier subsequently made

"several attempts" to obtain the pay owed to him and the troops he levied for that

campaign. Plaintiff claims, with respect to the monies owed to General Sevier for his

military service, he is due "a total of $5,044.00."4 In total, plaintiff claims as compensation

for his four claims "the sum of $8,447,594 with accrued interest at six percent (6%) per

annum compound interest from the dates hereinbefore stated respectively, UNTIL

PAID."5 (capitalization in original).

The allegations contained in Mr. Cordova's complaint appear to be taken, almost

verbatim and without attribution, from the descriptions of the claims in the 1910 United

States Court of Claims Congressional Reference case of Emmetts Humphreys,

administratrix de bonis non of John Sevier. sr. and John Sevier. jr. v. United States. See

H.R. Doc. No. 63-131 (1913) (which quotes the Court of Claims' Humphreys decision in

full). As plaintiff notes in his complaint, apparently quoting from Humphreys, the claims in

Humphreys were twice referred by the United States Congress to the United States Court

of Claims, a predecessor court of this court, the United States Court of Federal Claims ,

for fact-finding pursuant to the Bowman Act, 22 Stat. 485 (1883). The first referral

occurred on or about February 23, 1905 and the second on February 24, 1908. See H.R.

Doc. No. 63-131 , at 1-2. Like Mr. Cordova, the Humphreys plaintiff, Ms. Emmets

Humphreys, claimed that she was "one of the heirs of .. . Gen. John Sevier" and the "duly

appointed and qualified administratrix de bonis non of the estates of Gen. John Sevier

and of John Sevier, jr." lit at 2. Ms. Humphreys alleged the same four claims as Mr.

Cordova does in the case currently before this court, including that General Sevier and

his heirs allegedly owned the identified lands and that the failure of the United States to

pay General Sevier the amount due for his services in the Ettowa Campaign is a

continuing debt. See id. at 2-5. Ms. Humphreys also sought the same monetary relief as

Mr. Cordova does: "the sum of $8,447,594 with accrued interest at 6 per cent per annum,

compound interest, from the dates hereinbefore stated, respectively, until paid." !!;Lat 5.

The Court of Claims decided the Congressional Reference case on February 28, 1910

and its findings of fact were transmitted to the House of Representatives on January 23,

1913. See id. at 1, 21. In its findings of fact, the Humphreys court determined that it did

not appear that the United States had received any benefit from the lands belonging to

4

The court notes that although this section of plaintiff's complaint makes passing

reference to "a balance of $22 ,817, a sum of which has not been paid" with respect to

General Sevier's services on the "Ettowa Campaign of 1793," plaintiff provides no

indication of what this sum represents, nor does he appear to be seeking reimbursement

for this sum from the United States.

5Plaintiff notes that "[tJh is number in [sic] not reflective of the calcu lation from 191 0 unti I

present, which will be demonstrated within this document." No such documentation,

however, appears to have been provided to this court.

4

General Sevier. See id. at 8, 13, 14. Mr. Cordova, apparently contesting this conclusion

before this court, states, without elaboration, that "[i]t is the contention of the heirs of

General John Sevier that the United States in fact benefited from lands in the creation,

formation and cession of the States of Tennessee, Georgia, Mississippi and Alabama, all

from the lands acquired from what should have been a part of the estate of General John

Sevier." Mr. Cordova also asserts that, "by provisions of the Tucker Act granting

jurisdiction of this case to the Un ited States Court of Federal Claims," his claim "shall

supersede" the Humphreys claim and that "all records and exhibits fi led therein should be

transferred to and considered in connection therewith."

In February 1925, the Senate Committee on Claims issued a report stating that it

had been referred a Bill "making appropriation for payment of claims of John Sevier, sr.,

and John Sevier, jr., in accordance with report and findings in the Court of Claims."

S. Rep. No. 68-991, at 1 (1925). Although not mentioned in plaintiffs initial and amended

complaints, the 1925 Senate Report was identified and quoted in full in an undated

"Reference Service Report" issued by the General Services Adm inistration , wh ich also

provided an overview of the various Sevier claims. Plaintiff attached the GSA Report to

his original complaint filed in this court.6 The Senate Report discussed each of the four

claims discussed in Humphreys, which, as noted above, are identical to those in Mr.

Cordova's complaints, and recommended that the appropriation Bill be "unfavorably

reported and indefinitely postponed." kt at 5.

With respect to the first claim in plaintiff's complaint, the Senate Report notes that

there were "several acts of Congress, passed subsequent to 1800, whereby Gen. John

Sevier or John Sevier, jr., were given every opportunity to establish their claims for said

land and to obtain compensation as the terms of said Federal acts provided ." ~ at 2. In

particufar, the Senate Report noted the last of these Acts, 5 Stat. 41 2 (1841), had been

enacted on February 18, 1841. S. Rep. No. 68-991, at 3. Because no claim appeared to

have been filed under the 1841 Act by the heirs of General Sevier and John Sevier, Jr.,

nor in the sixty-plus years prior to the claim made by Ms. Humphreys, the Senate Report

concluded that "[t]he claim, even if a proper one, seems to have been completely

abandoned by all possible parties in interest," which meant that "it does not appear to be

equitable or just that at this late date the Federal Government should be called upon to

pay out any money upon such a claim," particularly since "the Federal Government never

received any benefit whi le it did hold the ownersh ip to said lands." kt

With respect to the second claim, the Senate Report stated:

In brief, it appears that in substance opportunity was given by legislative

procedure and otherwise, both Federal and by an act passed by the State

of Georgia, whereby Gen. John Sevier and John Sevier, jr. , or their heirs or

legal representatives, could prove and substantiate their claim and receive

compensation therefor, but that neither Gen . John Sevier or John Sevier,

6The 1925 Senate Report also was attached to defendant's Reply to Plaintiffs Amended

Response to Defendant's Motion to Dismiss.

5

jr., nor their heirs or legal representatives saw fit so to do, and in this case

a period of time seems to have lapsed between 1822 and 1907, a period of

over 80 years, during which Gen. John Sevier, John Sevier, jr., their heirs

or legal representatives, have abandoned all claim.

l!;l Given the apparent abandonment of this claim, the report concluded that "[y]our

committee is unable to find any just or equitable reason for any compensation to be

awarded the claimant under this head. " ill at 4.

As for the third claim, the Senate Report cited the Court of Claims' findings of fact

as follows:

[L]ocations were made by the heirs of John Sevier, through their duly

authorized attorney, for the number of acres due John Sevier under said act

of May 24, 1824, and that patents were duly issued to the heirs and legal

representatives of the said John Sevier between June 12, 1828, and

February 26, 1834.

It is further shown that the United States did not at any time receive any

benefit from the original lands upon which John Sevier based his claim.

Your committee, therefore, reports that, in its opinion, no just, legal, or

equitable claim can be sustained in favor of either Gen. John Sevier, John

Sevier, jr., or their heirs or legal representatives, under claim No. 3.

l!;l Regarding the fourth claim concerning General Sevier's military pay, the Senate

Report stated that "General Sevier himself . . . served in the Twelfth and Thirteenth

Congresses, but the record nowhere discloses the fact that he made application either to

Congress or to the War Department for the payment of this claim of $5,044." l!;l The

Senate Report concluded that "no attempt was made by the heirs of General Sevier to

obtain compensation therefor between the years 1796 and 1907, a period of over 100

years," and that therefore "this claim is unjust, inequitable, and should be disallowed."~

Also among the documents attached to plaintiff's original complaint is a letter dated

November 2, 1950 from the Office of the Clerk of the United States Court of Claims ,

apparently in response to an inquiry from former United States Representative Paul J.

Kilday, regarding the status of the claims made by the heirs to General Sevier and John

Sevier, Jr. The letter confirms that the House Committee on Private Land Claims referred

these claims to the Court of Claims for findings of fact, that "the Court on February 28,

1910, filed its findings of fact ... but without recommending any allowance for the

claimant," and that such findings were certified to Congress and reported on January 23,

1913. The letter also stated that "as far as the court is concerned, the Sevier case has

been a closed matter since its certification to Congress in 1913."

After plaintiff's amended complaint was filed, defendant filed a motion to dismiss

pursuant to RCFC 12(b)(1) (2015), or, in the alternative, RCFC 12(b)(6) (2015), for lack

6

of subject matter jurisdiction and failure to state a claim, respectively. After numerous

delays by the plaintiff, defendant's motion has been fully briefed.

DISCUSSION

The court recognizes that plaintiff is proceeding prose. When determining whether

a complaint filed by a pro ~ plaintiff is sufficient to invoke review by a court, Q!Q 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'g denied, 405

U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe,

449 U.S. 5, 9- 10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429

U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014);

Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff'd, 603 F. App'x 947 (Fed.

Cir.), cert. denied, 135 S. Ct. 1909 (2015). "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 .""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original)

(quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clark v. Nat'I

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United

States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App 'x 542 (Fed. Cir. 2011 ); Minehan v. United

States, 75 Fed . Cl. 249, 253 (2007). "Whi le a pro 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 Hughes v.

Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff

bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'g and

reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed.

CL 133, 139 (2014) ("[W)hile the court may excuse ambiguities in a pro se plaintiff's

complaint, the court 'does not excuse [a complaint's] failures ."' (quoting Henke v. United

States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed. Cl. 290, 292

(2013) ("Although plaintiff's 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)).

Even granting the more liberal construction afforded to a complaint filed by a pro

se plaintiff, plaintiff has not met his burden of showing that this court has jurisdiction to

hear the claims contained in his complaint. 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."' Arbaugh v. Y & H Corp., 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

Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) ("When a requirement goes to subject-

matter jurisdiction, courts are obligated to consider sua sponfe issues that the parties

have disclaimed or have not presented."); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

("Courts have an independent obligation to determine whether subject-matter jurisdiction

7

exists, even when no party challenges it." (citing Arbaugh v. Y & H Corp., 546 U.S. at

514)); Special 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.

Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)); View Eng'g, Inc.

v. Robotic Vision Sys., lnQ., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always

look to their jurisdiction, whether the parties raise the issue or not."). "Objections to a

tribunal's jurisdiction can be raised at any time, even by a party that once conceded the

tribunal's subject-matter jurisdiction over the controversy." Sebelius v. Auburn Reg' I Med.

Ctr., 133 S. Ct. 817, 824 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506 (''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."); Cent. 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." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07)); 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 Arbaugh

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

reh'g and reh'g en bane denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and

Fanning, 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. 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.

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

F.3d 1481, 1485 (Fed. Cir.), reh'g denied and en bane suggestion declined (Fed. Cir.),

cert. denied, 525 U.S. 826 (1998)), reh'g and reh'g en bane denied (Fed. Cir. 2004), cert.

granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S.

975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid

Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) ("This court

must always determine for itself whether it has jurisdiction to hear the case before it, even

when the parties do not raise or contest the issue."), reh'g and reh'g en bane denied, 614

F.3d 1330 (Fed. Cir. 2010), cert. denied, 5 U.S. 1169 (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(a)(1), (2) (2015); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v. Twombly, 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 plaintiff's claim,

independent of any defense that may be interposed." Holley 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'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.

United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. 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." Bradley v. C.hiron Corp., 136 F.3d

8

1317, 1322 (Fed. Cir. 1998); see also Mczeal v. Sprint Nextel Corp., 501 F .3d 1354, 1363

n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and

A Miller, Federal Practice and Procedure § 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 Consulting v. United States, 104 Fed. Cl. 510, 523

(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed.

Cir.), reh'g denied (Fed. Cir. 2014). As stated in Ashcroft v. Igbal, "[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. Igbal, 556 U.S. at 678 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. at 555).

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. § 1491(a)(1) (2012). 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. Navajo Nation, 556 U.S. 287,

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

Cnty.. Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied

(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (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 Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United 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."); Golden

v. United States, 118 Fed. Cl. 764, 768 (2014). 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

9

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. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in

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

Clapp v. United States, 127 Ct. Cl. 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 1007.

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." .!!;L; see also [United States v. JTestan, 424 U.S.

[392,] 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 Power Generation, 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.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400

(1976)); 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. Navajo

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

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

premised on other sources of law (e.g., statutes or contracts)."). '"If 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., Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty .. 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).

Pursuant to 28 U.S.C. § 2501 (2012), suits against the United States are subject

to a six-year statute of limitations. According to 28 U.S.C. § 2501:

10

Every claim of which the United States Court of Federal Claims has

jurisdiction shall be barred unless the petition thereon is filed within six years

after such claim first accrues . ... A petition on the cla im of a person under

legal disability or beyond the seas at the time the claim accrues may be filed

within three years after the disability ceases.

lit. 'The six-year statute of limitations set forth in section 2501 is a jurisdictional

requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.

United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh'g en bane denied (Fed. Cir. 2006),

affd, 552 U.S. 130 (2008); Banks v. United States, 102 Fed. Cl. 115, 127 (2011) (citing

U.S.C. § 2501 ). The United States Court of Appeals for the Federal Circuit has indicated

that a claim accrues '""when all events have occurred to fix the Government's alleged

liability, entitling the claimant to demand payment and sue here for his money.""' San

Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting

Samish Indian Nation v. United States, 419 F.3d 1355, 1369 (Fed. Cir. 2005) (quoting

Martinez v. United States, 333 F.3d 1295, 1303 (Fed . Cir. 2003), cert. denied, 540 U.S.

1177 (2004))), reh'g en bane denied (Fed. Cir. 2011 ); see also FloorPro, Inc. v. United

States, 680 F.3d 1377, 1381 (Fed. Cir. 2012); Martinez v. United States, 333 F.3d at

1303) ("A cause of action cognizable in a Tucker Act suit accrues as soon as all events

have occurred that are necessary to enable the plaintiff to bring suit, i.e., when 'all events

have occurred to fix the Government's alleged liability, entitling the cla imant to demand

payment and sue here for his money."' (quoting Nager Elec. Co. v. United States, 177 Ct.

CL 234, 240, 368 F.2d 847, 851 (1966), motion denied, 184 Ct. Cl. 390, 396 F.2d 977

(1968)); Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.

1988); see also Brizuela v. United States, 103 Fed. Cl. 635, 639, aff'd, 492 F. App'x 97

(Fed. Cir. 2012), cert. denied 133 S. Ct. 1645 (2013). A Judge of the United States Court

of Federal Claims has noted that:

Jt is well-established that a claim accrues under section 2501 "when 'all

events have occurred to fix the Government's alleged liability, entitling the

claimant to demand payment and sue here for his money.'" Martinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane), cert. denied,

540 U.S. 1177 (2004) (quoting Nager Elec. Co. v. United States, 368 F.2d

847, 851 (Ct. Cl. 1966)); see also Samish [Indian Nation v. United States),

419 F.3d [1355,] 1369 [(2005)). Because, as noted, this requirement is

jurisdictional, plaintiff bears the burden of demonstrating that its claims were

timely. See Alder Terrace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed .

Cir. 1998); Entines v. United States , 39 Fed . Cl. 673, 678 (1997) , affd , 185

F.3d 881 (Fed. Cir.) , cert. denied , 526 U.S. 111 7 (1999); see also John R.

Sand & Gravel Co. v. United States, 457 F.3d 1345, 1362 (Fed. Cir. 2006)

(Newman, J., dissenting); Reynolds v. Army & Air Force Exch. Serv., 846

F.2d 746, 748 (Fed. Cir. 1988).

Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), aff'd, 465

F. App'x 952 (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United States,

97 Fed. Cl. at 209 (2011) (citing Alder Terrace. Inc. v. United States, 161F.3d1372, 1377

(Fed. Cir. 1998)). Accrual of a claim is "'determined under an objective standard"' and

11

plaintiff does not have to possess actual knowledge of all the relevant facts in order for a

cause of action to accrue. FloorPro. Inc. v. United States, 680 F.3d at 1381 (quoting Fallini

v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied , 517 U.S. 1243

(1996)).

Like other claims brought under the Tucker Act, takings claims typically accrue

"'only when all the events which fix the government's alleged liability have occurred and

the plaintiff was or should have been aware of their existence."' Casitas Mun. Water Dist.

v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (emphasis in original) (quoting

Hopland Band of Pomo Indians v. United States, 855 F.2d at 1577); see also Navajo

Nation v. United States, 631 F.3d 1368, 1273-74 (Fed. Cir. 2011) ("In general, a takings

'claim first accrues when all the events have occurred which fix the alleged liability of the

[government] and entitle the plaintiff to institute an action."' (quoting Hopland Band of

Pomo Indians v. United States, 855 F.2d at 1577 (citing Fallini v. United States, 56 F.3d

at 1380); John R. Sand & Gravel Co. v. United States, 457 F.3d at 1355-56. '"Therefore,

a claim under the Fifth Amendment accrues when [the] taking action occurs."' Navajo

Nation v. United States, 631 F.3d at 1273-74 (brackets in original) (quoting Goodrich v .

United States, 434 F.3d 1329, 1333 (Fed. Cir.), reh'g denied (Fed. Cir. 2006) (citations

and internal quotation marks omitted)). For a physical taking , the act that causes the

taking also causes the accrual of a takings claim. See Casitas Mun. Water Dist. v. United

States, 708 F.3d at 1359 (citing Ingrum v. United States, 560 F.3d 1311 , 1314 (Fed . Cir.)

("[A] claim alleging a Fifth Amendment taking accrues when the act that constitutes the

taking occurs. "), cert. denied, 558 U.S. 878 (2009)).

Defendant moves to dismiss plaintiff's amended complaint pursuant to RCFC

12(b)( 1) for lack of jurisdiction and, in the alternative, RC FC 12(b)(6) for failure to state a

claim for which relief may be granted. Defendant argues that plaintiffs first claim accrued

no later than 1806, when Congress allegedly passed a statute acknowledging pre-existing

property rights in the newly-created State of Tennessee, including, by implication, the

property rights of General Sevier at issue in plaintiff's first claim. Defendant contends that

plaintiffs second claim accrued no later than 1814, when Congress allegedly passed an

Act providing for the indemnification of property owners in the Mississippi Territory

dispossessed by the cession of land by the State of Georgia to the United States.

Defendant argues that plaintiff's third claim accrued no later than 1824, when Congress

allegedly passed an Act confirming the Georgia legislature's 1786 grant of 5,000 acres to

General Sevier, with the proviso that the claim be satisfied from a trust established in

1803. Defendant argues plaintiffs fourth cla im accrued no later than 1793 because plaintiff

alleges General Sevier "was owed military pay in the amount of $22 ,817 for services

provided in 1793." Finally, defendant construes the referen ce in plaintiffs appendix to an

1841 bill, under which claims for compensation allegedly cou Id have been brought by the

heirs of General Sevier or John Sevier, Jr., as a fifth claim, which, defendant asserts,

accrued no later than 1841 . Citing 28 U.S.C. § 2501 , defendant argues that "Congress

has requ ired persons seeking to recover under the Tucker Act to file suit in th is Court

within six years of the date when the claim accrued," and that because none of plaintiff's

claims accrued later than 1841, they are untimely and must be dismissed for lack of

jurisdiction. Further, according to defendant, even if plaintiff's complaint were not

dismissed for its jurisdictional defects, it must be dismissed under RCFC 12(b)(6) for

12

failure to state a claim for which relief may be granted, because plaintiff's complaint

"contains no allegations to support a finding that the estate of General Sevier has

remained open for the 200 years since General Sevier's death" and it "also contains no

allegations to support a finding that Mr. Cordova has been properly appointed the

administrator of such an estate."

Plaintiff's Response to Defendant's Motion to Dismiss asserts, although without

support, that "28 U.S.C. 2501 does not apply in this matter as the U.S. Congress has

referred the matter and that a ruling was made adversely against the Defendant. It is

contended that the case was appropriated for payment, yet merely indefinitely postponed

by this Court." Therefore, plaintiff argues, he "has already met the provisions of the Tucker

Act and previously of the Bowman Act of 1883." Plaintiff further asserts that "[t]he United

States Congress, on several occasions over that last 200 years, has made appropriations

for payment to the Sevier Estate," including, plaintiff alleges, the Deficiency Appropriation

Act of 1964, ch. XI, 78 Stat. 204, which, he claims, "did not recognize the amounts or

terms of the individual settlements and judgments funded but rather made a bulk

appropriation," in the amount of $12,831,443.00, '"[t]or payment of claims as settled and

determined by departments and agencies in accord with law, and judgments rendered

against the United States by the United States Court of Claims and United States district

courts . . . ."' There is no indication in the record, however, that any appropriation

regarding the Sevier claims was ever passed by Congress following the Congressional

Reference Report by the Court of Claims, and plaintiff has provided none.

With respect to defendant's allegation that Mr. Cordova has failed to establish that

the estates of General Sevier and John Sevier, Jr. remain open, or that he is the duly-

appointed administrator thereof, plaintiff asserts that "Mr. Cordova, a direct descendant

of Gen. Sevier, made application [to] the Sevier County Court in Tennessee in 2012 to

become the Estate's Administrator, which Mr. Cordova can document." The court notes,

however, that plaintiff has not provided the referenced documentation, nor did he provide

any information regarding the status of his 2012 application, including whether or not the

application ever was acted upon. Plaintiff further states in his conclusion that "the

Complainant believes that it has proven and can submit additional evidence that this court

has jurisdiction," but that "the Complainant has requested additional documents pertinent

to this case from agencies of the Defendant, which have not yet been received." Since

the filing of the plaintiff's complaint in this court, however, plaintiff has had ample time to

produce additional documents and has not done so.

In its reply brief, defendant asserts that "[i]n his response, Mr. Cordova does not

challenge (or mention) the accrual date for any of these five claims" identified in

defendant's motion to dismiss, which, defendant alleges, means that "our calculations of

the accrual dates are uncontested." Defendant alleges that plaintiff's reliance on the

findings of fact issued by the United States Court of Claims in 1910 "lends no support to

Mr. Cordova's arguments for jurisdiction to consider the claims in the complaint" because,

although defendant concedes that "Congress created special jurisdiction for the Court of

Claims" to consider the claims of General Sevier's heirs, "by the express terms of that

grant of jurisdiction ... jurisdiction expired with the issuance of the Court of Claims report

in 1910, and the elapsed time permitted for appeal." As for plaintiff's assertion that he

13

applied in 2012 to be appointed as the administrator of General Sevier's estate, defendant

argues that "this does not prove that General John Sevier's estate was established there,

or that such estate has remained open for 200 years, or that Mr. Cordova has been

appointed as the Estate Administrator of such an open estate." (emphasis in original).

With respect to plaintiffs apparent claim that the Court of Claims issued a judgment in

favor of the heirs of General Sevier's estate in 1910, defendant retorts that, "[w]ith all due

respect, Mr. Cordova misunderstands the report issued by the Court of Claims in 1910."

Defendant concludes after discussing the 1910 fact-finding report, "the Court of Claims

did not award, or recommend the award, of any money to the heirs of General Sevier or

his son," meaning "ft]here is no judgment for Mr. Cordova to seek to enforce."

Plaintiffs argument that the statute of limitations contained in 28 U.S.C. § 2501

does not apply to the present case because it was referred to the court by Congress and

then "indefinitely postponed" also is incorrect. "Any bill, except a bill for a pension, may

be referred by either House of Congress to the chief judge of the United States Court of

Federal Claims for a report in conformity with [28 U.S.C. §] 2509." 28 U.S.C. § 1492

(2012). After a bill is referred, the Court of Federal Claims makes findings offact regarding

the referred bill along with "conclusions sufficient to inform Congress whether the demand

is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due

from the United States to the claimant." 28 U.S.C. § 2509(c) (2012). These findings and

conclusions are then submitted in a report to the appropriate House of Congress. Id. §

2509(e). Essentially the same process was followed by the Court of Claims in 1910. See

Tucker Act of 1887, ch. 359, § 13-14, 24 Stat. 505, 507-08 (1887). None of the

conclusions drawn in such reports are subject to judicial review. See id. § 2509(b).

"Inasmuch as the conclusions are recommendations, as distinguished from judicial

decisions, the court-made rules of stare decisis and res judicata do not apply.

Congressional reference cases have no binding value as precedent." Paul v. United

States, 20 Cl. Ct 236, 266, affd, 21 Cl. Ct. 758 (1990). As noted above, the Humphreys

claims were twice referred to the Court of Claims, first in 1905 and then in 1908. S. Rep.

68-991 at 1-2 (quoting H.R. 18921, 58th Cong. (1905); H.R. 17355, 60th Cong. (1908)).

After the Court of Claims made its findings in Humphreys and submitted them to the

House of Representatives in 1913, see H.R. Doc. No. 63-131 at 1, the role of the Court

of Claims was complete and the court's jurisdiction to hearthe Humphreys claims referred

by Congress expired. The court's findings were only recommendations, and the ultimate

decision of Congress about whether to award the Humphreys plaintiff compensation

rested with Congress alone. Congress' decision in 1925 not to do so did not toll the

running of the statute of limitations for the claims involved. Moreover, as noted above,

there is no evidence in the record that Congress ever appropriated any money directed

to compensate for plaintiff's claims.

For plaintiffs claims to be timely, pursuant to 28 U.S.C. § 2501, each claim must

have accrued no earlier than November 18, 2008, or six years prior to November 18,

2014, the date on which Mr. Cordova filed his initial complaint in this court. As defendant

argues, each of Mr. Cordova's four claims accrued considerably earlier than that date.

Plaintiff's first claim involves lands allegedly belonging to General Sevier and John Sevier,

Jr. in Tennessee that were allegedly "ceded" by the federal government to the Cherokee

Nation in 1785 and/or 1791. Construed liberally, plaintiff alleges a physical taking of

14

General Sevier and John Sevier Jr.'s lands by the United States. The statute of limitations,

therefore, began running the moment the land was taken, that is in 1791, at the latest.

See Navajo Nation v. United States, 631 F.3d at 1273-74 ('"[A] claim under the Fifth

Amendment accrues when [the] taking action occurs."' (brackets in original) (quoting

Goodrich v. United States, 434 F.3d at 1333). Plaintiff's first takings claim, thus, is

untimely by at least 217 years. The 1925 Senate Report included in the appendix to

plaintiff's complaint also alleged that several federal statutes, the last of which was

enacted in 1841, provided General Sevier's heirs the opportunity to receive compensation

for the lands allegedly taken from General Sevier and John Sevier, Jr. See S. Report 68-

991, at 2-3. These are the statutes defendant construed as constituting a fifth claim by

defendant. There is, however, no indication in plaintiff's pleadings or the exhibits in the

record before the court that the claims of General Sevier and his heirs would not have

accrued immediately after the enactment of such statutes. Any claims plaintiff might have

had under such statutes are, therefore, untimely by at least 167 years.

Plaintiff's second claim alleges that two federal statutes, passed in 1803 and 1814,

were intended to compensate landowners, such as General Sevier and James Sevier,

whose land had been ceded by the State of Georgia to the United States in order to

establish the Mississippi Territory. The 1803 statute allegedly established a procedure by

which claims for compensation could be made, while the 1814 statute allegedly provided

for "indemnification of certain claimants of public lands in the Mississippi Territory." The

statute of limitations for claims based on such money-mandating statutes, however,

begins running "'when "all events have occurred to fix the Government's alleged liability,

entitling the claimant to demand payment and sue here for [its] money.""' Klamath Tribe

Claims Comm. v. United States, 97 Fed. Cl. at 209 (brackets in original) (quoting Martinez

v. United States, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d at

851)). In the above-captioned case, plaintiff has not pied any facts showing why General

Sevier would not have been entitled to seek compensation or indemnification pursuant to

the 1803 and 1814 statutes, even if eligible, suggesting that the statute of limitations

began to run when these acts were passed. As such, plaintiff's claims under the two

statutes would be untimely by 205 and 194 years, respectively.

Plaintiff's third claim involves lands that were allegedly granted to the heirs of

General Sevier by Congress in 1824. Plaintiff alleges that "about 20 patents" apparently

covering this land were recorded in 1828, but that they were occupied by Native

Americans and that United States citizens were prevented from going on the lands by the

United States Army. Plaintiff also alleges that "there is no record in the Land Office at

Washington, D.C., Huntsville, Alabama, or Jackson, Mississippi to show that any patents

were delivered to any of the heirs of General John Sevier or to his administrators." The

legal basis for plaintiff's third claim is unclear. When construed liberally, however, plaintiff

appears to allege that the lands given to General Sevier in 1824 were subsequently taken

by the United States and given to the certain Native Americans beginning at least in 1828.

Again, because plaintiff's claim involves a taking, the statute of limitations began to run

when the taking occurred in 1828. Plaintiff's third claim is, therefore, untimely by

approximately 180 years.

15

Plaintiffs fourth claim involves the alleged payments owed General Sevier for his

military service: "the salary of General John Sevier of $94 per month from February 22,

1791 to February 22, 1794, and the sum due him for raising levies for the Northwestern

campaign." Plaintiff does not cite to the appropriate money-mandating regulation, statute,

or constitutional provision that would have entitled General Sevier or any of his heirs to

such payments. Nonetheless, plaintiff's claims would have accrued, at the latest, when

General Sevier's military service ended in 1794. Therefore, plaintiffs fourth claim is

untimely by at least 214 years. Given that each of plaintiff's four claims began to accrue

hundreds of years ago, they all must be dismissed for lack of jurisdiction pursuant to

RCFC 12{b)(1). The court, therefore, does not need to reach defendant's RCFC 12(b)(6)

arguments, or address why plaintiff has the legal right to bring claims on behalf of General

Sevier, his sons, or their estates, of which there is no evidence in the record.

Along with his original complaint, Mr. Cordova submitted an Application to Proceed

!D. Forma Pauperis, asserting that he is unable to pay the required filing fees, and

requesting waiver of court costs and fees. In his application, plaintiff states that he is

presently unemployed, and that his only source of income in the last twelve months has

been "VA DISABILITY," but he did not specify the amount received from this source,

despite the form's instruction to "describe each source of money and state the amount

received from each during the past twelve months." {capitalization in original). Plaintiff

further states that he does not own any cash, and has no money in checking, savings, or

any other accounts. Plaintiff responded "Yes" in response to the query "Do you own any

real estate, stocks, bonds, notes, automobiles or other valuable property (excluding

ordinary household furnishings and clothing)?" and estimated the value of his property in

San Antonio, Texas as $40,000.00. Finally, plaintiff indicates that he has no dependents

and is not currently a prisoner.

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

mandated by RCFC 77.1 (c) (2015), the statute at 28 U.S.C. § 1915 (2012) permits a court

to allow plaintiffs to file a complaint without payment of fees or security under certain

circumstances.7 The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is

7

A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding in

forma pauperis applications by non-prisoner litigants in federal courts, and have

concluded that Congress did not intend for non-prisoners to be barred from being able to

proceed in forma pauperis in federal court. See, tl,, Floyd v. United States Postal Serv.,

105 F.3d 274, 275-76 (6th Cir.), reh'g denied (6th Cir. 1997); Schagene v. United States,

37 Fed. Cl. 661, 663 ( 1997) (finding that it was not the intent of Congress to eliminate the

in forma pauperis right of access to federal courts of eligible, indigent, non-prisoners),

appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998); see also In re Prison Litigation Reform

Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (discussing how to administer in forma pauperis

rights to a non-prisoner, thereby acknowledging the rights of non-prisoners to apply for in

forma pauperi~ status); Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996) (using "sic"

following the word "prisoner" in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use

of that word was too narrow); Smith v. United States, 113 Fed. Cl. 241, 243 (2013); Powell

v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that a "fair reading of the entire

section [28 U.S.C. § 1915(a)(1)] is that it is not limited to prisoner suits."). Moreover, 28

16

"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,~. Rowland v. Cal. Men's

Colony, Unit II Men's Advisory 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.

§ 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 Hayes v. United States,

71 Fed. Cl. 366, 369 (2006). Although Mr. Cordova's self-reported income and holdings

might qualify him for in forma pauperis relief, his complaint is being dismissed for lack of

jurisdiction for the reasons discussed above.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss for lack of subject matter

jurisdiction is hereby GRANTED. Plaintiff's complaint is DISMISSED. The allegations in

this claim, have been repeatedly reasserted by different individuals in General Sevier's

lineage. The claims were resolved by the 1910 Congressional Reference Report and the

Senate Report based on the same facts. Even if Mr. Cordova could demonstrate a legal

right to act on behalf of the Sevier estates, the issues raised by plaintiff's complaint should

not be revisited again in this court. The Clerk of the Court shall enter JUDGMENT

consistent with this Order dismissing plaintiff's complaint.

IT IS SO ORDERED.

.A a-&i~

__....MARIAN BLANK HORN

Judge

U.S.C. § 1915(a)(1) refers to both "person" and "prisoner." The word "person" is used

three times in the subsection, while the word "prisoner" is used only once. This court,

therefore, finds that the single use of the word "prisoner" in the language of 28 U.S.C. §

1915(a)( 1) was not intended to eliminate a non-prisoner from proceeding in federal court

in forma pauperis, provided that the civil litigant can demonstrate appropriate need. Any

other interpretation is inconsistent with the statutory scheme of 28 U.S.C. § 1915.

17