El v. United States

ORIGI[{At

llntbt@nitt! 9itatts @ourt otftlprul @lufins

No. 15-388G

Fifed: December2,2015 FILED

DEC - 2 ?015

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U,S. COURT OF

MESSIAH MIZEL, EX REL. KAMAL- FEDERAL CLAIMS

JALAL: JAMES,

Plaintiff,

Pro Se Plaintiff; In Forma PauPeris;

v, Lack of Subject Matter Jurisdiction.

UNITED STATES,

Defendant.

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Messiah Aziz El, Ex Rel' Kamal'Jalal: James, pro se, Freehold, NJ'

Albert s. larossi, Trial Attorney, commercial Litigation Branch, civil Division,

united States Department of Justice, washington, D.C., for defendant. with him were

Robert E. Kirschman, Jr., Director, commercial Litigation Branch, and Benjamin c.

Mizer, Principal Deputy Assistant Attorney General, civil Division, washington, D.C.

ORDER

HORN. J.

FINDINGS OF FACT

filed a complaint2

PIq se plaintiff Messiah Aziz El, "Ex. Rel Kamal-Jalal: James"r

in Court of Federal Claims alleging "deprivation of Petitioner's

the

-UniiJd States

1 The caption for the complaint filed in this court on April 17,2015lists "Messiah Aziz El'

Ex. Rel. Kamal-Jalal: James" as the plaintiff. In the first line of the complaint, however,

;Crystat Gabri El, Ex. Rel Crystal-Gabrielle: Hawkins'' is also indicated as a plaintiff' The

United

onty signature on the complaintwas Messiah Aziz El. Rule 11(a) of the Rules of.the

StaleJCourt of Federat Claims (RCFC) (2015) requires every pleading be signed by a

farty personally if the party is unrepresented, G1ve1 that neither "Kamal James" nor

lCry"tbf GaOri El," if they are two additional individuals, signed the.complaint, this court

does not consider eithei as a plaintiff in the above captioned case because they did not

comply with RCFC 1 1 (a). Accordingly, Mr. El is considered the only plaintiff in this

action.

ln its submissions to the court, defe-ndant refers to plaintiff as "Kamal James," which may

be his legal name.

2 Plaintiff has filed at least two other complaints in federal court. In March 2013, Mr' El

fileJ a complaint in the United States District court for the District of New Jersey, which

Constitutional and Internationally secured rights without due process of law" by "the

United States through action by the UNITED STATES DISTRICT COURT under U.S.C.

18(United States Code), prohibiting, life, liberty and property of the Petitioner."3

In his complaint, plaintiff alleges that he "is a natural person, in propria persona sui

juris, under the laws of the indigenous community Washitaw Dedugdahmoundya Nation

State and under the laws of the United States of America Republic," and thus he is

"entitled to all protections enumerated within the United States Constitution. Specifically

the Fifth Amendment right of due process, to be heard before a court of competent

jurisdiction. . . ." As relief, plaintiff seeks "an award of due process under the Fifth

Amendment to the Constitution of the United States for the rights reserved by the

Petitioner" and "an award of monetary damages under the Fifth Amendment of the

Constitution of the United States."

Defendant asserts that, in February 2015, plaintiff was convicted of conspiracy to

defraud the United States in violation of 18 U.S.C. S 286 (2012), multiple counts of

submitting false, fictitious, and fraudulent claims to the United States, and three counts of

mail fraud in violation of 18 U.S.C. S 1341 (2012) in the United States District Courtfor

the District of New Jersey. Plaintiff does not contest these assertions. The allegations

contained in the complaint currently before this court appear to arise from the criminal

proceedings involving plaintiffs arrest and eventual conviction. Plaintiff is currently

incarcerated in the Monmouth County Correctional Institution in Freehold, New Jersey.

Plaintiff's confused and disorganized complaint alleges that the United States

violated his Fifth Amendment right to due process by improperly exercising personal and

subject matter jurisdiction over him. Plaintiff argues that the United States District Court

of the District of New Jersey did not have jurisdiction for several reasons, including that

the judges were "defacto" judges "operating under color of law," the United States

Supreme Court is the only court with original ju risd iction when the United States is a party,

and, "[n]o injured party has been produced and therefore no lawful claim under common-

law exists." Plaintiff further argues that his due process rights were violated when he was

arrested by agents "acting on a warrant issued by an un-constitutional Judge

Defacto. . ."4 Plaintiff argues that the 'UNITED STATES DISTRICT COURT has entered

was dismissed for failure to state a claim upon which relief may be granted. See El v.

New Jersev, 2:13-cv-01431 (D.N.J. 2013). Shortly thereafter, Mr. El filed another

complaint in the same court, which also was dismissed for failure to state a claim upon

which relief may be granted. See El v. New Jersev, 2:13-cv-03481 (D.N.J. 2013).

3 Capitalization, grammar, punctuation, emphasis, and other errors are quoted in this

Order as they appear in plaintiffs submissions.

a To the extent that plaintiff is asserting a claim for false arrest, such a claim alleges a

tort, and this court lacks jurisdiction over such claims. See Keene Coro. v. United States,

5OB U.S. 200,214 (1993); Rick's Mushroom Serv., Inc. v. United States,521 F.3d 1338,

1343 (Fed. Cir. 2008) reh'o and reh'q en banc denied (Fed. Cir. 2004), cert. denied' 545

U.S. 1127 (2005); Gadd v. United States,232F.3d 915 (Fed. Cir. 2000); Brown v' United

sham pleas of not guilty on behalf of the Petitioner without authorization, trial has

commenced and Petitioner has been found guilty through colorable proceedings."

Plaintiff contends that he,

objected to the Personal and Subject Matter jurisdiction of the UNITED STATES

DISTRICT COURT on several occasions throughout these colorable proceedings

and all constitutional claims, statements and arguments have been ignored or

denied by (defacto) Judges. . .

Plaintiff contends that "[t]he UNITED STATES DISTRICT COURT officers, have all

intentions on proceeding under color law and disregarding their obligations to the United

States Constitution of the Republic and the Petitioner's rights that are secured therein."

Plaintiff also alleges that "Defendant has failed to provide the requested oaths of office"

that plaintiff requested defendant produce.

As relief, plaintiff seeks a judgment from this court:

1. Declaring that the actions of the Defendant in exercising authority under 28

U.S.C. 3231 to prohibit all beneficial uses of the "personal rights" constitute a

taking of private property for public use in violation of Petitioner's rights under

the Fifth Amendment to the United States Constitution of the Republic.

2. Declaring that the foregoing actions of Defendant under 28 U.S.C. 3231

constitute a deprivation of Petitioner's property without due process of law in

violation of Petitioner's rights under the Fifth Amendment to the United States

Constitution;

3. awarding Petitioner the amount of $250,000 (silver specie or currency of the

UNITED STATES), representing just compensation for these actions of

Defendant, as well as reasonable attorney fees, expenses, and all cost ofthese

proceedings...

Defendant filed a motion to dismiss for lack of subject matter jurisdiction on June

26,2015, to which Plaintiff responded, followed by Defendant filing a reply in support of

its motion and a further response by plaintiff.

DlscussloN

The court recognizes that plaintiff is proceeding pro se, without the assistance of

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

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

pleadings. See Haines v. Kerner, 404 U.S. 5'19, 520-21 (requiring that allegations

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

States, 105 F.3d 621, 623 (Fed. Cir.) reh'q denied (Fed. Cir. 1997). The Tucker Act

specifically excludes actions sounding in tort from this court's jurisdiction. See 28 U.S.C.

S 14e1(aX1) (2012).

drafted by lawyers"), reh'q denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551

U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429

U.S. 97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Mafthews v. United States, 750

F.3d 1320, 1322 (Fed. Cir.2014); Diamond v. United States, 115 Fed. Cl. 516, 524, 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 plaintiffl has not spelled

out in his [or her] pleading.""'Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)

(alterations in original) (quoting Scoqin v. United States,33 Fed. Cl.2B5,293 (1995)

(quoting Clark v. Nat'l Travelers Life lns. Co. , 5'18 F .2d 1 167, 1 169 (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. C|.249,253 (2007). "While 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 Huohes 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'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v.

United States, 119 Fed. Cl. 133, 139 (2014) ("lwlhile the court may excuse ambiguities

in a pro se plaintiffls 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)).

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 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, 562 U.S. 428 (2011l'; 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 sponte 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 subjeclmatter jurisdiction exists, even when no party challenges it."

(citing &Ug-hr-Y-&-H-Q.eIS., 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. Pay Less Druq Stores N.W.. Inc., 918 F 2d

160, 161 (Fed. Cir. 1990)); View Enq'o. 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."). "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 Reo'l Med. Ctr., 133 S. Ct.817,824 (2013); see also

Arbauqh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal court lacks subjecf

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. Cr.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 Arbauqh v. Y & H Corp.,

546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United States, 521 F.3d at 1346

("[A]ny party may challenge, orthe court may raise sua sponte, subject matter jurisdiction

at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506; &,lde[y.,--U-nj!edsta!S,

379 F.3d 1344, 1354 (Fed. Cir.); and Fannino. Phillips & Molnar v. West, 160 F.3d 717,

720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. CL71,76, appeal dismissed,425

F. App'x 902 (Fed. Cr. 2011). ln 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., lnc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369 (Fed. Cir.)

(citing Textile Prods.. lnc. v. Mead Corp., 134 F.3d 1481,1485 (Fed. Cir.), reh'o denied

and en banc suqqestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'q

and reh'q en banc denied (Fed. Cir. 2004), cert. qranted in pa1! sub. nom Lab. Coro. of

Am. Holdinqs v. Metabolite Labs., lnc., 546 U.S. 975 (2005), cert dismissed as

improvidentlv qranted, 548 U.S. 124 (2006); see also Avid ldentification Svs., Inc. v.

Crvstal lmport 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'q and reh'q en banc denied, 6'|4 F.3d 1330 (Fed' Cir.

2010), cert. denied, 131 S. Ct.909 (2011).

Pursuantto RCFC 8(aX1) and the Federal Rules of civil Procedure, a plaintiff need

only state in the complaint "a short and plain statement of the grounds for the court's

jurisdiction," and "a short and plain statement of the claim showing that the pleader is

entitled to relief." RCFC 8(aX1), (2) (2015): Fed. R. Civ. P. B(a)(1)' (2) (2015); see also

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

sn+, sss-sl ,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'o denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.

United States,97 Fed. C;.203,2O8(2011); Gonzalez-McCaullev lnv. Grp., lnc. v. United

states, 93 Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted

irfeiences of fact do not suffice to support a claim." Bradlev v. Chiron Corp., 136 F.3d

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

n.9 (Fed. Cir. 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 plaintiffs 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. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed.

Cir.;, ien;q denieO (Fed. Cir. 2014). As stated in Ashcroft v. lqbal, "[a] pleading,that offers

'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will

not do.' 550 u.s. at 555. Nor does a complaint suffice if it tenders'naked assertion[s]'

devoid of 'further factual enhancement."' Ashcroft v. lqbal, 556 U S. at 678 (quoting Egll

Atl. Corp. v. Twomblv, 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. S 1a91(aX1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navaio Nation, 556 U.S. 287, 289-90 (2009);

United States v. Mitchell, 463 U.S. 206,216 (1983); see also Greenlee Cntv., Ariz. v.

United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en bancdenied (Fed. Cir.

2007), cert. denied, 552 U.S. 11a2 QO08); 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.. lnc. v.

United States, 521 F.3d at 1343 ("[P]laintiff must . . . identify a substantive source of law

that creates the right to recovery of money damages against the United States."); Golden

v. United States, 118 Fed. Cl.764,768 (2014). In Ontario Power Generation, lnc. 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."

Eastoort S.S. lCorp. v. United States, 178 Ct. Cl. 599,605-06'1 372F.2d

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

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

Clappv. 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." ld.; see also lUnited States v. lTestan, 424 U.S.

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 refened to as claims brought under a "money-mandating"

statute.

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

see alsoTwp. of Saddle Brookv. United States, 104 Fed. Cl. 101, 106(2012)'

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon "'can fairly be

interpreted as mandating compensation by the Federal Government."' United States v.

Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U 5. 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. Navaio

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

a1 iurisdictional 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 lurisdiction."' Jan's Helicopter serv., lnc. v. Fed.

AviationAdmin.,52S F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee.Cjtlv'-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 TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553' 565-66 (2009).

In his complaint, plaintiff asserted violations of his constitutional right to due

orocess under the Fifth Amendment to the United States Constitution. Plaintiff alleges

that this court has jurisdiction to hear his claims pursuant to the Tucker Act, 28 U.S.C.

s 1491(a). Defendant argues, however, that "the Tucker Act does not, by itself, create a

right to money damages against the united states," and that "the substantive right to

money damages must extend from the constitutional provision, statute, contract, or

regulation giving rise to the claim." Defendant contends that plaintiff "has failed to plead

a iubstantive source of law that creates a right to recover money damages from the

Government," because it is well established that the Due Process clause of the Fifth

Amendment does not mandate the payment of money, and, thus, does not provide a

cause of action under the Tucker Act.

7

Regarding plaintiff's claim for due process under the Fifth Amendment, the Federal

Circuit has held that this court does not possess jurisdiction to consider claims arising

under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Smith v.

United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The law is well settled that the Due

Process clauses of both the Fifth and Fourteenth Amendments do not mandate the

payment of money and thus do not provide a cause of action under the Tucker Act." (citing

LeBlancv. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995))), cert. denied, 134S. Ct.

259 (20'13); In re United States,463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecausethe Due

Process Clause is not money-mandating, it may not provide the basis for jurisdiction

under the Tucker Act."), reh'q and reh'q en banc denied (Fed. Cir. 2006) cert. denied sub

nom. Scholl v. United States, 552 U.S. 9a0 (2007);Acadia Tech., Inc. & Global Win Tech.,

Ltd. v. United States,458 F.3d 1327,1334 (Fed. Cir. 2006); Crockerv. United States,

125 F.3d 1475, 1476 (Fed. Cir. 1997) (citing LeBlancv. United States,50 F.3d at 1028)

(no jurisdiction over a due process violation underthe Fifth and Fourteenth Amendments);

Collins v. United States, 67 F.3d 284,288 (Fed. Cir.) ("[T]he due process clause does not

obligate the government to pay money damages.'), rc"h-g denied (Fed. Cir. 1995);

Mullenberq v. United States,857 F.2d770,773 (Fed. Cir. 1988) (finding that the Due

Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v. United

States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment Due

Process clause does not include language mandating the payment of money damages);

Harperv. United States, 104 Fed. C|.287,291 n.5 (2012); Hampel v. United.States' 97

Fed. Cl. 235,238,aff'd,429 F. App'x 995 (Fed. Ctt.2011), cert. denied, 132 S. Ct. 1105

(2012); McCullouqh v. United States,76 Fed. Cl. 1,4 (2006), appeal dismissed,236 F.

App'x 615 (Fed. Cir.), reh'q denied (Fed. Cir.), cert. denied, 552 U S. 1050 (2007)

("[N]either the Fifth Amendment Due Process Clause nor the Privileges and

lmmunities Clause provides a basis for jurisdiction in this court because the Fifth

Amendment is not a source that mandates the payment of money to plaintiff."). Due

process claims "must be heard in District court." Kam-Almaz v. united states, 96 Fed.

ct. 84, 89 (2011) (citing Acadia Tech.. lnc. & Global win Tech., Ltd. v. united States, 458

F.3d at 1334), alf'd,682 F.3d 1364 (Fed. Cir.2012); see also Hampel v. United States,

97 Fed. Cl. at 238. Therefore, to the extent that plaintiff is attempting to allege Due

Process violations, no such cause of action can be brought in this court.

In addition to monetary damages, plaintiff asks this court to declare that,

[T]he actions of the Defendant in exercising authority under 28 U.S.C. 3231

io prohibit all beneficial uses of the "personal rights" constitute a taking of

private property for public use in violation of Petitioner's rights under the

Fifth Amendment to the United States Constitution of the Republic. . . [and]

that the foregoing actions of Defendant under 28 U S'C. 3231 constitute a

deprivation of Petitioner's property without due process of law in violation of

Petitioner's rights under the Fifth Amendment to the United States

Constitution. . .

Plaintiffls allegations in no way can be considered a taking in violation of the Fifth

Amendment to the United States Constitution. The Takings Clause of the Fifth

Amendment to the United States Constitution provides in pertinent part: "nor shall private

property be taken for public use without just compensation." U.S. Const. amend. V. The

purpose of this Fifth Amendment provision is to prevent the government from "'forcing

some people alone to bear public burdens which, in all fairness and justice, should be

borne by the public as a whole."' Palazzolo v. Rhode lsland, 533 U.S. 606, 618 (2001)

(quoting Armstronq v. United States, 364 U.S.40,49 (1960)); see also Penn Central

Transp. Co. v. Citv of New York, 438 U.S. 104,123-24, reh'q denied, 439 U.S. 883 (1978);

Linqle v. Chevron U.S.A. lnc., 544 U.S. 528, 536 (2005); E. Enters. v. Apfel, 524 U.S.

498,522 (1998); Rose Acre Farm. Inc. v. United States, 559 F.3d 1260,1266 (Fed. Cir.),

reh'q en bancdenied (Fed. Cir.2009), cert. denied, 130 S. Ct. 1501 (2010); Janowskvv.

United States, 133 F.3d 888,892 (Fed. Cir. 1998); Resource Invs., lnc. v. United States,

85 Fed. C'.447,469-70 (2009); Pumpellv v. Green Bav & Miss. Canal Co., 80 U.S. (13

Wall.) 166, 179 (1871\ (citing to principles which establish that "private property may be

taken for public uses when public necessity or utility requires" and that there is a "clear

principle of natural equity that the individual whose property is thus sacrificed must be

indemnified.").

A plaintiff must show that the government took a private property interest for public

use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.

Cir. 2004), cert. denied, 546 U.S. 81 1 (2005); Arbelaez v. United States, 94 Fed. Cl. 753,

762(2010):Gahaqanv.UnitedStates,72Fed. Cl. 157, 162(2006). "Theissueofwhether

a taking has occurred is a question of law based on factual underpinnings." Huntleiqh

USA Corp v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S.

1045 (2008) (citations omitted). The Federal Circuit has established a two-part test to

determine whether governmental actions amount to taking of private property under the

Fifth Amendment. See Klamath lrr. Dist. v. United States,635 F.3d 505,511 (Fed. Cir.

2011); Am. Pelaqic Fishinq Co. v. United States,379 F.3d 1363, 1372 (Fed. Cir.) (citing

M & J Coal Co. v. United States , 47 F .3d 1148, 1153-54 (Fed. Cir. 1995)), reh'q en banc

denied, (2004). A court first determines whether a plaintiff possesses a cognizable

property interest in the subject of the alleged taking. Then, the court must determine

whether the government action is a "'compensable taking of that property interest."'

Huntleiqh USA Corp v. United States, 525 F.3d at'1377 (quoting Am. Pelaqic Fishinq Co..

L.P. v. United States, 379 F.3d a| 1372).

A plaintiff alleging a taking must have a legally cognizable property interest, such

as the right of possession, use or disposal of the property. See Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419,435 (1982) (citing United States v. Gen. Motors

Corp., 323 U.S. 373 (19a5)); CRV Enters., lnc. v. United States,626 F.3d 1241,1249

(Fed. Cir. 2010), cert. denied, 131 S. Ct.2459 (201 1); KarukTribe of Cal. v. Ammon, 209

F.3d 1366, 1374-75 (Fed. Cir.), reh'o denied and en banc suqqestion denied (Fed. Cir.

2OO0), cert. denied, 532 U.S. 941 (2OO1). "|t is axiomatic that only persons with a valid

property interest at the time of the taking are entitled to compensation." Am. Pelaoic

Fishinq Co. v. United States, 379 F.3d al 1372 (quoting Wvatt v. United States , 27'l F .3d

1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077 (2002) and citing Cavin v. United

States, 956 F.2d 1131,1134 (Fed. Cir. 1992)). Therefore, "[i]f the claimant fails to

demonstrate the existence of a legally cognizable property interest, the courts [sic] task

is at an end." Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1372 (citing Maritrans

lnc. v. United States , 342 F.3d 1344, 1352 (Fed. Cir. 2003) and M & J Coal, 47 F.3d at

1 154). The court does not address the second step "without first identifying a cognizable

property interest." Air Peqasus of D.C., lnc. v. United States, 424 F.3d 1206, 1213 (Fed.

Cir.) (citing Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1381 and Conti v. United

States,291 F.3d 1334, 1340 (Fed. Cn.2002), cert. denied,537 U.S. 1112 (2003)), reh'o

denied and reh'o en banc denied (Fed. Cir. 2005). Only if there is to be a next step, "after

having identified a valid property interest, the court must determine whether the

governmental action at issue amounted to a compensable taking of that property interest."

Huntleiqh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelaqic Fishinq Co.

v. United States, 379 F.3d at 1372). To the extent plaintiff alleges that a violation of due

process is a taking, plaintiff has not alleged a property interest subject to a constitutional

taking claim nor has plaintiff alleged any cognizable taking.

Moreover, the Federal Circuit has explained that the Court of Federal Claims "does

not have general equity jurisdiction to grant injunctive relief." Shemonskv v. United

States, 21 5 F.3d 1340 (Fed. Cir. 1999) (upholding decision of the Court of Federal Claims

that the court's jurisdiction did not extend to injunctive or declaratory relief); see also Bank

of Guam v. United States, 578 F.3d 1318, 1331 (Fed. Cir.) reh'q and reh'q en banc denied

(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Martinez v. United States, 333 F'3d

1295, 1303 (Fed. Cir.2003); Choate v. United States,60 F.3d 840 (Fed. Cir. 1995)

(holding that "[t]he Tucker Act does not provide a means by which the Court of Federal

Claims may grant injunctive or declaratory relief where the suit does not involve a pre-

award protestorthe application of section 7428 of lhe Internal Revenue Code"). As stated

by 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

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

Claims.

Nat'l AirTraffic Controllers Ass'n v. United States, 160 F.3d 714,716-17 (Fed. Cir.1998);

see also United States v. Tohono O'Odham Nation,563 U.S.307 (2011) (The United

States Court of Federal Claims "has no general power to provide equitable relief against

the Government or its officers."). Moreover, in an action brought under 28 U.S.C.

"as an incident of and

S 1491(a), this court can only provide declaratory or injunctive relief

collateral to" a judgment for money damages. 28 U.S.C. S 1a92(a)(2); see also Tavlor v'

United states, 1 1 3 Fed. cl. 17 1, 173 (2013) (holding that the Tucker Act does not provide

independent jurisdiction over claims for injunctive relief in contractual dispute cases). For

example, in a case brought under the Tucker Act that did not involve a pre-award protest,

once the Court of Federal Claims determined that it did not have jurisdiction to hear a

plaintiffs claims for money damages, it necessarily followed that the court did not have

authority to hear that plaintiffs claims for injunctive relief. See Kanemoto v. Reno, 41

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F.3d 641, 645 (Fed. Cir. 1994); see also Tavlor v. United States, 113 Fed. Cl. at 173.

Accordingly, plaintiff s demands for declaratory relief are dismissed for lack of jurisdiction.

Plaintiff also contends in his complaint that the New Jersey District Court did not

have subject matter or personal jurisdiction over him. To the extent that plaintiff is alleging

that the New Jersey Diskict Court erred in exercising jurisdiction in the criminal action

brought against him, such allegations also do not establish jurisdiction in this court. The

Court of Federal Claims does not have authority to review decisions issued by judges of

the United States District Courts. See Vereda, LTDA. v. United States,271 F.3d 1367,

1375 (Fed. Cir.2001); Joshua v. United States, 17 F.3d 378,379 (Fed Cir. 1994); see

also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (holding that "this court does

not have jurisdiction over [plaintiffs] claims because the court may review neither criminal

matters, northe decisions of district courts.") (internal citations omitted); Mendes v. United

States, 88 Fed. Cl. 759,762, appeal dismissed ,375 F. App'x 4 (Fed. Cir' 2009); Huffed

v. united states, 87 Fed. Cl. 696, 702 (2009) (holding that the united states court of

feOerat Claims lacked jurisdiction over claims arising from the violation of a criminal

statute); Matthews v. United states,72 Fed. cl. 274,282 (finding that the court lacked

jurisdiction

-lr/cCullouqhto consider

plaintiffs criminal claims), recons. denied, 73 Fed. Cl. 524 (2006);

v. United States, 76 Fed. Cl. at 4 (finding that the court lacked jurisdiction to

consider platntiffb criminal claims). Therefore, this court lacks jurisdiction over any of

plaintiff s claims.

when filing his complaint, plaintiff also filed a motion to proceed .in forma pauperis.

According to hislomplaint, plaintiff is an inmate at the Monmouth County Correctional

Institutiori in Freehold, New Jersey. In order to provide access to this court to those who

cannot pay the filing fees mandated in this court by RCFC 77.1(c) (2015), the statute at

2g U.S.C.-S 1g1S(2012) permits a court to allow plaintiffs to file a complaint without

payment oifees or security, under specific circumstances. The standard in 28 U.S.C.

pay such fees or give security

b iglSt"ltr) for jn forma pauperis eligibility is "unable to

iherefor.'; Determination of what constitutes "unable to pay" or unable to "give security

paUperis is left to

therefor," and therefore, whether to allow a plaintiff to proceed in forma

the discretion of the presiding judge, based on the information submitted by the plaintiff

or plaintiffs. See, eg, Rowiand v. Cal. Men's Colonv, 506 U.S. 194' 217-18 (1993);

Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011)

when the person submitting a request to proceed i1 forma oauperig is a prisoner,

2g U.S.C. S 191 5iaX2) requires tnit ttre prisoner submit, along with the affidavit required

by subsection (aX1), a certified copy of:

[T]hetrustfundaccountstatement(orinstitutiona|equiva|ent)forthe

brisone, for the 6_month period immediately preceding the filing of the

complaint or notice of appeal, obtained from the appropriate official of each

prison at which the prisoner is or was confined

28 U.S.C. S 191 5(aX2); see also Matthews v. United states , 72 Fed. cl. at 277. In the

affidavit required under 28 U.S.C. S 1 915(aX1 ), a prisoner must further "state the nature

of the action, defense or appeal and affiant's belief that the person is entitled to redress."

11

28 U.S.C. S 1915(aXl). In the above-captioned case, plaintiff submitted the required

information and certification with his request to proceed in forma oauperis. Although Mr.

El's income level may qualifo him for in forma oauoeris status, as discussed above, his

complaint is being dismissed for lack of jurisdiction.

CONCLUSION

For all the reasons discussed above, plaintiffs complaint is DlsilllssED. The

Clerk of the Court shall enter JUDGMENT consistent with this Order.

IT IS SO ORDERED.

lLrral*

/MARIAN BLANK HORN

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