O'Diah v. United States

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FILED

Nos. l5-332C, l5-400C, l5-1000C (Consolidated)

(Filed: March 14,2016 | Not for Publication) MAR I4 2015

U.S. COURT OF

Keywords: Pro Se Complaint; TGEDERAL CLAIMS

AROR ARK O'DIAH, Claims; Constitutional Claims;

Student Loan Asreement

Plaintiff,

THE UNITED STATES OF AMERICA,

Defendant.

Aror Ark O'Diai, Brooklyn, NY,Plaintiff pro se.

Mollie L. Finnan,Trial Attomey, with whom were Brian A. Mizoguchi, Assistant

Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Acting Assistant

Attomey General, Commercial Litigation Branch, U.S. Department of Justice,

Washington, DC, for Defendant.

OPINION AND ORDER

Pro se Plaintiff Aror Ark O'Diah has filed three complaints in this Court. See

Compl., O'Diah v. United States, No 15-cv-332 (O'Diah D, ECF No. l; Compl., O'Diah

v. United States, No. 15-cv-400 (O'Diah II), ECF No. 1; Compl., O'Diah v. United

States, No. 15-cv-1000 (O'Diah IID, ECF No. l. The Court has consolidated these cases

because they share common issues of fact and law. See Consolidation Order, O'Diah I,

ECF No. 9. The govemment has moved to dismiss Mr. O'Diah's complaints under Rules

of the Court of Federal Claims (RCFC) l2(bX1) and 12(b)(6). See O'Diah I, ECF No. 5;

O'Diah II, ECF No. 5; O'Diah III, ECF No. 5. Mr. O'Diah has also moved for judgment

on the pleadings in one of his cases. See O'Diah II, ECF No. 6. For the reasons discussed

below, the Court concludes that it lacks jurisdiction over many of the claims Mr. O'Diah

has asserted in his complaints, and that Mr. O'Diah has failed to plausibly allege a right

to relief in any of his remaining claims. Therefore, the govemment's motions to dismiss

are GI{ANTED, and Mr. O'Diah's motion for judgment on the pleadings is DENIED as

moot.'

BACKGROUND,

The allegations in Mr. O'Diah's complaints are not clearly articulated. As best the

Court can tell, Mr. O'Diah appears to assert that he has been unlaufully arrested,

wrongfully convicted, and then beaten and exposed to dangerous chemicals, causing him

injury. See Compl., O'Diah I,at3,54; Compl., O'Diah II, at 3; Compl., O'Diah III, at

vii, 1-4, 7-10. Moreover, upon filing administrative complaints and/or lawsuits regarding

these wrongs, he alleges that he was targeted for murder. See Compl., O'Diah I , at34;

Compl., O'Diah II, at 3; Compl., O'Diah III, at 3. All these actions have allegedly been

carried out by a variety of govemment officers, governmental agencies, and private

entities. See Compl., O'Diah I, at l-3; Compl., O'Diah II, at 3-8; Compl., O'Diah III, at

24,7-9. Based on these allegations, he claims that he has been deprived of his rights

under the United States Constitution, including his rights under the first, fourth, fifth,

sixth, seventh, eighth, and fourteenth amendments, as well as of similar rights under the

New York State Constitution. See, Compl., O'Diah I, at 4; Compl., O'Diah II, at 7;

Compl., O'Diah III, at v.

He also alleges that private individuals have defamed and attempted to murder

him, Compl., O'Diah III, at 9; that his former attorneys are liable to him for malpractice,

id. at 9-10; and that certain items of his valuable property have been unlawfully

confiscated, id. at 10. Finally, he alleges that the United States violated the terms ofa

student loan repayment agreement it entered into with him in 2014. Id. at 3-5. According

to Mr. O'Diah, many of these acts have been motivated by bias against him based on his

race and national origin. E.s., id. at 1-2. He seeks damages of$132 billion and injunctive

relief. Id. at i.

DISCUSSION

I. Standards for Motion to Dismiss

A. RCFC r2(b)(r)

!4,

The Court of Federal Claims is a court of "limited jurisdiction." Marcum

LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). The court's primary grant of

jurisdiction is found in the Tucker Act, which gives the court jurisdiction "to render

' Mr. O'Diah has also filed motions to proceed in forma pauperis along with each of his

complaints. The Court hereby GRANTS those motions solely for purposes of deciding

the pending motions to dismiss.

2

The allegations described below are drawn from Mr. O'Diah's three complaints. Mr.

O'Diah has also filed many similar complaints in other jurisdictions. See. e.e., O'Diah v.

Port Auth. of N.Y. and N.J., No. 05-cv-5296 ,2012 WL I 13551, at * I (E.D.N.Y. Jan. I 1,

2012) (discussing six of Mr. O'Diah's previous cases).

2

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

or any Act of Congress or any regulation ofan executive department, or upon any express

or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort." 28 U.S.C. $ la9l(a)(1). The Tucker Act thus waives the

sovereign immunity of the United States to allow a suit for money damages. United

States v. Mitchell,463 U.S. 206,212 (1983). It does not, however, confer any substantive

rights on a plaintiff. United States v. Testan,424 U.5.392,398 (1976). Therefore, to

invoke the court's Tucker Act jurisdiction, a plaintiffmust identifr an independent source

ofa substantive right to money damages from the United States arising out ofa contract,

statute, regulation, or constitutional provision. Jan's Helicopter Serv., Inc. v. Fed.

Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008); see also Golden Pacific Bancom

v. United States, 15 F.3d 1066,1076 (Fed. Cir. 1994).

In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the Court

accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in

favor of the plaintiff. Trusted Inteqration. Inc. v. United States, 659 F.3d I 159, 1163

(Fed. Cir. 201 1). Further, it is well established that complaints filed by pro se plaintiffs

(as is this one) are held to "less stringent standards than formal pleadings drafted by

lawyers." Haines v. Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs

must persuade the court that jurisdictional requirements have been met. Bemard v. United

States, 59 Fed. Cl. 497, 499 (2004), af?d, 98 Fed. App'x 860 (Fed. Cir. 2004).

B. RCFC 126X6)

When considering a motion to dismiss for failure to state a claim under RCFC

12(bX6), the court accepts as true the complaint's undisputed factual allegations and

construes them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S.

662,678 (2009). The court also draws all reasonable inferences in favor ofthe non-

moving party. Sommers Oil Co. v. United States,24lF.3d1375,1378 (Fed. Cir.2001).

Nevertheless, the complaint's factual allegations "must be enough to raise a right to relief

above the speculative level." Bell Atlantic Com. v. Twombly, 550 U.S. 544,555 (2007).

In other words, the plaintiffs claim must be plausible on its face. Id. at 570; see also

Acceptance Ins. Cos.. Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). "A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678 (citing Twomblv, 550 U.S. at 556).

II. Application to Mr. O'Diah's Complaints

Applying these standards, the Court concludes that it lacks subject matter

jurisdiction over many of Mr. O'Diah's claims. To begin with, the Court of Federal

Claims has no jurisdiction to entertain claims against any defendant other than the United

States. See United States v. Sherwood,3l2 U.S. 584,588 (1941) ("Ulfthe relief sought is

against others than the United States the suit as to them must be ignored as beyond the

jurisdiction ofthe court."). Likewise, the Court of Federal Claims has no jurisdiction to

rule on claims arising under any state constitution. Kurt v. United States, 103 Fed. Cl.

384,388 (2012) (citing28 U.S.C. $ 1491). Accordincly, lv1r.O'Diah's claims against

parties other than the United States and those premised on violations of the New York

State Constitution must be dismissed.

The Court ofFederal Claims' jurisdiction also does not extend to criminal

matters. See Upshaw v. United States, 599 Fed. App'x 387, 388 (Fed. Cir. 2015) (per

curiam); Joshua v. United States, 17 F.3d 378,379 (Fed Cir. 1994). Nor does it extend to

any claims "sounding in tort." See 28 U.S.C. $ 1491(a)(l); see also Keene Com. v.

United States, 508 U.S. 200,214 (1993) ("[T]ort cases are outside the jurisdiction of the

Court of Federal Claims . . . ."); Brown v. United States, 105 F.3d 621,623 (Fed. Cir.

1997)). Accordingly, the Court cannot assert jurisdiction over Mr. O'Diah's claims

related to attempted murder, conspiracy, unlawful arrest and imprisonment, assault and

battery, exposure to hazardous materials, defamation, legal malpractice, and/or

conversion, as those claims can only be construed as alleging criminal violations or torts.

Moreover, the Court's jurisdiction over constitutional claims is limited to those

claims which are based on constitutional provisions that are "money-mandating." See

Brown, 105 F.3dat623; LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995).

Accordingly, the Court lacks jurisdiction over Mr. O'Diah's claims under the first, fourth,

sixth, seventh, eighth, and fourteenth amendments, as well as his claims under the fifth

amendment's Due Process Clause, as those provisions do not mandate the payment of

public tunds. See United States v. Connollv,716F.2d 882, 886-87 (Fed. Cir. 1983) (first

amendment); Brown, 105 F.3d at 623 (fourth amendment); Dupre v. United States,229

Ct. Cl.706,706 (1981) (per curiam) (fourth and sixth amendments); LeBlanc, 50 F.3d at

1028 (fifth amendment's Due Process clause and fourteenth amendment's Due Process

Clause); Golden Pacific Bancom, 15 F.3d at 1076 (fifth amendment's Due Process

Clause); Winston v. United States,465 F. App'x 960,961 (Fed. Cir. 2012) (sixth

amendment); Jaffer v. United States, No. 95-5127, 1995 WL 592017, at *2 (Fed. Cir.

Oct. 6 1995) (per curiam) (seventh amendment); Trafnv v. United States, 503 F.3d 1339,

1340 (Fed. Cir. 2007) (per curiam) (eighth amendment).1

3

Further, to the extent that Mr. O'Diah attempts to allege a claim for a taking without

just compensation under the fifth amendment's Takings Clause (which provides that

"private property [shall not] be taken for public use without just compensation," see U.S.

Const. amend. V), he has failed to plausibly allege such a claim. Mr. O'Diah has alleged

that certain items of his valuable properly (including cars, money, and jewelry) have been

"unlawfully seized without due process," "confiscated without [a] reasonable basis in law

and fact," or "illegally confiscated." See Compl., O'Diah II, at 13. But only an

"authorized" taking can form the basis of a well-pled takings claim. Del-Rio Drilline

Proerams. Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998). That is, an alleged

taking must be "chargeable to the govemment" rather than "committed by a govemment

agent acting ultra vires." Id. It follows that, to the extent a plaintiff alleges (as does Mr.

O'Diah) that the govemment's action "constituted a taking because the action was

unlawful," the plaintiff fails to state a claim. See Star Int'l Co. v. United States, 106 Fed.

Cl. 50,70 (2012) (citing Lion Raisins. Inc. v. United States,416 F.3d 1356, 1369 (Fed.

Cir.2005)).

A

Finally, Mr. O'Diah has failed to state a claim regarding the alleged student loan

repayment agreement with the United States. To state a claim for the breach of a contract

with the United States, a plaintiff must plausibly allege the existence of a contract with

the United States, the breach ofa duty arising out of that contract, and damages resulting

from the breach. See Kan-Almaz v. United States,682 F.3d 1364,1368 (Fed. Cir. 2012);

Bell/Hearv v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014).Mr. O'Diah appears

to allege that he entered a student loan repayment agreement with the United States under

which he was to pay ten dollars each month to the Department of Education (DOE); but

that he was subsequently required to pay ten dollars each month to a different agency (the

Pennsylvania Higher Education Assistance Agency), as well as five dollars each month to

the DOE. See Compl., O'Diah III, at 4. Moreover, he alleges that the DOE disbursed

funds to Temple University against his wishes, and that the agency is now demanding

repayment ofthose funds. See id. at 4-5.

In the first place, Mr. O'Diah has not adequately alleged the existence ofa

contract with the United States. See Kan-Almaz, 682 F.3d at 1368 (to allege the existence

ofa contract with the United States, a plaintiff must allege "(1) mutuality ofintent, (2)

consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the

part of the govemment's representative to bind the govemment in contract" (quoting

Hanlin v. United States,316 F.3d 1325,1328 (Fed. Cir. 2003))). In addition, Mr.

O'Diah's allegations do not describe any ofthe terms ofthe purported contract. Thus, the

Court is unable to ascertain the nature ofthe alleged contract or the duties that might arise

from it. Finally, Mr. O'Diah's allegations do not explain how the United States has

breached the supposed contract or how any such breach has damaged Mr. O'Diah.

Accordingly, Mr. O'Diah has failed to plausibly allege a claim for the breach of a

contract with the United States.

CONCLUSION

For the reasons discussed above, the govemment's motions to dismiss are hereby

GRANTED. Mr. O'Diah's claims related to his purported student loan agreement with

the United States are dismissed with prejudice; his remaining claims are dismissed

without prejudice. In addition, Mr. O'Diah's motion for judgment on the pleadings is

hereby DENIED. The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

u //,(-

ELAINE D. KAPLAN

Judge