Hephzibah v. United States

J~A §elleral QJ:laims

No. 16-402C

(Filed August 25, 2016)

NOT FOR PUBLICATION

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* FILED

* AUG 2 5 2016

SYTERIA HEPHZIBAH, *

* U.S. COURT OF

FEDERAL CLAIMS

Plaintiff, *

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

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MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

The matter before the Court is defendant's motion to dismiss this case

pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims

(RCFC). For the reasons discussed below, defendant's motion is GRANTED due to

plaintiff's failure to state a claim within this court's subject-matter jurisdiction.

I. BACKGROUND

Plaintiff Syteria Hephzibah filed a complaint with this court on March 24,

2016. Plaintiff's pleadings address events arising from the government's

prosecution of criminal charges against her. See United States v. Hephzibah, M.D.

Fla. No. 3:15-cr-0016-MMH-MCR, Verdict, (April 27, 2016) ECF No. 141. Plaintiff

asks this court to order a district court to transfer a civil case to this venue, to

conduct an appellate review of an order of a district court, and to conduct an

administrative review of an order of a district court. Plaintiff also appears to

request that this court address some of the substantive issues underlying her

procedural requests and award plaintiff money damages for alleged violations of her

constitutional rights. Finally, plaintiff requests that this court enjoin a criminal

trial against her. The government moved to dismiss plaintiff's complaint for lack of

subject-matter jurisdiction.

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On February 6, 2015, federal agents arrested Ms. Hephzibah on suspicion of

attempting to obtain a United States passport by fraud in violation of 18 U.S.C.

§ 1542. Hephzibah, M.D. Fla. No. 3:15-cr-0016-MMH-MCR, ECF No. 1-2. The

government subsequently indicted her in the United States District Court for the

Middle District of Florida. Indictment (Feb. 18, 2015) ECF No. 8. On March 15,

2016, Ms. Hephzibah filed a civil case in that court asking it to enjoin the criminal

trial against her and to award her money damages for alleged violations of her

constitutional rights. Hephzibah v. De Leon, M.D. Fla. No. 3:16-cv-00248-TJC-

MCR, ECF No. 1-2. Plaintiff contended that during her arrest and subsequent

detention, agents subjected her to an unlawful search and seizure as well as falsely

imprisoned her. Id. Plaintiff argued these actions violated her First, Fourth, Fifth,

and Sixth Amendment rights and, pursuant to 18 U.S.C. §§ 241 and 242, claimed

money damages of $4,433,000. Id. On March 18, 2016, the district court dismissed

plaintiff's case for lack of subject-matter jurisdiction. Order (March 18, 2016) ECF

No. 5. On April 27, 2016, the jury in the criminal case against Ms. Hephzibah found

plaintiff guilty. Hephzibah, M.D. Fla. No. 3:15-cr-0016-MMH-MCR, ECF No. 141.

Plaintiff's appeal of the verdict is currently pending, and plaintiff has not yet been

sentenced. Minute Entry (August 15, 2016) ECF No. 180.

On March 24, 2016, Ms. Hephzibah filed three documents with this court,

which were filed together as her complaint. Compl. First, in a document titled

"Notice of Appeal," plaintiff asks this court to review the district court's dismissal of

her civil claims. Id. at 1-2. Plaintiff does not cite any statute or case law as the

basis for this claim. Id. Second, in a document titled "Petition to Transfer to Cure

Want of Jurisdiction and for Leave to File under RCFC Rule 3.1," plaintiff seems to

ask this court to order the district court to transfer her civil claims to this court. Id.

at 5-10. Plaintiff contends that our authority to issue such an order derives from

28 U.S.C. §§ 1631, 1491, 1292(d)(4)(B), and 2344, as well as RCFC 3.1. Id. Third, in

a document titled "Petition for Review of Administrative Action," Ms. Hephzibah

appears to ask this court to administratively review the district court's dismissal of

her claim based on the same statutes upon which her "Petition to Transfer" is

grounded. Id at 15-20.

The captions of the above three pleadings were addressed to the district

court. Id. at 1, 5, 15. Furthermore, plaintiff has previously submitted to that court

pleadings identical to the above documents and titled them "Petition to Transfer to

Cure Want of Jurisdiction and for Leave to File under RCFC Rule 3.1" and "Petition

for Review of Administrative Action." See Hephzibah, M.D. Fla. No. 3:16-cv-00248-

TJC-MCR, ECF No. 6, 9. By sending these pleadings to us, however, Ms.

Hephzibah appears to request action by this court. Compl. at 1-2, 5-10, 15-20.

Thus, the Court will construe the pleadings as directed to it.

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Plaintiff also submitted to this court copies of her request that the district

court award her monetary damages for violations of her constitutional rights. Id. at

37-54. By submitting this document, titled "Constitutional Rights and Civil

Liberties Infringement Complaint," plaintiff appears to be asking this court to

directly address these claims. Id.

On March 30, 2016, Ms. Hephzibah filed a document titled, "AMENDED

Petition for Temporary Restraining Order and Preliminary Injunction" (Emerg.

Petition). Plaintiff argues that she has copyrighted and trademarked her name and

that district court officials and the government violated these rights when it used

plaintiff's name in the criminal trial against her. Id. at 4-9. To prevent this

infringement, Ms. Hephzibah asks this court to enjoin the criminal trial against

her. Id. at 9. Alternatively, plaintiff appears to be asking this court to enjoin the

government and district court from using her name in that trial. Id. at 9. Plaintiff

contends our authority to issue such an order derives from Rule 65 of the Federal

Rules of Civil Procedure --- which we construe to mean the Rules of the United

States Court of Federal Claims --- Article VI of the United States Constitution, and

42 U.S.C. § 1983. Id. at 1. The government opposed plaintiff's motion for a

temporary restraining order and preliminary injunction, arguing that our court

lacks subject-matter jurisdiction over plaintiff's requests. Def.'s Resp. to Emerg.

Petition (April 18, 2016) ECF No. 6.

The government moved to dismiss the case on May 23, 2016. It argues that

plaintiff's requests that our court review the decision of the district court, order the

district court to transfer the case, and issue a temporary restraining order and

preliminary injunction against the criminal case do not fall under our court's

subject-matter jurisdiction, and thus, under RCFC 12(b)(l), the case must be

dismissed. Def.'s Mot. to Dismiss at 1 (Def.'s Mot.). The government's motion does

not address plaintiff's constitutional claims. See id. at 1-4.

On June 22, 2016, Ms. Hephzibah filed a response to the government's

motion to dismiss the case. Plaintiff argues that the court should enter judgment

against the government because defendant "is in Default for failure to timely

answer and rebut point-by-point" Ms. Hephzibah's assertions. Pl.'s Resp. at 1-2.

Plaintiff also argues that the parties have consented to jurisdiction. Id. at 3. In a

response filed on July 5, 2016, the government argues that default judgment is not

warranted because our "rules allow defendant to respond to a complaint with either

an answer or a motion to dismiss." Def.'s Reply at 2. The government also argues

that it did not consent to jurisdiction and that even if it did, this court "cannot

exercise jurisdiction by the consent of the parties." Id.

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II. DISCUSSION

A. Subject-Matter Jurisdiction

Under RCFC 12(b)(l), this court must dismiss claims that do not fall within

its subject-matter jurisdiction. When considering a motion to dismiss a case for lack

of subject-matter jurisdiction, courts will accept as true all factual allegations the

non-movant made and draw all reasonable inferences in the light most favorable to

that party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics,

Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (requiring that on a motion to dismiss for

lack of subject-matter jurisdiction this court views "the alleged facts in the

complaint as true, and if the facts reveal any reasonable basis upon which the non-

movant may prevail, dismissal is inappropriate"); CBY Design Builders v. United

States, 105 Fed. Cl. 303, 325 (2012).

While a pro se plaintiff's filings are to be liberally construed, see Erickson v.

Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are

outside this court's jurisdiction from being dismissed. See, e.g., Henke v. United

States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction

bears the burden of establishing it and must ultimately do so by a preponderance of

the evidence. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189

(1936); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991); Reynolds v.

Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

B. Analysis

As an initial matter, Ms. Hephzibah appears to bring her claims against

individual federal officers rather than against the United States. See e.g., Compl. at

1 (plaintiff names fourteen defendants "in their individual capacities"). To the

extent that Ms. Hephzibah is bringing claims against any of the named individuals,

these pleadings do not meet the requirements of the Tucker Act and must be

dismissed. See Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) ("[T]he only

proper defendant for any matter before this court is the United States, not its

officers, nor any other individual." (emphasis omitted)). Taking plaintiff's prose

status into account, however, the Court construes her complaint liberally so as to be

against the United States. Even so, the Court still finds that none of her claims fall

within our jurisdiction.

1. The Court Lacks Subject-Matter Jurisdiction to Review an Order of a

District Court

The government correctly points out that this court does not have jurisdiction

to review a district court order. Def.'s Mot. at 3. Our court "does not have

jurisdiction to review the decisions of district courts ... relating to proceedings

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before those courts." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994).

Accordingly, we do not have jurisdiction to review on appeal the District Court of

the Middle District of Florida's order to dismiss Ms. Hephzibah's civil complaint

before that court. Plaintiff also asks this court to conduct an "administrative

review" of the district court's order; however, she does not identify a statute that

would authorize us to do so. Com pl. at 15-20. While section (b)(l) of the Tucker

Act provides this court jurisdiction to review an administrative agency's award of a

federal contract to a private party, the district court is not an agency, and Ms.

Hephzibah is not challenging the awarding of a contract. See id. Thus, we lack

subject-matter jurisdiction over the request and cannot conduct an administrative

review of the district court's decision.

2. The Court Lacks Subject-Matter Jurisdiction to Order the District Court to

Transfer a Matter

Plaintiff asks 1 that her civil claims before the district court be transferred to

this court pursuant to 28 U.S.C. § 1631. Compl. at 10. The statute provides that

"[w ]henever a civil action is filed in a court ... the court shall, if it is in the interest

of justice, transfer such action or appeal to any other such court in which the action

or appeal could have been brought at the time it was filed or noticed." 28 U.S.C.

§ 1631 (2012). As the government notes, nothing in 28 U.S.C. § 1631 grants this

court the power to order a district court to transfer a matter to us. Def.'s Mot. at 3.

And, even if the statute did allow this, the request still fails to comply with the

statute's requirement that the receiving court have jurisdiction over the case to be

transferred. Id. As discussed below, this court does not have jurisdiction over

plaintiff's underlying claim to enjoin a criminal trial against her. Id.2

Plaintiff also cites as authority 28 U.S.C. §§ 1491, 2344, and 1292(d)(4)(B), as

well as RCFC 3.1. Compl. at 10. None of these authorities provide us the power to

order a district court to transfer a case. While 28 U.S.C. § 1491 defines this court's

jurisdiction, it does not authorize us to order a district court to transfer a case.

Section 2344 discusses the process by which parties aggrieved by a final

administrative order can challenge it before an appellate court; nowhere does this

statute mention our court. Though 28 U.S.C. § 1292(d)(4)(B) outlines the rules for

transferring actions from district court to our court, it does not enable this court to

1

As noted earlier, these papers were captioned for the district court, but Ms.

Hephzibah appears to request action by this court. Thus, the Court construes the

papers to be directed here.

2 Alternatively, to the extent we construe Ms. Hephzibah to be seeking review of

the district court's decision not to transfer the matter to this court, we also lack

subject-matter jurisdiction. As noted above, we lack the authority to review the

orders of a district court. Joshua, 17 F.3d 378 at 380.

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order such transfer. And finally, RCFC 3.1 merely establishes the filing

requirements for transferring parties. For these reasons, the court lacks

jurisdiction to order the district court to transfer plaintiff's civil claim here.

3. The Court Lacks Subject-Matter Jurisdiction over Plaintiff's Constitutional

and Civil Rights Claims

Plaintiff claims that the government violated her First, Fourth, Fifth, and

Sixth Amendment rights and requests money damages of $4,433,000. Compl. at

37-54. The court's jurisdiction, under the Tucker Act, requires that a plaintiff

identify a substantive source of law that creates the right to money damages.

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). But none of these

amendments are money-mandating. See Betz u. United States, 40 Fed. Cl. 286, 293

(1998) (Fifth Amendment's Self-incrimination Clause); Smith v. United States, 709

F.3d 1114, 1116 (Fed. Cir. 2013) (Fifth Amendment's Due Process Clause); 3 Gable v.

United States, 106 Fed. Cl. 294, 298 (Fed. Cir. 2012) (Sixth Amendment); Brown u.

United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (Fourth Amendment); United

States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (First Amendment).

Plaintiff also argues that 28 U.S.C. §§ 1331, 1343, and 1391 create a right to

sue for money damages. Compl. at 40. But these statutes prescribe jurisdictional

and venue rules for the federal district courts. Although this court is a federal

court, it is not a federal district court. See Warren v. United States, 106 Fed. Cl.

507, 512 (2012). Thus, these statutes have nothing to do with our court's

jurisdiction over any matter, much less Ms. Hephzibah's claims.

Plaintiff also maintains that she has a right to redress under the civil rights

statute, 42 U.S.C. § 1983. Compl. at 40. Our court, however, "does not have

jurisdiction to consider civil rights claims brought pursuant to 42 U.S.C. §§ 1981,

1983, or 1985 because jurisdiction over claims arising under the Civil Rights Act

resides exclusively in the district courts." Marlin v. United States, 63 Fed. Cl. 475,

476 (2005); see also Bowles v. United States, No. 14-1241C, 2015 WL 4710258, at *3

(Fed. Cl. July 31, 2015).4

3 The Due Process Clause of the Fifth Amendment may only be a basis for our

jurisdiction when a claim seeks the return of money paid to the federal government,

under the rubric of an illegal exaction. See Aerolineas Argentinas v. United States,

77 F.3d 1564, 1573 (Fed. Cir. 1996); Coleman u. United States, No. 13-431C, 2014

WL 949984, at *3 (Fed. Cl. Mar. 7, 2014). Plaintiff does not raise such a claim, nor

does she allege a violation of the money-mandating Takings Clause of the Fifth

Amendment.

4 Moreover, 42 U.S.C. §§ 1981, 1983, 1985, and 1986 apply to actions of state and

local, not federal, officials. See Griffith v. United States, No. 14-793C, 2015 WL

1383959, at *2 (Fed. Cl. Mar. 20, 2015).

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Finally, plaintiff alleges that 18 U.S.C. §§ 241 and 242 provide a right to sue

for money damages. Compl. at 51-52. This is incorrect. Section 241 provides for

criminal penalties for those conspiring against the exercise of rights, and Section

242 sets the criminal punishments for actions under color of law that deprive one of

rights based on a person's status as an alien or by reason of color or race. These

statutes "are criminal statutes that provide no basis for a civil action in any court."

Clarke v. United States, No. 10-283C, 2010 WL 2143675, at *2 (Fed. Cl. May 24,

2010). The Court of Federal Claims does not have jurisdiction to entertain criminal

matters. Joshua, 17 F.3d at 379; Jones v. United States, 440 F. App'x 916, 918 (Fed.

Cir. 2011); Stanwyck v. United States, 127 Fed. Cl. 308, 313-15 (2016).

For the above-stated reasons, plaintiff's constitutional and statutory claims

fall outside this court's jurisdiction.

4. Plaintiff's Motion for a Preliminary Injunction or Temporary Restraining

Order Does Not Establish Our Jurisdiction

Nothing contained in plaintiff's motion for injunctive relief establishes our

court's jurisdiction over the subject matter of her claims. Plaintiff alleges she has

copyright and trademark rights to her name. Emerg. Petition, at 4-9. To prevent

the government from allegedly infringing these rights by using her name during the

criminal trial against her, Ms. Hephzibah asks this Court to issue a temporary

restraining order and preliminary injunction staying those proceedings. Id.

Plaintiff argues that such relief is authorized by 17 U.S.C. § 502, Rule 65 of the

Rules of the United States Court of Federal Claims, and Article VI of the United

States Constitution. Id. at 2-4.5

Under plaintiff's trademark infringement theory, her request fails for lack of

jurisdiction. Under the Tucker Act, this court cannot grant equitable relief unless

such relief is "incident of and collateral to" a money judgment that this court can

issue. 28 U.S.C. § 1491 (a)(2); James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998)

(holding this court has "no power to grant affirmative non-monetary relief unless it

is tied and subordinate to a money judgment."). But under the Tucker Act, this

court lacks jurisdiction over claims that sound in tort. 28 U.S.C. § 1491(a).

Trademark infringement sounds in tort, and thus has not been placed within our

jurisdiction. See Lockridge v. United States, 218 Ct. Cl. 687, 688-90 (1978). 6

5 The provisions of Article VI relied upon by plaintiff --- the Supremacy Clause and

the oath of office requirement --- have nothing to do with our court's authority to

grant injunctive relief.

6 Though cases alleging trademark infringement are not within our court's

jurisdiction, this is not to say that all cases involving trademarks will fall outside

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Because this court lacks jurisdiction to award monetary relief for Ms. Hephzibah's

trademark claims (or any of her other claims), there can be no equitable relief that

is "tied and subordinate" to such relief. Consequently, the Court lacks authority to

grant plaintiff's injunctive request under her trademark theory.

Under plaintiff's copyright theory, her request similarly fails for lack of

jurisdiction. Section 1498 of Title 28 grants this court jurisdiction to hear a limited

range of copyright disputes. Boyle v. United States, 200 F.3d 1369, 137 4-73 (Fed.

Cir. 2000). But in order to sue for copyright infringement, 17 U.S.C. § 411(a)

requires that a plaintiff establish that the copyright is registered or that the

Copyright Office has refused to register the copyright. Jennette v. United States, 77

Fed. Cl. 126, 132 (2007). As names are not by law copyrightable, 37 C.F.R.

§ 202. l(a), plaintiff is unable to establish a necessary condition to sue for copyright

infringement. See Miles v. United States, No. 14-416C, 2014 WL 5020574, at *3-4

(Fed. Cl. Oct. 6, 2014). Thus, we have no authority to grant Ms. Hephzibah's

injunctive request under her copyright theory.

5. Subject-Matter Jurisdiction Cannot Be Established by Consent or Default

Plaintiff argues that the court should enter default judgment against the

government because defendant has not answered her assertions, Pl.'s Resp. at 1-2,

and that subject-matter jurisdiction exists because the parties have consented to it,

id. at 3. Plaintiff's first argument fails because, as the government notes, RCFC

12(b) allows defendant to respond to a complaint with either an answer or a motion

to dismiss. Thus, default judgment in Ms. Hephzibah's favor is not warranted.

Plaintiff's second argument fails because the government did not consent to

jurisdiction in this court and, even if it did, consent of the parties to a suit does not

establish jurisdiction. See Ins. Corp. of Ireland v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982) ("[N]o action of the parties can confer subject-

matter jurisdiction upon a federal court. Thus, the consent of the parties is

irrelevant."); cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-36

(2008) (discussing the inability of the government to waive the statute of limitations

in this court as it is a jurisdictional bar). Thus, subject-matter jurisdiction does not

exist over plaintiff's claims. In any event, if the government failed to move to

dismiss plaintiff's case, the Court would be required to dismiss the case on its own,

under RCFC 12(h)(3), because all of plaintiff's claims are plainly outside our

jurisdiction.

our jurisdiction. See, e.g., Hazeltine Corp. v. United States, 145 Ct. Cl. 138 (1959)

(addressing the tax implications of abandoning trademarks); Sterling, Winchester &

Long, L.L. C. v. United States, 83 Fed. Cl. 179 (2008) (resolving the limits of a

trademark license agreement plaintiff entered into with the U.S. Postal Service).

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III. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss this case, pursuant

to RCFC 12(b)(l), is GRANTED due to a lack of subject-matter jurisdiction.

Plaintiff's motion for a preliminary injunction and temporary restraining order is

DENIED, also for lack of subject-matter jurisdiction. The Clerk is directed to close

this case.7

IT IS SO ORDERED.

Ju ge

7 Plaintiff's unopposed motion for in forma pauperis status is GRANTED.

Plaintiff is not subject to the inmate-account procedures directed by 28 U.S.C.

§ 1915 because -- although accused of a crime -- she was apparently not detained at

the time she filed her complaint here and thus, with respect to that complaint, is

not considered a "prisoner" under the act. Cook v. Todd, No. CV409-031, 2009 WL

1288854, at *1 n.1 (S.D. Ga. May 8, 2009) ("pre-trial defendants are not 'prisoners'

under the PLRA if they are not 'incarcerated or detained in any facility"').

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