O Diah v. United States

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Pro Se

No. l6-e3lc NOV - 3 2016

(Filed: November 3, 2016 | Not for Publication)

.Eor;Soorr;t?fi.

) Keywords: Pro Se Complaint; Tort

AROR ARK O'DIAH, ) Claims; Criminal Claims;

) Constitutional Claims; 42 U.S.C.

Plaintiff, ) gg 1983 and 1985; Breach of Contract.

)

v.)

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

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

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

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

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

Washington, DC, for Defendant.

OPINIONAND ORDER

This case is currently before the Court on the govemment's motion to dismiss the

complaint pursuant to Rule 12(bXl) of the Rules of the Court of Federal Claims (RCFC).

For the reasons discussed below, the govemment's motion to dismiss is GRANTED.I

BACKGROUND

This is the fourth complaint that the pro se plaintiff Aror Ark O'Diah has filed in

this Court. Mr. O'Diah's three prior complaints were dismissed in an unpublished

opinion the Court issued some four months before the present case was filed. O,Diah v.

United States, Case Nos. l5-332C,15-400C, 15-1000C,2016 WL 1019251 (Fed. Cl. Mar.

14,2016). As the Court noted when it dismissed Mr. O'Diah's previous complaints, Mr.

O'Diah has also filed many similar complaints in other jurisdictions.

' Mr. O'Diah has also filed a motion to proceed in forma pauperis along with his

complaint. The Court hereby GRANTS that motion solely for purposes of deciding the

pending motion to dismiss.

?01q leDB 0000 1011 1?P0

In this fourth complaint, Mr. O'Diah appears to repeat the grievances he

expressed in his prior three complaints, in some instances expanding upon them. These

include allegations of mental, physical, and emotional abuse, assault, attempted

kidnapping, attempted murder, false arrest, malicious prosecution, and unjust conviction

and imprisonment. See Compl. aI l-2, 4-5,8-9, 15,23-24, Dkt. No. 1. They also include

allegations by Mr. O'Diah that he has been subjected to cruel and unusual confinement

involving exposure to radioactive chemicals. See id. at 4, 15,23-24.In addition, Mr.

O'Diah repeats, and sometimes expands upon, prior claims of unlawfirl search, seizure,

and destruction of property, intentional misrepresentation and fraud with respect to his

business activities and child support obligations, "false and contrived statements and

perjured and fabricated testimonies," "retaliatory and discriminatory practices," and

"breaches of implied contract." See id. at 1,34, 17,23-24,26. Mr. O'Diartr also again

alleges, as he did in his prior three complaints, that all ofthese actions, and a conspiracy

to commit the same, have been carried out by a variety of federal entities, officers, and

agents; the state of New York; and state and local level officers and agents, as well as

private entities and his former attorneys. See id. at 2,4-7, 11-18,23-26,

This fourth complaint also includes new ailegations conceming actions ofthe

United States Postal Service, apparently in conspiracy with the Department ofJustice.

See id. at 1,7,2710. According to Mr. O'Diah, the Postal Service deliberately failed to

deliver and/or destroyed a notice of appeal of this Court's decision dismissing his three

earlier complaints. See id. at 27-30.

Mr. O'Diah claims the actions of which he complains resulted in deprivations of

his rights under the United States Constitution, including his rights under the First,

Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. See id. at l-2,4,9,10,291I,

36. He also alleges violations of42 U.S.C. $$ 19S3, 1985, and 1986, as well as intentional

misrepresentation and fraud, negligence, and undefined "joint breaches of fiduciary

duties." See id. at 1,34, 13,17-18,26,31. He also seeks to collaterally attack orders

and judgments by other courts. See id. at 6. Finally, Mr. O'Diah demands $400 billion in

damages and injunctive relief. See id. at 1,35-36.

DISCUSSION

I. Standards for Motion to Dismiss Under RCFC 12(bxl)

The Court of Federal Claims is a court of "limited jurisdiction.,, E4, Marcum

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

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

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

or any Act ofCongress or any regulation ofan executive department, or upon any express

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

cases not sounding in tort." 28 U.S.C. g 1491(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 plaintiff must identi& an independent source

ofa substantive right to money damages from the United States arising out of a 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 Pac. 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 Inteeration. Inc. v. United States, 659 F.3d 1159, 1163

(Fed. Cir. 2011). Further, it is well established that complaints frled by pro se plaintiffs

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

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

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

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

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

Applying these standards, the Court concludes that-for much the same reasons

that it dismissed Mr. O'Diah's previous complaint-it also lacks subject matter

jurisdiction over the claims contained in his fourth complaint, which-as best the Court

can understand them-are mostly identical to his previous claims.

First, the Court ofFederal Claims has no jurisdiction to entertain claims against

any defendant other than the United States. See United States v. Sherwood, 312 U.S. 584,

588 ( 1941) ("[]fthe relief sought is against others than the United States the suit as to

them must be ignored as beyond the jurisdiction ofthe court."). Accordingly, Mr.

O'Diah's claims against private entities, organs of state govemment, or any other parties

besides the United States 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, l7 F.3d 378,379 (Fed Cir. 1994). Nor does it extend to

any claims "sounding in tort." See 28 U.S.C. $ 1491(aX1); see also Keene Corp. v.

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

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, mental, physical or emotional abuse, intentional

misrepresentation and fraud, breach offiduciary duties and so on, 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

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

105 F.3d at 623; 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 give rise to a

substantive right to money damages. See United States v. Connolly,716 F.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 Pac. 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 Stares, No. 95-5127, 1995 WL

592017, at *2 (Fed. Cir. Oct. 6 1995) (per curiam) (Seventh Amendment); Trafny v.

United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (per curiam) (Eighth Amendment).

Similarly, the Court does not possess jurisdiction to entertain Mr. O' Diah's

claims ofalleged civil rights violations premised upon, among other statutes, sections

1983 and 1985 of Title 42 of the United States Code. See. e.s., Jefferson v. United States,

104 Fed. Cl. 81, 89 (2012) (citing multiple cases holding that the Court ofFederal Claims

lacks jurisdiction to entertain claims brought under 42 U.S.C. $$1983 or 1985).

Furthermore, this Court lacks jurisdiction to review decisions of the Federal

district courts and state courts. Joshua, 17 F.3d at 379 (holding that this Court "does not

have jurisdiction to review the decisions ofdistrict courts . . . relating to proceedings

before those courts"); Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1034 (8th Cir.

1999) (explaining lower Federal courts lack jurisdiction to review state court judgments).

Thus, to the extent Mr. O'Diah asks this Court to review decisions of state and Federal

courts in New York or elsewhere, those claims must be dismissed for lack of

jurisdiction.2

Finally, although this Court possesses jurisdiction under the Tucker Act to

entertain claims founded on conftacts with the United States, Mr. O'Diah has not

adequately alleged the existence of a contract with the United States. See Kam-Almaz v.

United States, 682 F.3d 1364,1368 (Fed. Cir. 2012) (to allege the existence ofa contract

with the United States, a plaintiff must allege "(1) mutuality of intent, (2) consideration,

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

govemment's representative to bind the government in contract" (quoting Hanlin v.

United States,316 F.3d 1325,1328 (Fed. Cir. 2003))). Mr. O'Diah's allegations also do

not describe any of the terms of the purported contract. Accordingly, Mr. O'Diah has

failed to establish a basis for this Court to exercise jurisdiction pursuant to its authority to

entertain claims based on the breach ofan express or implied contract with the United

States. See Kroll v. Finne4v,242 F.3d 1359,1362 (Fed. Cir. 2001) C'A court must

dismiss a complaint for lack ofsubject matter jurisdiction when the alleged basis for

exercising federal jurisdiction is 'so attenuated and unsubstantial as to be absolutely

devoid of merit."' (quoting Hagans v. Lavine, 415 U.S. 528, 536-37 (1974))); Trauma

'In his complaint, citing RCFC 59 and 60, Mr. O'Diah also appears to ask for

reconsideration of this Court's March 14, 2016 Opinion and Order dismissing his prior

three complaints. But those rules allow a party to request a new trial or reconsideration of

the Court's decision by filing a motion in the case for which such new trial or

reconsideration is sought, not through a collateral attack in some new case.

4

Serv. Grp. v. United States. 104 F.3dll2l, 1325 (Fed. Cir. 1997) (rcquiring a 'lvell-

pleade.dallegatiod' of an express contact 'to overcome challenges to jurisdiction").

CONCLUSION

For the reasons disoussed above, the government's motion to dismiss is hereby

GRANTED and Mr. O'Diab's complaint is DISMISSED without prejudice. The Clerk

is directed to enter judgnent aocordingly.

IT IS SO ORDEREI}.

c-lu-'

ELAINED. KAPLAN

Judge