Rusk v. United States

3Jn tbe Wniteb ~tates ~ourt

OR GINAL

of eberal jf ~laittt5

No. 16-1640C

(Filed December 19, 2016)

NOT FOR PUBLICATION

FILED

************************ DEC 1 9 2016

*

* U.S. COURT OF

ZACHARY R . E. RUSK, ·k FEDERAL CLAIMS

·k

*

Plaintiff,

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

*****************'k******

ORDER

On December 12, 2016, plaintiff Zachary R. E. Rusk, r epresenting himself,

filed a complaint in this court along with a request for leave to proceed in forma

pauperis. After carefully reviewing the complaint, the Court finds t hat Mr. Rusk

has failed to state a claim within this court's subject matter jurisdiction.

Unfortunately, Mr. Rusk seems to misunder stand the nature of our Court and its

jurisdiction.

Subject-matter jurisdiction can be challenged by the parties at any time, or

raised by the court sua sponte. Folden v. United States, 379 F.3d 1344, 1354 (Fed.

Cir. 2004). Pursuant to Rule 12(h)(3) of the Rules of the United States Court of

Federal Claims (RCFC), "if the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action." When a court undert akes

this determination, "the allegations stated in t he complaint are taken as true and

jurisdiction is decided on the face of the pleadings." Folden, 379 F.3d at 1354.

The Tucker Act, 28 U.S.C. § 1491, explicitly states that this CoUl't h as no

jurisdiction over tort claims. 28 U.S.C. § 1491(a)(l). This CoID't's jurisdiction must

be based on the alleged existence of a contract with the federal government or on a

violation by the federal government of a law or constitutional provision mandating

the payment of money. 28 U.S.C. § 1491(a)(l); see also United States v. Testan, 424

U.S. 392, 398 (1976) (noting that the Tucker Act confers jurisdiction only where the

federal statute allegedly violated confers "a substantive right to recover money

damages from the United States"); Contreras v. United States, 64 Fed. Cl. 583, 588

7014 1200 DODO 9093 5401

(2005) (holding that this court's jurisdiction "must be based on a law or regulation

that either entitles the plaintiff to a payment of money from the government, or

places a duty upon the government, the breach of which gives the plaintiff a money

damages remedy").

The only constitutional provisions in Mr. Rusk's complaint, the Fifth and

Fourteenth Amendments, are not money mandating and therefore do not confer

jurisdiction on this Court. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.

Cir. 1995) (holding that the equal protection component of the Fifth Amendment is

not money-mandating) (citing Carruth v. United States, 627 F .2d 1068, 1081

(1980)); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (holding t h at

the Due Process Clauses of both the Fifth and the Fourteenth Amendments are not

money-mandating); Brown v. United States, 227 Ct. CL 786, 787 (1981) (finding no

jurisdiction over claim alleging deprivation of liberty in violation of the Fifth

Amendment).t

Finally, it is well established that this Court does not have jurisdiction to

review the actions of other courts. See Joshua v. United States, 17 F.3d 378, 380

(Fed. Cir. 1994) (holding that this court "does not have jurisdiction to r eview the

decisions of district courts . .. relating to proceedings before t hose courts"); Vereda,

Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) (explaining that this

court is not an appellate tribunal, and "does not h ave jurisdiction to review the

decisions of district courts"); Bafford v. United States, No. 09- 030, 2009 WL

2391785, at *4 (Fed. Cl. Aug. 3, 2009) (explaining that this court does not have

jurisdiction to review the decisions of federal courts of appeal).

Because it is apparent on the face of the complaint that this Court lacks

jurisdiction, plaintiff's complaint is DISMISSED as beyond our court's jurisdiction

pursuant to RCFC 12(h)(3). The request to proceed in forma pauperis is hereby

GRANTED, and Mr. Rusk is relieved of the obligation to pay the filing fee for this

case. The Clerk shall close the case.

IT IS SO ORDERED.

t 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 v. United States, No. 13-431C, 2014

WL 949984, at *3 (Fed. Cl. Mar. 7, 2014).

-2-