Nyabwa v. United States

No. 16-1056C

Filed: January 6, 2017 FILED

****** ** * * ********* * JAN - 6 2017

COLLINS 0. NYABWA, *

* U.S. COURT OF

FEDERAL CLAIMS

Plaintiff, *

* 28 u.s.c. § 1495; 28 u.s.c.

v. * § 2513; Motion to Dismiss; Pro

* Se.

UNITED STATES,

*

Defendant. *

*

* ****************** *

Collins 0. Nyabwa, pro se, Corpus Christi, TX.

Alexander 0. Canizares , Trial Attorney, Commercial Litigation Branch , Civil

Division , United States Department of Justice, Washington , D.C., for defendant. With him

was Robert E. Kirschman, Jr., Director, Commercial Litigation Branch , Benjamin C.

Mizer, Principal Deputy Assistant Attorney General, Civil Division, Department of Justice,

Washington, D.C.

OPINION

HORN, J.

FINDINGS OF FACT

Pro se plaintiff, Collins Nyabwa, filed an apparent complaint titled "ACTUAL

INNOCENCE COMPENSATION CLAIM PURSUANT TO 28 U.S.C. §§ 1495 AND 2513

(COLLECTIVELY, THE 'UNJUST CONVICTION STATUTES') AND BRIEF IN

SUPPORT THEREOF" in the United States Court of Federal Claims alleging that

defendant, the United States, "illegally detained/wrongfully imprisoned" him, for violating

federal immigration law, at a federal immigration detention center in Houston, Texas,

between July 2012 and November 2013.1 As a result of plaintiff's allegedly illegal

detention and allegedly wrongful imprisonment for approximately sixteen months, plaintiff

seeks to recover $66,666.00 in monetary damages pursuant to 28 U.S.C. § 1495 (2012)

and 28 U.S.C. § 2513 (201 2). Plaintiff filed a motion to proceed in forma pauperis , which

this court granted .

1 Acco rding to plaintiff, prior to his conviction under Texas state law, he was a legal

resident of the United States.

Plaintiff alleges that, on July 29, 2011, he was convicted by a Texas state court of

three counts "Improper Photography" under Texas state statute "§21.15(b)(1 ),"for which

he was sentenced to one year imprisonment. Plaintiff alleges that "upon completion of his

Texas state jail sentence" in July 2012, he was "transferred to an immigration detention

center in Houston Texas" and held under mandatory detention for deportation

proceedings. Plaintiff states that, in April 2013, "because of the Texas state convictions,"

federal immigration authorities charged, and subsequently convicted, him of violating

federal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), and ordered that he be

deported to Kenya. According to his complaint, plaintiff was released from the detention

center in November 2013 "when an Immigration Judge terminated his immigration

proceedings."

Plaintiff alleges that, approximately one year after his release from the federal

detention center, "in an unrelated case," Ex Parle Thompson, 442 S.W.3d 325, 351 (Tex.

Crim. App. 2014), the Texas Court of Criminal Appeals found the Texas state statute

under which Mr. Nyabwa had been convicted to be unconstitutional. On August 23, 2016,

approximately three years after plaintiff was released from the detention center, a United

States Judge of the Southern District of Texas vacated plaintiff's three convictions under

Texas state law. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016)

(vacating the previous judgments of Texas trial court adjudging Collins 0. Nyabwa guilty

of improper photography under section 21.15(b) of the Texas Penal Code). 2

In his complaint, plaintiff asserts that, because his Texas state convictions were

vacated in August 2016, "he is 'actually innocent' of any violations to 8

U.S.C. § 1227(a)(2)(A)(ii), the federal immigration statute behind his immigration

detention." According to plaintiff, his "immigration violations were ONLY brought about by

his Texas State convictions and now that they have been formally VACATED, he is

'actually/factually' innocent of ANY immigration violation." Plaintiff asserts that, because

he is "'actually innocent,' the U.S. government must compensate him pursuant to 28

U.S.C. § 1495 & 2513 for his 16 months of wrongful detention/imprisonment," in the

amount of $66,666.00.

In sum, the timeline of events plaintiff offers, other than the numerous cases he

had filed in United States District Court for the Southern District of Texas, 3 is that: on July

2The Order vacating plaintiff's three convictions was issued on August 23, 2016, two days

before plaintiff filed his complaint in the above-captioned case.

3 In addition to the above-captioned case, it appears that Mr. Nyabwa has initiated the

following actions in the United States District Court of Texas, Southern District relating to

his allegedly improper sixteen-month detention, which remain pending: Nyabwa v. Harris

Cty. Sheriff, 16-mc-2118 (S.D. Tex. Sept. 14, 2016); Nyabwa v. Warden, No. 16-mc-1965

(S.D. Tex. Aug. 29, 2016); Nyabwa v. Warden, No. 16-2638 (S.D. Tex. Aug. 29, 2016);

Nyabwa v. Corrections Corp. of Am., No. 16-1644 (S.D. Tex. June 6, 2016); Nyabwa v.

Unknown Jailers at CCA, No. 16-782 (S.D. Tex. Mar. 24, 2016); Nyabwa v. United States,

No. 16-783 (S.D. Tex. Mar. 23, 2016). Plaintiff also filed the following actions in the United

States District Court of Texas, Southern District relating to his allegedly improper sixteen-

2

29, 2011, he was convicted under the Texas Penal Code and sentenced to one year state

imprisonment; following his release, he was held in an immigration detention center from

July 2012 to November 2013, when he was released; in September 2014, the Texas

Court of Criminal Appeals held the state statute under which plaintiff was previously

convicted to be unconstitutional; in August 2016, a Judge of the United States Southern

District of Texas vacated plaintiff's earlier convictions; and, on August 25, 2016, Mr.

Nyabwa filed his complaint in this court.

In response to plaintiff's complaint, defendant filed a motion to dismiss plaintiff's

complaint pursuant to Rule 12(b)(1) and (b)(6) of the Rules of the United States Court of

Federal Claims (RCFC) (2016). Defendant argues that this court lacks subject matter

jurisdiction to consider Mr. Nyabwa's claims under 28 U.S.C. § 1495 because this statute

limits the court's jurisdiction to claims based upon wrongful convictions for Federal, not

state, crimes. Defendant also argues that a plaintiff seeking relief based upon an alleged

reversal or set-aside of a conviction under 28 U.S.C. § 2513(a) must demonstrate,

through the necessary record or certificate, that the conviction was set aside due to lack

of guilt.

DISCUSSION

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. 519, 520-21 (requiring that allegations

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

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

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

U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews 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, "'[!]here is

no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled

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

(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)

(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see

also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011);

month detention, which have been terminated: Nyawba v. Stephens, No. 12-1152 (S.D.

Tex. Apr. 4, 2012) (terminated Aug. 23, 2016), appeal denied, No. 12-20682 (5th Cir.

June 20, 2013); Nyabwa v. Harris Cty. Sheriff, 16-mc-2186 (S.D. Tex. Sept. 14, 2016)

(terminated Jan. 4, 2016); Nyabwa v. Warden, No. 16-1643 (S.D. Tex. June 6, 2016)

(terminated June 30, 2016); Nyabwa v. Warden, 16-0786 (S.D. Tex. Mar. 23, 2016)

(terminated May 23, 2016). Additionally, plaintiff indicates in his complaint that he filed an

administrative claim "on November 24, 2015 with the Department of Homeland Security

(DHS) raising a similar 'actual innocence' compensation claim," and that "DHS formally

denied plaintiff's Administrative Claim on February 22, 2016." Plaintiff attached a copy of

this claim to his complaint.

3

Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose 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 Hughes 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'g and reh'q en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.

United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities

in a pro se plaintiff's 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)).

Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1)

for lack of subject matter jurisdiction, and RCFC 12(b)(6), for failure to state a claim for

which relief may be granted. The Tucker Act, 28 U.S.C. § 1491, 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. § 1491(a)(1) (2012). 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. Navajo Nation, 556 U.S. 287,

289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee

Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'q and reh'q en bane denied

(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); 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., Inc. v.

United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[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. Inc. v. United States, the United States Court of Appeals for the

4

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."

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

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

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

Clapp v. 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." kL see also [United States v. ]Testan, 424 U.S.

[392,] 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 referred to as claims brought under a "money-mandating"

statute.

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

see also Twp. of Saddle Brook v. 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.

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

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

a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims

premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not

money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal

should be for lack of subject matter jurisdiction.'" Jan's Helicopter Serv .. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty .. Ariz. v.

United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.

5

2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under

the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant's favor. See Erickson

v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge

must accept as true all of the factual allegations contained in the complaint." (citing Bell

All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805

F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d

1159, 1163 (Fed. Cir. 2011 ).

"Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiff's claim, independent of any

defense that may be interposed." Holley 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'g

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011 ); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,

713 (2010). 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(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2)

(2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell All. Corp. v.

Twombly. 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim for relief,

"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to

support a claim." Bradley 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§ 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981)

("[C]onclusory allegations unsupported by any factual assertions will not withstand a

motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff's 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 All. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g

denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, "[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. Igbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. at 555).

When construed liberally, plaintiff's complaint contends that he is entitled to receive

monetary damages pursuant to 28 U.S.C. § 1495 and 28 U.S.C. § 2513 because he is

"actually innocent" of the state law violations for which he was convicted and, therefore,

"actually innocent" of any violation of federal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii)

that was the basis for his allegedly, illegal detention for a sixteen month period between

July 2012 and November 2013. Defendant argues that plaintiff has failed to allege or show

that he has obtained a certificate of innocence from any court or that his actual innocence

6

has been established, as required by 28 U.S.C. §§ 2513 and 1495. Moreover, defendant

argues that plaintiff's conviction under the Texas Penal Code was not set aside due to a

finding of innocence. Defendant argues also that this court does not have subject matter

jurisdiction to consider plaintiff's claims under 28 U.S.C. § 2513 because plaintiff's

detention pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227(a), "does not

constitute an 'offense against the United States' for purposes of section 2513." According

to defendant, plaintiff's deportation proceedings do not qualify as a conviction of a crime

committed against the United States for which money damages are available under 28

U.S.C. § 2513.

Plaintiff tries to rely on 28 U.S.C. § 1495 and 28 U.S.C. § 2513 to invoke the

jurisdiction of this court, however, Mr. Nyabwa's claim for monetary damages does not

fall within the jurisdiction of this court. Although this court has jurisdiction to adjudicate

certain claims for unjust conviction and imprisonment pursuant to 28 U.S.C. §§ 1495 and

2513 when a plaintiff's claim satisfies specified, well-established, threshold requirements,

plaintiff in the above-captioned case has not met these requirements. Both 28 U.S.C.

§ 1495 and 28 U.S.C. § 2513 relate to criminal offenses against the United States, and,

this court does not have jurisdiction to hear a plaintiff's unjust conviction and

imprisonment claims arising from state crimes. See 28 U.S.C. § 1495 (stating that this

court has jurisdiction to render judgment upon any claim for damages any person unjustly

convicted of an offense against the United States) (emphasis added); see also Machulas

v. United States, 621 F. App'x 629, 632 (Fed. Cir. 2015) (holding that the Court of Federal

Claims did not possess jurisdiction to hear plaintiff's claim for unjust conviction and

imprisonment because plaintiff was convicted of a state crime, not a federal crime).

Therefore, to the extent plaintiff in the above-captioned case is seeking to recover

monetary damages based on a claim of unjust conviction and imprisonment related to his

conviction under a Texas state statute, this court does not have jurisdiction to consider

such a claim.

Plaintiff asserts that his complaint in this court alleging unjust imprisonment

pertains only to his detention by federal immigration officials pursuant to the Immigration

and Nationality Act, 8 U.S.C. § 1227(a). According to 28 U.S.C. § 1495, "[!]he United

States Court of Federal Claims shall have jurisdiction to render judgment upon any claim

for damages by any person unjustly convicted of an offense against the United States

and imprisoned." 28 U.S.C. § 1495. Section 1495 of title 28, "must be read in conjunction

with 28 U.S.C. § 2513." Humphrey v. United States, 52 Fed. Cl. 593, 596 (2002), aff'd,

60 F. App'x 292 (Fed. Cir. 2003) (citations omitted); see also Abu-Shawish v. United

States, 120 Fed. Cl. 812, 813 (2015) ("To establish jurisdiction, however, a plaintiff

seeking compensation under Section 1495 must also meet the requirements of 28 U.S.C.

§ 2513(a)(1)."). The statute at 28 U.S.C. § 2513 states:

(a) Any person suing under section 1495 of this title must allege and prove

that:

(1) His conviction has been reversed or set aside on the

ground that he is not guilty of the offense of which he was

convicted, or on new trial or rehearing he was found not

7

guilty of such offense, as appears from the record or

certificate of the court setting aside or reversing such

conviction, or that he has been pardoned upon the stated

ground of innocence and unjust conviction and

(2) He did not commit any of the acts charged or his acts,

deeds, or omissions in connection with such charge

constituted no offense against the United States, or any

State, Territory or the District of Columbia, and he did not by

misconduct or neglect cause or bring about his own

prosecution.

(b) Proof of the requisite facts shall be by a certificate of the court or pardon

wherein such facts are alleged to appear, and other evidence thereof

shall not be received.

(c) No pardon or certified copy of a pardon shall be considered by the

United States Court of Federal Claims unless it contains recitals that the

pardon was granted after applicant had exhausted all recourse to the

courts and that the time for any court to exercise its jurisdiction had

expired.

(d) The Court may permit the plaintiff to prosecute such action in forma

pauperis.

(e) The amount of damages awarded shall not exceed $100,000 for each

12-month period of incarceration for any plaintiff who was unjustly

sentenced to death and $50,000 for each 12-month period of

incarceration for any other plaintiff.

28 U.S.C. § 2513 (emphasis in original). As this language indicates, 28 U.S.C. § 2513

requires that a plaintiff suing under 28 U.S.C. § 1495, "must allege and prove" that "[h]is

conviction has been reversed or set aside on the ground that he is not guilty of the offense

of which he was convicted ... or that he has been pardoned upon the stated ground of

innocence and unjust conviction," and, that "[h]e did not commit any of the acts charged."

28 U.S.C. § 2513(a); see also Abu-Shawish v. United States, 120 Fed. Cl. at 813 ("[l]n

order for this court to have jurisdiction, a plaintiff must obtain a certificate of innocence

from the district court which states that not only was he not guilty of the crime of

conviction, but also that none of his acts related to the charged crime were other crimes.");

Carpenter v. United States, 118 Fed. Cl. 712, 713 (2014) ("Jurisdiction conferred by

Section 1495 is limited to a plaintiff who proves that his conviction has been reversed or

set aside on the grounds that he is not guilty ... or that he has been pardoned."). In

Humphrey, this court indicated, "[t]hese jurisdictional requirements [of 28 U.S.C. § 1495

and 28 U.S.C. § 2513] are strictly construed, and a heavy burden is placed upon a

claimant seeking relief under such provisions." Humphrey v. United States, 52 Fed. Cl.

at 596; see also Wood v. United States, 91 Fed. Cl. 569, 577 (2009) (holding that

compliance with § 2513, including submission of a certificate of innocence from the

8

federal district court, is a prerequisite to the jurisdiction of the Court of Federal Claims).

Additionally, as noted in Sykes v. United States, 105 Fed. Cl. 231 (2012), "a certificate or

pardon must 'either explicitly or by factual recitation' state that the plaintiff has satisfied

the requirements of Section 2513." !Q,_ at 233 (quoting Humphrey v. United States, 52

Fed. Cl. at 597).

Plaintiff argues that he has provided the necessary proof of his innocence as

required by 2513(a) by submitting to the court "a document proving a U.S. District Judge

on 8/23/2016 VACATED his 3 Texas state convictions." Defendant argues that the

vacation of Mr. Nyabwa's conviction for reasons other than actual innocent is not sufficient

to confer jurisdiction under section 2513.

Plaintiff has not alleged that his conviction was set aside or reversed because he

had not committed, or was not guilty of, the acts underlying his original conviction.

Instead, plaintiff relies solely on the Order of the United States District Court Judge which

held that "the Judgments of the 248th District Court of Harris County, Texas, in Cause

Nos. 1266052, 1266053, and 1266054, adjudging Petitioner Collins 0. Nyabwa guilty of

improper photography under section 21.15(b) of the Texas Penal Code, are VACATED."

(emphasis in original). This Order was submitted by defendant to the court. Section 2513

provides that "[p]roof of the requisite facts shall be by a certificate of the court or pardon,"

and that other evidence of a plaintiff's innocence shall not be received by the court. 28

U.S.C. § 2513(b). This court reviewed the Order of the Texas District Court Judge and

found no discussion of facts supporting plaintiff's innocence or a determination of

innocence by the District Court. Having received and reviewed the Order of the Texas

District Court Judge, this court finds that there is no evidence that even plaintiff's state

court convictions were vacated due to a finding by any court of plaintiff's innocence, as

required by the statute. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016).

Additionally, plaintiff has not alleged, much less submitted, evidence that he received a

pardon for the crimes for which he was convicted. Because plaintiff has failed to satisfy

the jurisdictional requirements of 28 U.S.C. §§ 1495 and 2513, and plaintiff does not cite

to any other authority to invoke the jurisdiction of this court, this court is not the proper

forum to adjudicate plaintiff's claim. Plaintiff's claim for monetary damages does not fall

within the grant of jurisdiction to this court. The court also notes that plaintiff's detention

at the immigration facility between July 2013 and November 2013 was not improper

because the detention was based on plaintiff's criminal conviction, which was not vacated

until August 24, 2016, based on the finding of the Texas Court of Criminal Appeals that

the statute under which plaintiff was convicted was unconstitutional, which occurred

approximately one year after plaintiff was released from the immigration detention center

in November 2013.

9

CONCLUSION

Because plaintiff has failed to comply with the statutory requirements of 28

U.S.C. §§ 1495 and 2513, defendant's motion to dismiss plaintiff's complaint is

GRANTED, and plaintiff's complaint is DISMISSED. The Clerk of Court shall enter

JUDGMENT consistent with this Order.

IT IS SO ORDERED.

d~at:0-/L

MARIAN BLANK HORN

Judge

10