Findley v. United States

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No. 16-683 C FILED

FEB - 3 2017

(Filed February 3,2017)

U.S- COURT OF

FEDERAL CLAIMS

UNPUBLISHED

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ROBERT L. FINDLEY, ,|(

Pro Se Plaintiff; RCFC 12(bXl);

Pro Se Plaintffi * RCFC l2(bX6); No Jurisdiction

over Blacklisting Claim, Breach

1/ * of Contract Claim or Regulatory

* Takings Claim; Failure to State a

THE LINITED STATES, Claim.

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Defendant.

:1.*1.t<*******{<***

Robert L. Findley, Hebron, MD, pro se.

Daniel B. Volk,United States Department of Justice, with whom were

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E.

Kirschman,./r., Director, Franklin E. White, -/r., Assistant Director, Washington,

DC, for defendant.

OPINION

BUSH, Senior Judge.

The court has before it defendant's motion to dismiss this suit which was

brought pursuant to Rules 12(bX1) and 12(b)(6) ofthe Rules ofthe United States

Court of Federal Claims (RCFC). Defendant's motion has been fully briefed. For

the reasons set forth below, defendant's motion is granted.

?BIq La00 0000 q033 t'{11

BACKGROUNDI

Pro se plaintiff Robert L. Findley is a developer and manager of

low-income housing projects and has been involved with such projects since the

1970s. Compl. fl 4. These projects have used government subsidies ofvarious

types. Id. The project that is the principal focus of this suit is Hurlock Village

Apartments (Hurlock) in Hurlock, Maryland. The agency which provided one

type of subsidy for Hurlock was the United States Department of Agriculture

(USDA). The subsidy provided was a loan in the amount of $708,000, which was

to be repaid over a period of fifty years beginning in 1986. Id. Ex.E.

According to plaintiff, USDA never provided an additional type of subsidy

for Hurlock, which would have provided "rental assistance to attract and retain

low-income tenants." Compl. fl 5. One of the two distinct claims in the complaint,

whether it is characterized as a breach ofcontract or some other type ofactionable

event, is that USDA should have provided rental assistance to Hurlock along with

the loan of $708,000. Id. n A. In 2008, Hurlock experienced financial difficulties

and was charged with non-compliance with the terms of its repayment obligations.

Id. n 5. USDA issued a notice of foreclosure in2012, and this decision was

upheld during an administrative appeal process within the USDA. Id. n 6.

ln2014, the foreclosure status of Hurlock was the basis of an administrative

decision by USDA to deny funding for any new low-income housing projects

involving Mr. Findley in an ownership or management role. Compl. { 7, Ex. D.

This administrative decision by USDA is the focus of the second distinct claim in

the complaint in this case, a claim based on the "blacklisting" of Mr. Findley by

USDA. Id. n ILLater in 2014,1\/b. Findley, proceedingpro se,fled suit in the

United States District Court for the District of Maryland challenging the

aforementioned actions of the USDA. Id. 117. The suit was deemed to rely upon

the Administrative Procedure Act, 5 U.S.C. $$ 701-706 (2012), and was dismissed

because Mr. Findley failed to meet his burden to show that the denial of his USDA

administrative appeal was arbitrary or capricious. Id. Ex. C. The district court

opinion issued on January 14, 2016. Id. Ex. C; see Findley v. U. S. Dep't of Agric.,

r/ The facts recited here are taken from the complaint and attachments thereto. The

court makes no findins of fact in this ooinion.

No. WDQ-14-3658,2016 WL 183900 (D. Md. Ian.14,2016).

On June 10,2016, plaintiff filed suit in this court, again challenging the

actions of the USDA in its administration of subsidies for Hurlock and its

"blacklisting" of Mr. Findley from future low-income housing projects involving

USDA funding. Compl. ]n 14,37. Defendant filed a motion to dismiss on August

9,2016. When no response from plaintiff was filed, the court allowed plaintiff

additional time to file a response brief. Defendant's motion is now fully briefed.

DISCUSSION

I. Standards of Review

A. Pro Se Litigants

The court acknowledges that Mr. Findley is proceeding pro se, and is ,.not

expected to frame issues with the precision of a common law pleading.,, Roche v.

U.S. Postal Serv., 828 F.2d 1 555, 1558 (Fed. Cir. 1987). pro se plaintiffs are

entitled to a liberal construction of their pleadings. see Haines v. Kerner,404

u.s. 519, 520 (1972) (requiring that allegations contained inapro se complaint be

held to "less stringent standards than formal pleadings drafted by lawyers").

Accordingly, the court has examined the complaint and plaintiff s response brief

thoroughly in an attempt to discern plaintiff s claims and legal arguments.2

B. RCFC r2@Xl)

In considering the issue of subject matter jurisdiction, this court must

presume all undisputed factual allegations in the complaint to be true and construe

allreasonableinferencesinfavoroftheplaintiff. scheuerv.Rhodes,4l6u.s.

232,236 (1974), abrogated on other grounds by Harlow v. Fitzgerald,4sT U.S.

800 (1982); Reynolds v. Army & Air Force Exch. Serv.,846 F.2d 746,747 (Fed.

cir. 1988). However, plaintiff bears the burden of establishing subject matter

'/ The court deems plaintiffs response briefto be a clarification ofthe statement of the

claims presented in the complaint. see, e.g., Gardner v. united states,No. 10-451, 201 1 wL

678429, at *4 n.5 (Fed. cl. Feb. 1 7, 201 I ) (construing a pro se plaintiffs response to a motion to

dismiss as an amendment to her complaint).

jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir.

1998) (citing McNutt v. Gen. Motors Acceptance Corp. of 1nd.,298 U.S. 178, 189

( 1 93 6),

and must do so by a preponderance of the evidence, Reynolds , 846 F .2d at

748 (citations omitted). Ifjurisdiction is found to be lacking, this court must

dismiss the action. RCFC l2(hX3).

The Tucker Act delineates this court's jurisdiction. 28 U.S.C. $ l49l

(2012). That statute "confers jurisdiction upon the court of Federal claims over

the specified categories ofactions brought against the United States.,, Fisher v.

United states,402F .3d 1167, ll72 (Fed. cir. 2005) (en banc) (citations omitted).

These include money damages claims against the federal government founded

upon the Constitution, an act of Congress, a regulation promulgated by an

executive department, any express or implied contract with the United States, or

any claim for liquidated or unliquidated damages in cases not sounding intort. Id.

(citing 28 U.S.C. g 1a91(a)(1)).

The Tucker Act concurrently "waives the Government's sovereign

immunity for those actions." Id. The statute does not, however, create a

substantive cause of action or right to recover money damages in the court of

Federal claims. Id. "[T)o come within the jurisdictional reach and the waiver of

the Tucker Act, a plaintiffmust identifu a separate source ofsubstantive law that

creates the right to money damages.', Id.

In other words, the source underlying the cause of action must be

money-mandating, in that it "'can fairly be interpreted as mandating compensation

by the Federal Government."' Llnited states v. Testan, 424 u.s.392,400 (1g76)

(quoting Eastport S.S. Corp. v. (Jnited States,372F.2d 1002, 1009 (Ct. Cl. 1967)

and citing Mosca v. United States,4lT F.2d 1382, 1386 (Ct. Cl. 1969)). If the

provision relied upon is found to be money-mandating, the plaintiff need not rely

upon a waiver of sovereign immunity beyond the Tucker Act. Huston v. tJnited

states,956F.2d259,261 (Fed. Cir. 1992)(citingUnitedstatesv. Mitchell,463

U.S. 206, 218 (1983). If, on the other hand, no money-mandating source supports

the cause of action, jurisdiction is lacking and this court must dismiss the action.

see id. at26l-62 (affirming the dismissal of a claim where the statute relied upon

by the plaintiff was not money-mandating).

c. RCFC t2(bx6)

It is well-settled that a complaint should be dismissed under RCFC 12(bX6)

"when the facts asserted by the claimant do not entitle him to a legal remedy."

Lindsay v. united states,295 F.3d,1252,1257 (Fed. Cir. 2002). When

considering a motion to dismiss brought under RCFC l2(bX6), "the allegations of

the complaint should be construed favorably to the pleader." Scheuer,416 U.S. at

236. The court must inquire, however, whether the complaint meets the

"plausibility" standard described by the United States Supreme Court, i.e., whether

it adequately states a claim and provides a "showing [of] any set of facts consistent

with the allegations in the complaint." Bell Atlantic Corp. v. Twombly,550 U.S.

544,560,563 (2007) (Twombly) (citations omitted). "To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

'state a claim to reliefthat is plausible on its face."' Ashcroft v. Iqbal,556 U.S.

662,678 (2009) (Iqbal) (quoting Twombly,550 U.S. at 570).

As the United States Court of Appeals for the Federal Circuit has explained:

We must presume that the facts are as alleged in the

complaint, and make all reasonable inferences in favor of

the plaintiff. To state a claim, the complaint must allege

facts plausibly suggesting (not merely consistent with) a

showing of entitlement to relief. The factual allegations

must be enough to raise a right to reliefabove the

speculative level. This does not require the plaintiffto

set out in detail the facts upon which the claim is based,

but enough facts to state a claim to reliefthat is plausible

on its face.

Cary v. United States,552 F.3d 1373, 1376 (Fed. Cir. 2009) (citations and internal

quotations omitted). When reading the complaint, however, the court must not

mistake legal conclusions for factual allegations which are entitled to favorable

inferences. See, e.g., Sioux Honey Ass'nv. Hartford Fire Ins. Co.,672 F.3d 1041,

1062 (Fed. Cir. 2012) ("The Supreme Court explained in Twombly that while [the

pleading standard] does not require 'detailed factual allegations,' it does require

more than 'labels and conclusions."' (citing Twombly,550 U.S. at 555)). In its

application, the plausibility standard has frequently been described as "context-

specific." See, e.g.,Iqbal,556 U.S. at 679 ("Determining whether a complaint

states a plausible claim for relief will . . . be a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.")

(citation omitted).

II. JurisdictionalAnalysis

A. Blacklisting Claim

Mr. Findley seeks relief from this court related to the "blacklisting" that

prevents him from owning or managing new low-income housing projects

subsidized by USDA. Compl. nll l7 ,34, 37 . He sought relief from the district

court related to his blacklisting, as well. Compl. Ex. B at 26. As plaintiff states in

his response brief,

lt]his case is about how Findley was unfairly blacklisted

and damaged, and how the govemment handled itself,

avoided the right and proper way to conduct business,

and has yet to make Findley whole.

Pl.'s Resp. at 1. Plaintiff seeks $15 billion dollars in punitive damages in this suit,

at least in part due to his blacklisting. Compl. Jf 39

As defendant argued in its opening brief, however,

Mr. Findley's complaint fails to identifu any provision of

law or contract upon which this Court could exercise

jurisdiction to entertain a challenge to Mr. Findley's

ineligibility to own or manage future USDA-funded

housing projects or to the USDA's regulations in this

regard.

Def.'s Mot. at 5. Plaintiff s sole response to this jurisdictional challenge is his

assertion that his request for money damages suffices to establish this court's

jurisdiction over his blacklisting claim. Pl.'s Resp. at 4. The bare claim for

money damages is not, however, a money-mandating source of law.

This court, under the Tucker Act, has no iurisdiction over plaintiff s

blacklisting claim. The court is not aware of any money-mandating statute or

regulation that is implicated by the USDA action complained of in plaintiff s

blacklisting claim, and plaintiff has not met his burden to identifr a source of law

which supports this court's jurisdiction over his claim. As the Federal Circuit has

explained, if

the source [of law] as alleged and pleaded is not

money-mandating, the court shall so declare, and shall

dismiss the cause for lack of jurisdiction, a Rule 1 2(bX I )

dismissal - the absence of a money-mandating source

being fatal to the court's jurisdiction under the Tucker

Act.

Fisher, 402F.3d at ll73.

Under controlling precedent, Mr. Findley's blacklisting

claim must be dismissed for lack of subject matter jurisdiction.

B. Breach of Contract Claim

Plaintiff of contract claim is founded on the USDA's failure to

s breach

provide rental assistance along with the underlying loan for Hurlock. Although

contract claims are normally within this court's subject matter jurisdiction, any

breach of contract claim based on USDA's failure to provide rental assistance to

Hurlock is barred by this court's statute of limitations. According to the

complaint, USDA refused Hurlock rental assistance beginning in 19g6. see, e.g.,

compl. tf 14 (asserting that Hurlock has been denied rental assistance for "31

years"); Pl.'s Resp. at 3 (noting the USDA's "refusal to give rental assistance to

Hurlock from 1986 to the present"). Thus, Hurlock's breach ofcontract claim

accrued in 1986 and is barred by this court's six-year statute of limitations. see 2g

u.s.c' $ 2501 (2012) ("Every claim of which the united States court of Federal

claims has jurisdiction shall be barred unless the petition thereon is filed within

six years after such claim first accrues."). Even if the breach of contract claim

regarding rental assistance could be considered to have accrued later in time.

plaintilf notes in the complaint that in 2005 usDA made it clear that properties

such as Hurlock would. never receive rental assistance. compl. 65. This later

Jf

accrual date of 2005 is also outside the six-year window of time for a suit filed in

this court in 2016. The court has no jurisdiction over plaintiffs breach ofcontract

claim because it is time-barred.

In addition, as defendant notes, Mr. Findley could not bring a suit to assert a

contract right that belongs to the partnership that owns Hurlock. The entity that

possesses those rights is "Hurlock Village Associates Limited Partnership,"

according to the loan documents attached to the complaint. Compl. Ex. E at 1.

Mr. Findley acknowledges that it is the Hurlock partnership that owns Hurlock,

not plaintiff individually. Id. n | . A pro se plaintiff may only represent himself or

a family member in this court. See RCFC 83.1(a)(3). The Hurlock partnership is

not a party or otherwise represented in this suit and its contract rights cannot be

asserted in this case.

Because Mr. Findley has not identified any contract with the United States

to which he is a party, there is no contract identified in the complaint which would

support a breach ofcontract claim in this lawsuit. Defendant therefore argues that

Mr. Findley lacks standing to bring this contract claim, and the court must agree.

See, e.g., Anderson v. United States,344 F.3d,1343, 1351 (Fed. Cir. 2003) (.,To

have standing to sue the sovereign on a contract claim, a plaintiff must be in

privity of contract with the United States." (citing Erictcson Air Crane Co. v.

United States, 731 F .2d 8 10, 8 l3 (Fed. Cir. l9g4)). Lack of standing requires

dismissal on jurisdictional grounds. See, e.g., Roclqt Mountain Helium, LLC v.

unired states,84l F.3d 1320,1324 (Fed. cir. 2016) (commenting that if a plaintiff

"lacked constitutional standing to assert its claim for breach of. . . [c]ontract[,]

that conclusion would supporr the jurisdictional dismissal" of the suit) (citing

Anderson,344F.3d at 1349). Thus, in addition to the claim's previously

discussed statute of limitations infirmity, because Mr. Findley lacks standing to

assert any contract claim in this suit, the breach of contract claim in the complaint

must be dismissed for lack of subject matter jurisdiction.

C. Regulatory Takings Claim

Plaintiff also characterizes USDA's refusal to provide Hurlock rental

assistance as a regulatory taking. Compl.llT5-77; pl.'s Resp. at l-3, 10. This

claim is also time-barred because the regulatory changes effecting the claimed

taking occurred, according to the complaint, in 2005. Compl. fll] 64-65. A takings

claim that accrued in 2005 and that is presented in a complaint filed in this court in

2016 is clearly in excess of the six-year statute of limitations and baned by

$ 2501. see supra. Any takings claim stated in the complaint must be dismissed

because it is untimely.

Further, plaintiff has not identified any property right that belonged to Mr.

Findley that could have been taken when USDA promulgated regulations

regarding rental assistance for housing developments like Hurlock in 2005. If any

entity possessed a property right to rental assistance for the tenants of Hurlock,

that would have been the Hurlock partnership, not Mr. Findley. Compl. Ex. E at l.

There is no property right to rental assistance identified in the complaint that

belongs to Mr. Findley as an individual. As with the breach of contract claim

stated in the complaint, see supra, Mr. Findley lacks standing to bring any

regulatory takings claim in this suit. See, e.g., Abbas v. United States,l24 Fed. Cl.

46, 53 (2015) (stating that "a plaintiff must show that he or she owned the property

alleged to have been taken at the time that the alleged takings occurred, to have

standing to bring a takings claim" (citing Cristina Inv. Corp. v. United States,40

Fed. Cl. 571, 580 (1998))), aff'd on other grounds,842F.3d l37l (Fed. Cir.

2016); cf. Williams v, United States,482F. App'x 580, 582 (Fed. Cir.2012)

(holding that the pro se plaintiff in that suit lacked standing to bring takings

claims in this court for any persons other than family members). Thus, in addition

to the claim's previously discussed statute of limitations infirmity, because Mr.

Findley lacks standing to bring the regulatory takings claim stated in the

complaint, this claim, too, must be dismissed for lack of subiect matter

jurisdiction.3

IU. Failure to State a Claim under RCFC 12(bX6)

Even if Mr. Findley had standing to assert claims on behalf of the Hurlock

partnership, and even if the statute of limitations did not apply to the claims stated

in the complaint, plaintiff fails to present plausible claims based upon rights

established by the loan agreement between USDA and the Hurlock partnership.

No contract provision has been identified which mandated the provision of rental

assistance to the Hurlock development. No violation of specific contract rights

has been identified in USDA's administration of the agreements with the Hurlock

partnership cited by plaintiff. No property right guaranteed by law has been

implicated by the regulatory changes addressed by plaintiff in his complaint.

3/ To the extent that Mr.

Findley asserts a claim based on due process violations,

defendant correctly notes that due process guarantees do not provide this court with jurisdiction

over a plaintiff s claims. See Def.'s Mot. at 4.

As defendant notes, this lawsuit is fundamentally at odds with the cases

relied upon by plaintiff. ln Cienega Gardens v. United States, 331 F.3d 1319,

1340 (Fed. Cir. 2003), legislation abrogated a specific right established by the

plaintiffs' contracts with the United States. Here, plaintiff has not identified any

specific contract provision establishing a right to rental assistance; instead, he

relies on general pronouncements in the Federal Register. See Compl. Ex. G.

Because plaintiff s claims lack any specific foundation in the language of the loan

agreement between USDA and the Hurlock partnership, the claims in this case

cannot be compared to those litigated in Cienega Gardens.

In Franconia Associates v. United States, 536 U.S. 129,143 (2002), another

case cited by plaintiff, the breach of contract in question was established by the

failure ofthe government to perform a specific obligation established under the

plaintiffs' contracts. No such performance obligation established by the specific

language of the loan agreement between the Hurlock partnership and USDA has

been identified here. Nor has any breach of such a performance obligation in the

Hurlock contract been identifred. Plaintiffs case citations are thus unavailins.

Because the allegations of the complaint do not plausibly establish any

breach ofcontract or any regulatory taking, plaintiffs contract and takings claims

would necessarily have been dismissed for failure to state a claim even ifthe court

could have exercised jurisdiction over them. See, e.g., Cary,552F.3d at 1376

("To state a claim, the complaint must allege facts plausibly suggesting (not

merely consistent with) a showing of entitlement to relief."). As for the

blacklisting claim, even if plaintiff had identified a money-mandating source of

law to support recovery on his blacklisting claim in this court, that claim, too, is

not plausible. USDA has the power, through the regulatory mechanisms outlined

by the parties, see Compl. flU 8, 17, 37; Def.'s Mot. at 5 (citing 7 C.F.R.

$$ 3560.55, 3560.102 (2016)); Pl.'s Resp. at 5, to exclude a manager of a project

in default from participating in new subsidized housing projects. Ifthe regulation

is unfair to small business owners, that is a matter for congress, not the couns, ro

address. No legal remedy for plaintiff s blacklisting claim would have been

available in this court because it is not plausible, even ifplaintiffhad been able to

establish this court's jurisdiction over his claim. Thus, all of plaintiff s claims

were susceptible to dismissal under RCFC 12(bX6), even if they had survived

defendant's jurisdictional challenges.

10

CONCLUSION

Accordingly, it is hereby ORDERED that:

(1) Defendant's Motion to Dismiss, filed August 9,2016, is GRANTED;

(2) The Clerk's Ofhce is directed to ENTER final judgment in favor of

defendant DISMISSING the complaint for lack of subject matter

jurisdiction, without prejudice; and,

(3) Each party shall bear its own costs.

ll