Shelden v. United States

ORIGINAL

3Jn tbe Wniteb ~tates QCourt of jfeberal QClaims

No. 16-1281C

(Filed: February 24, 2017)

(NOT TO BE PUBLISHED)

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STEVEN SHELDEN, et al., ) FILED

)

Plain tiffs, ) FEB 2 4 2017

) U.S. COURT OF

v. ) FEDERAL CLAIMS

)

UNITED STATES, )

)

Defendant. )

)

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Steven Shelden, pro se, Goodyear, Arizona.

Borislav Kushnir, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Depaitment of Justice, Washington, D.C., for defendant. With him on the briefs

were Benjamin C. Mizer, former Principal Deputy Assistant Attorney General, Civil Division,

and Robe1t E. Kirschman, Jr., Director, and L. Misha Preheim, Assistant Director, Commercial

Litigation Branch, Civil Division, United States Depaitment of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Steven Shelden, brings suit ostensibly against 22 defendants, including

government agencies, judges, court clerks, senators, individual states, sheriff's departments, and

corporations. 1 Plaintiff raises a broad range of claims, specifically alleging that defendants have

1

Mr. Shelden states that he is an executive officer of Innoventureica, LLC, and was

formerly the chief executive officer of Alzcog Therapeutics, LLC, both of which are also named

as plaintiffs. Comp!.~ 3a. Thatjoinder is improper because "[a]n individual who is not an

attorney ... may not represent a corporation, an entity, or any other person in any proceeding

before this comt." Rule 83.1(a)(3) of the Rules of the Court of Federal Claims ("RCFC"). This

rule is one of long standing. See Talasila, Inc. v. United States, 240 F.3d 1064, 1067 (Fed. Cir.

2001) (considering the predecessor to RCFC 83. l(a)).

violated constitutional and statutory provisions, breached a contract, committed torts and

criminal acts, and engaged in general misconduct, among other allegations. Pending before the

court is the government's motion to dismiss for lack of subject matter jurisdiction pursuant to

RCFC 12(b)(l), or, alternatively, for failure to state a claim upon which relief can be granted

pursuant to RCFC 12(b)(6). Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 8. For the reasons

stated, the government's motion is granted.

BACKGROUND

On October 5, 2016, Mr. Shelden filed his complaint naming the numerous defendants.

See Comp!. at 1-2. He describes his suit as one "for crimes against humanity." Comp!. at 1. At

the outset, Mr. Shelden recites a litany of grievances, alleging that various senators have failed to

investigate criminal activity and committed defamation, federal judges have obstructed justice

and disregarded "anti-trust and corporate laws," and federal agencies and judges have committed

fraud. Comp!., 2b. He further alleges that individual states and sheriffs departments, as well

as the Federal Bureau oflnvestigation and United States Department of Justice, have "repeatedly

violat[ed] [his] constitutional rights ... for over 35 years." Comp!. if 3b. Additionally, Mr.

Shelden includes factual allegations regarding his personal circumstances, including references

to improper medical treatment received, Comp!., ! la, applications submitted to universities,

Comp!. ii, 38-39, and prior divorce proceedings, Comp!., 40.

In his first claim for relief, Mr. Shelden alleges that defendants have violated the First,

Fomth, Fifth, Sixth, Seventh, Eighth, and Fomteenth Amendments to the United States

Constitution. See Comp!.,, 93-100, 108, 303; Pis.' Resp. to Def.'s Mot. to Dismiss ("Pis.'

Opp'n") at 11, ECF No. 9. Mr. Shelden states that defendants violated his First Amendment

rights by interfering with his "freedom of expression in the press or mass communication"

regarding his businesses. Comp!.,, 94-95. He premises a Fomth Amendment claim on the

grounds that defendants have denied him privacy, taken his documents, and "broken into" his car

and home. Comp!. ,, 96-97. He also alleges that defendants contravened the Takings Clause of

the Fifth Amendment due to the "loss of [a] National Institute of Health ... grant," which he

allegedly lost because of a "conspiracy" and "malice spanning 35 years." Pls.' Opp'n at 4. Mr.

Shelden further raises a claim of denial of due process under the Fifth Amendment, Comp!. ,,[

98-99, a claim of cruel and unusual punishment under the Eighth Amendment, Comp!., 99, a

claim founded on "[f]reedom from [f]alse or [m]alicious [p]rosecution" based upon the Sixth

Amendment, Comp!. , 100, a claim of denial of equal protection under the Fourteenth

Amendment, Pls.' Opp'n at 11, and references generally to contravention of the Sixth

Amendment, Comp!.,, 93, 108. Additionally, he contends that he has been falsely charged with

multiple crimes. See Comp!.,, 102-07.

In his second claim, Mr. Shelden alleges that defendants, in the course of the past 34

years, have failed "to protect minorit[ies] and retaliation against witnesses," refused to enforce

Additionally, the court lacks jurisdiction over any of the 22 named defendants in Mr.

Shelden's complaint because the United States is the only proper defendant in this court. See

United States v. Sherwood, 312 U.S. 584, 588 (1941); Stephenson v. United States, 58 Fed. Cl.

186, 190 (2003).

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various laws, committed "slander and defamation" against plaintiff, and engaged in "assaults and

harassment." Comp!. 'I! 111. In his third and final claim, Mr. Shelden alleges that particular

corporations have "perpetuate[d] harmful and malicious 'misinformation"' about him,

"obstruct[ed] and perverted justice," caused him to incur losses by "thwarting" his business, and

committed "criminal and illegal acts." Comp!. 'I! 150.

As a result of defendants' alleged conduct, Mr. Shelden requests $75.1 billion in

damages. Comp!. ii 302. He also seeks injunctive relief by requesting that the court enforce a

previous order in a divorce case, remove prior accusations and charges brought against him,

assist him in acquiring a passport, grant him access to records held by corporations in the United

States, and provide general injunctive relief "due to loss of past and present health insurance,

harm to business reputation, [and] loss of earning capacity." See Comp!. 'l!'l! 309-10, 314, 317. 2

ST AND ARDS FOR DECISION

As plaintiff, Mr. Shelden has the burden of establishing jurisdiction. See Reynolds v.

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

this court with jurisdiction over "any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive depaitment, or upon any

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

cases not sounding in tort." 28 U.S.C. § 149l(a)(l). However, the Tucker Act does not provide

a plaintiff with any substantive rights. United States v. Testan, 424 U.S. 392, 398 (1976). To

perfect jurisdiction under the Tucker Act, "a plaintiff must identify a separate source of

substantive law that creates the right to money dainages." Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005) (en bane in relevant pait) (citing United States v. Mitchell, 463 U.S.

206, 216 (1983); Testan, 424 U.S. at 398).

In evaluating a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the

court examines whether the complaint "contain[s] 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)

2

Mr. Shelden also filed a notice of related cases, indicating that he has filed nine

additional lawsuits prior to bringing the suit presently before this court. Notice of Related Cases

(Oct. 5, 2016), ECF No. 3. Notably, last year plaintiff filed suit in the United States District

Court for the District of Columbia against 13 defendants, comprising government agencies,

judges, sheriffs departments, and individual states. See generally Shelden v. United States Dep 't

ofJustice, No. 16-590, Comp!. (D.D.C. Mar. 30, 2016) ("District Court Comp!."). These 13

defendants are all named defendants in this suit as well. Additionally, plaintiffs complaint in

the district court is substantially similar to the complaint presently before this court. Both

complaints use nearly identical language to allege "crimes against humanity" and unlawful

activity, such as fraud, obstruction of justice, and defamation. Compare District Court Comp!. 'I!

2b, with Comp!. 'I! 2b. The district court dismissed plaintiffs complaint, describing it as "a

mishmash of umelated and bizaiTe allegations" and stating that the court could not "identify any

factual contentions that are comprehensible and potentially credible." See Shelden v. United

States Dep 't ofJustice, No. 16-590, Mem. Op. at 1-2 (D.D.C. Mar. 31, 2016) ("District Court

Mem.").

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(quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To avoid dismissal, the facts

alleged "must be enough to raise a right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if doubtful in fact)." Kam-Almaz v. United

States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555). The court

must accept all factual allegations in the complaint as true and draw "all reasonable inferences in

favor of the non-movant," Sommers Oil Co. v. United States, 241F.3d1375, 1378 (Fed. Cir.

2001) (internal citations omitted), but it need not accept legal conclusions, Rack Room Shoes v.

United States, 718 F.3d 1370, 1376 (Fed. Cir. 2013) (citing Iqbal, 556 U.S. at 678).

ANALYSIS

Mr. Shelden first alleges numerous constitutional violations, but the court lacks

jurisdiction to address these allegations. In bringing his constitutional claims, Mr. Shelden relies

on Bivens v. Six Unknown Named Agents of Fed. Bureau ofNarcotics, 403 U.S. 388 (1971). See

Comp!. if 109. In Bivens, the Supreme Court held that in certain circumstances, a plaintiff may

bring a claim against government officials in their individual capacities for violations of the

plaintiffs constitutional rights. See Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997)

(citing Bivens, 403 U.S. 388). Nonetheless, the court lacks jurisdiction over Bivens claims

because the Tucker Act does not provide the court with jurisdiction over claims against

individual federal officials. See id at 624 (citing 28 U.S.C. § 1491(a)). Additionally, Mr.

Shelden's stand-alone constitutional claims citing the First, Fourth, Sixth, Seventh, Eighth, and

Fourteenth Amendments are not properly before this court because those amendments are not

money-mandating. See United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) ("[T]he

[F]irst [A]mendment, standing alone, cannot be so interpreted to command the payment of

money.") (citations omitted); Brown, 105 F.3d at 623 (holding that the Fourth Amendment does

not mandate payment and therefore such claims are not within the jurisdiction of the court)

(citing Mitchell, 463 U.S. at 218; Murray v. United States, 817 F.2d 1580, 1582-83 (Fed. Cir.

1987)); Milas v. United States, 42 Fed. Cl. 704, 710 (1999) (holding that the court lacks

jurisdiction over Sixth Amendment claims because the Sixth Amendment is not money-

mandating) (citations omitted), aff'd, 217 F.3d 854 (Fed. Cir. 1999); Harris v. United States, 118

Fed. Cl. 180, 190 (2014) (holding that claims under the Seventh Amendment are not properly

brought in this court because that amendment is not a money-mandating provision); Trafny v.

United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The Court of Federal Claims does not

have jurisdiction over claims arising under the Eighth Amendment as the Eighth Amendment 'is

not a money-mandating provision."') (citations omitted); Le Blanc v. United States, 50 F.3d 1025,

1028 (Fed. Cir. 1995) (holding that the Equal Protection and Due Process Clauses of the

Fourteenth Amendment do not provide "a sufficient basis for jurisdiction because they do not

mandate payment of money by the government") (citations omitted).

Similarly, the court does not have jurisdiction over Mr. Shelden's due process claim

under the Fifth Amendment. See LeBlanc, 50 F.3d at 1028. And, although the court generally

has jurisdiction over Fifth Amendment claims brought under the Takings Clause, the court lacks

jurisdiction here because Mr. Shelden's takings claim spans 35 years and the particular property

4

alleged to have been taken has not been identified with specificity; 3 thus, the six-year statute of

limitations has expired. See Energy Sec. ofAm. Corp. v. United States, 86 Fed. Cl. 554, 559-61

(2009) (dismissing plaintiffs' takings claim because, among other reasons, plaintiffs failed to file

suit within six years of when the claim accrued) (citing 28 U.S.C. § 2501), aff'd, 356 Fed. Appx.

414 (Fed. Cir. 2009). 4

Further, Mr. Shelden's statutory claims are not properly before this court. Mr. Shelden

attempts to invoke 42 U.S.C. § 1983, Comp!. ii 116, but "jurisdiction over claims arising under

the Civil Rights Act resides exclusively in the district courts," Hardin v. United States, 123 Fed.

Cl. 667, 671 (2015) (quoting Marlin v. United States, 63 Fed. Cl. 475, 476 (2005), appeal

dismissed, 146 Fed. Appx. 491 (Fed. Cir. 2005)). He also mentions antitrust violations, see

Comp!. il 2b; Pls.' Opp'n at 3, but "[c ]!aims for violations of the antitrust laws are not within the

scope of the Tucker Act," Smith v. United States, 34 Fed. Cl. 313, 321 (1995), appeal dismissed,

91F.3d165 (Fed. Cir. 1996). Overall, Mr. Shelden simply fails to identify any money-

mandating source of law that could provide the court with jurisdiction under the Tucker Act.

Mr. Shelden also attempts to bring his claims within the jurisdiction of the court by citing

the Contract Disputes Act ("CDA"), Pub. L. No. 95-563, 92 Stat. 2383 (1978), as now recodified

at 41 U.S.C. §§ 7101-7109. See Comp!. ii 32b. He specifically claims that a contract arose with

the federal government because the United States is "a free-enterprise country with

[c ]onstitutional and statu[]tory protections," which allegedly entitles Mr. Shelden "to freedom to

operate." Comp!. ii 32b. Mr. Shelden fails to include any factual allegations that could support

such a contract. While the Tucker Act provides this court with jurisdiction "to render judgment

upon any claim by or against, or dispute with, a contractor arising under section 7104(b)(l)" of

the CDA when the contractor first submits an administrative claim, 28 U.S.C. § 149l(a)(2), Mr.

Shelden's alleged "freedom to operate" does not provide any basis for a contract with the

government. 5

3 As the government notes, Mr. Shelden's claim merely refers to "a Program

Announcement that generally invites businesses to submit Small Business Innovation Research

grant applications." Def.'s Reply in Support ofDef.'s Mot. to Dismiss ("Def.'s Reply") at 2,

ECF No. 11. Mr. Shelden has not provided any factual allegations regarding the program or his

grant application, and has thus failed to establish a property interest that could provide this court

with jurisdiction.

4There is a narrow exception to the six-year statute of limitations where "the tunning of

the statute will be suspended when an accrual date has been ascertained, but plaintiff does not

know of his claim." Energy Sec. of Am. Corp., 86 Fed. Cl. at 559 (quoting Japanese War Notes

Claimants Ass'n of Philippines, Inc. v. United States, 373 F.2d 356, 358-59 (Ct. Cl. 1967)). Mr.

Shelden's vague reference to a grant he allegedly did not receive due to 35 years of misconduct

by defendants, see Pis.' Opp 'n at 4, fails to invoke this limited exception.

5Even if the court did have jurisdiction, the contract claim would be dismissed under

RCFC 12(b)(6) for failure to state a claim. The elements of a valid contract with the government

include: "(l) mutuality of intent to contract; (2) consideration; (3) an unambiguous offer and

acceptance; and (4) actual authority on the part of the government's representative to bind the

government." Flex/ab, L.L.C. v. United States, 424 F.3d 1254, 1265 (Fed. Cir. 2005) (citing

5

Mr. Shelden's additional claims, which include allegations related to tortious conduct,

criminal wrongdoing, and judicial misconduct, are also jurisdictionally unavailing. Mr. Shelden

raises numerous allegations based in tort, such as defamation and slander. See, e.g., Comp!. ~ 2b.

In doing so, he relies on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80; see also

28 U.S.C. § 1346(b). See Comp!. ii 112. The court does not have jurisdiction over allegations

based in tort, Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.

2008), and the "district courts have exclusive jurisdiction to consider t01t claims against the

United States that fall within the purview of the FTCA," Zhao v. United States, 91 Fed. Cl. 95,

100 (201 O)(citing 28 U.S.C. § 1346(b); Wood v. United States, 961 F.2d 195, 197 (Fed. Cir.

1992)). Similarly, the court lacks jurisdiction over Mr. Shelden's criminal allegations, Joshua v.

United States, 17 F.3d 378, 379 (Fed. Cir. 1994) ("The court has no jurisdiction to adjudicate any

claims whatsoever under the federal criminal code."), and his claims of judicial wrongdoing, see

Uzamere v. United States, Nos. 10-585C & 10-591C, 2010 WL 3528897, at *3 (Fed. Cl. Sept. 3,

2010) ("Claims for alleged judicial misconduct ... are not money-mandating and therefore

cannot serve as a basis for jurisdiction in this court.").

Finally, Mr. Shelden's various requests for injunctive relief, see Comp!. ilil 309-10, 314,

317, are not properly before the court because "[t]he Tucker Act does not provide independent

jurisdiction over ... claims for equitable relief," Taylor v. United States, 113 Fed. Cl. 171, 173

(2013). 6

Ultimately, Mr. Shelden raises numerous allegations of wrongdoing, but none of his

allegations or claims are within the jurisdiction of this court.

Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en bane)). In emphasizing his

"freedom to operate," Mr. Shelden has not provided a factual basis for any of these four required

elements.

6The government also asse1ts that Mr. Shelden's claims are precluded under the doctrine

ofresjudicata, which is an affirmative defense. Def.'s Mot. at 7-8. This doctrine provides that

"a judgment on the merits in a prior suit bars a second suit involving the same parties or their

privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326

n.5 (1979). In determining ifa claim is barred by resjudicata, the court applies a three-part test:

"whether (1) there is identity of parties (or their privies); (2) there has been an earlier final

judgment on the merits of a claim; and (3) the second claim is based on the same set of

transactional facts as the first." Sikorsky Aircraft Corp. v. United States, 122 Fed. Cl. 711, 720

(2015) (quoting Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1324 (Fed. Cir. 2008)).

Plaintiffapreviously brought claims in the district cou1t against 13 defendants, all of which are

named defendants here, and plaintiffs' complaint in the district court was dismissed on the

merits. See generally District Court Comp!.; District Comt Mem. The allegations in the district

court complaint are based on many of the same facts as the allegations before this comt, see, e.g.,

District Court Comp!. ~ 1O; Comp!. ~ 10, although Mr. Shelden has alleged some new facts and

presented additional claims in his case in this court. Because the court does not have jurisdiction

over plaintiffs claims for the reasons discussed supra, the comt need not address whether the

complaint in this comt is based on the same set of transactional facts as the prior complaint in

district court, such that res judicata would apply.

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CONCLUSION

For the reasons stated, the government's motion to dismiss is GRANTED. The clerk

shall enter judgment in accord with this disposition.

No costs.

c~

It is so ORDERED.

Judge

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