Bobka v. United States

ORI AL ~

3Jn tbe mtniteb <tCourt of eberal <tClaims

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No. 17-643C

(Filed: August 3, 2017)

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)

RICHARD J. BOBKA, ) Challenge to conviction and imprisonment;

) contractual claims; statutory and rule-

Plaintiff, ) based claims; jurisdiction

)

~ )

UNITED STATES,

)

)

FILED

) AUG - 3 2017

Defendant. )

) U.S. COURT OF

FEDERAL CLAIMS

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Richard J. Bobka,pro se, Estill, South Carolina.

Isaac B. Rosenberg, Trial Attorney, Commercial Litigation Branch, Civil Division,

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

were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman,

Jr., Director, and Patricia M . McCaithy, Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Richai·d J. Bobka, brings suit to challenge his allegedly unjust conviction and

imprisonment that resulted from criminal charges filed against him in the United States District

Court for the Middle District of Florida. Mr. Bobka pleaded guilty to multiple felony counts in

2012 and was sentenced to 180-months (15 years) imprisonment, but he now alleges he was

"forced" into entering contracts with the government while under duress and that such contracts

were used to convict him. He also alleges that the government violated numerous constitutional

amendments, criminal and civil statutes, and the Federal Rules of Civil Procedure, and that the

government engaged in tortious conduct. He seeks damages, a vacated sentence, and an

immediate release from prison, among other injunctive relief.

Pending before the court is the government's motion to dismiss plaintiffs complaint. For

the reasons stated, the government's motion to dismiss is granted pursuant to Rules 12(b)(l) and

12(b)(6) of the Rules of the Court of Federal Claims ("RCFC").

7017 1450 DODO 1346 3875

BACKGROUND

On Febmary 10, 2012, Mr. Bobka pied guilty to multiple felony counts for his

involvement in a "mortgage fraud conspirac[y]." See United States v. Cavallo, 790 F.3d 1202,

1210 & n.1 (11th Cir. 2015); Acceptance of Plea of Guilty and Adjudication of Guilt, United

States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012), ECF No. 491. He did so

through a "straight up plea" before the United States District Court for the Middle District of

Florida. Guilty Plea Minutes, United States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla.

Oct. 30, 2012), ECF No. 487. 1 He was thereafter sentenced to 180-months imprisonment and

ordered to pay approximately $22.8 million in restitution. Judgment at 3, 6, United States v.

Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Oct. 30, 2012), ECF No. 823. Three of the

approximately nineteen defendants involved in the conspiracy appealed their convictions, but

Mr. Bobka did not appeal his conviction or his sentence. See Cavallo, 790 F.3d at 1210.

Mr. Bobka filed suit in this coUlt on May 15, 2017, bringing claims for unjust conviction

and false imprisonment. See generally Campi. In support, Mr. Bobka alleges that he entered

into "a combination of express, adhesion, and implied contracts" with the government, and that

those contracts were "used to convict and imprison [him]." Comp!., 20. He fmther alleges that

the government "forced" him to enter into those purported contracts while he was under duress.

See, e.g., Comp!.,, 3, 7, 49. Therefore, according to Mr. Bobka, the alleged contracts that

formed the basis for his conviction and imprisonment should be considered "null and void."

Comp!. , 21; see also Campi. ii, 1, 3.

In challenging his conviction and imprisonment, Mr. Bobka alleges that the government

has violated seven constitutional amendments, specifically, the Fourth, Fifth (Due Process

Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection

Clauses) Amendments. Comp!., 23. He also invokes numerous criminal statutes, provisions of

the Civil Rights Act (codified at 42 U.S.C. §§ 1985-86), the statute governing the oath taken by

justices and judges (codified at 28 U .S.C. § 453), a provision of the Rehabilitation Act of 1973,

Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-18), and the Federal Rules of

Civil Procedure. See Comp!.,, 25-38. Additionally, he alleges that the government has

committed fraud, acted negligently, damaged his reputation, conspired against him, inflicted

emotional distress upon him, and abused him. See Comp!.,, 32, 40, 43. To remediate the

government's alleged wrongdoing, Mr. Bobka requests that the court (1) award him

approximately $47 million in compensatory and punitive damages, Comp!., 40, and (2) vacate

his conviction and order his immediate release, among other injunctive relief, see Comp!. at 16-

17.

1

Mr. Bobka pied guilty four days after the trial of three other defendants and himself had

begun. See Cavallo, 790 F.3d at 1210 n.l, 1237. The other three defendants were convicted

after a jury trial, and their appeal from those convictions was resolved by the Eleventh Circuit's

decision in Cavallo.

A number of other individuals were involved in the fraudulent scheme. "Fifteen of the

defendants' cohorts pied guilty either to the conspiracy count or to at least one substantive

count." Cavallo, 790 F.3d at 1210.

2

STANDARDS FOR DECISION

A. Jurisdiction

A plaintiff bears the burden of establishing jurisdiction by a preponderance of the

evidence, Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and the leniency

afforded prose litigants with respect to formalities does not relieve them of jurisdictional

requirements, Kelley v. Secretary, United States Dep 't ofLabor, 812 F.2d 1378, 1380 (Fed. Cir.

1987).

Pursuant to the Tucker Act, this comt has 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 to1t." 28

U.S.C. § 149l(a)(l). The Tucker Act waives sovereign immunity and allows a plaintiff to sue

the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but it

does not provide a plaintiff with substantive rights, United States v. Testan, 424 U.S. 392, 398

(1976). To establish jurisdiction, "a plaintiff must identify a separate source of substantive law

that creates the right to money damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed.

Cir. 2005) (en bane in relevant pmt) (citing Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).

B. Whether Plaintiff Has Stated a Plausible Claim

A defendant can seek dismissal under RCFC 12(b)( 6) if the complaint fails to state a

claim upon which the court can grant relief. Under that rule, a complaint must "contain

sufficient factual matter," which for the purpose of the motion the court assumes to be true, "to

'state a claim to reliefthat is plausible on its face."' Ashcroft v Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That rule is applied less

stringently when the complaint is filed by a prose plaintiff. Pieczenik v. Bayer Corp., 474 Fed.

Appx. 766, 770 (Fed. Cir. 2012) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)). In such

instances, the court should search the complaint and record "to see if plaintiff has a cause of

action somewhere displayed." Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969).

ANALYSIS

A. 28 US.C. § 1495

Mr. Bobka endeavors to invoke this court's jurisdiction by relying on 28 U.S.C. § 1495,

which provides the court with 'jurisdiction to render judgment upon any claim for damages by

any person unjustly convicted of an offense against the United States and imprisoned." See

Comp!. at I. A plaintiff bringing suit pursuant to 28 U.S.C. § 1495 must satisfy the conditions of

28 U.S.C. § 2513 by, mnong other requirements, alleging and proving that:

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

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not 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 ....

28 U.S.C. § 2513(a)(l). The resulting requirements under these paired statutes have "always

been strictly construed." Vincin v. United States, 468 F.2d 930, 933 (Ct. Cl. 1972) (citations

omitted). As a result, an unjust conviction and imprisonment claim must be established by either

a certificate or explicit finding of innocence granted by the court or a pardon. See Hadley v.

United States, 66 F. Supp. 140, 141 (Ct. Cl. 1946); see also Brickey v. United States, 116 Fed.

Cl. 71, 79 (2014). Such a certificate or explicit finding of innocence or pardon must either

expressly or by factual recitation state that the plaintiff has satisfied the requirements of Section

2513. See Andolschek v. United States, 77 F. Supp. 950, 951 (Ct. Cl. 1948); see also Sykes v.

United States, 105 Fed. Cl. 231, 233 (2012). "In acting on a claim predicated upon Sections

1495 and 2513, this court 'does not have the power to review and ove1turn convictions or to

review in detail the facts smrnunding a conviction or imprisonment.'" Sykes, 105 Fed. Cl. at 233

(quoting Zakiya v. United States, 79 Fed. Cl. 231, 234-35 (2007), ajf'd, 277 Fed. Appx. 985

(Fed. Cir. 2008)). Because Mr. Bobka has not alleged or established that he obtained a

ce1tificate or explicit finding of innocence or that he received a pardon in accord with Section

2513, his unjust conviction claim must be dismissed. That dismissal should be entered under

RCFC 12(b)(6) rather than RCFC 12(b)(l). See Engage Learning, Inc. v. Salazar, 660 F.3d

1346, 1354 (Fed. Cir. 2011) ("To the extent a successful claim against the government requires

compliance with all statutory elements of the claim, failure of proof of an element of the cause of

action means the p[laintiffl is not entitled to the relief he seeks. To conclude in such a case that

the p[laintiff] loses because the forum is 'without jurisdiction' is to obscure the natme of the

defect. It would be more accurate to conclude that the p[laintiff] has failed to prove the

necessary elements of a cause for which relief could be granted.") (quoting Spruill v. Merit Sys.

Prat. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992)); see also Sykes, 105 Fed. Cl. at 234 (citing and

quoting Engage Learning, 660 F.3d at 1354; Adair v. United States, 497 F.3d 1244, 1251 (Fed.

Cir. 2007); and Fisher, 402 F.3d at 1171-76).

B. Contract Claims

Mr. Bobka further alleges that he entered into express and implied contracts with the

government in connection with his conviction and imprisonment. See, e.g., Comp!.,, 1, 3, 7,

15-21. Claims for breach of contract typically fall within the court's jurisdiction pursuant to the

Tucker Act, see 28 U.S.C. § 1491(a)(l); Bussie v. United States, 96 Fed. Cl. 89, 97 (2011), ajf'd,

443 Fed. Appx. 542 (Fed. Cir. 2011), and there is generally a "presumption in the civil context

that a damages remedy will be available upon the breach of an agreement," Sanders v. United

States, 252 F.3d 1329, 1334 (Fed. Cir. 2001). Nonetheless, "contracts that are entirely concerned

with the conduct of parties in a criminal case, without a clear, unmistakable statement triggering

monetary liability, do not invoke Tucker Act jurisdiction." Higbie v. United States, 778 F.3d

990, 993 (Fed. Cir. 2015) (citation omitted); see also Sanders, 252 F.3d at 1334-35 (recognizing

that "a damages remedy is not ordinarily available" where the alleged agreement "is entirely

concerned with the conduct of the paities in a criminal case") (citing Kania v. United States, 650

F.2d 264, 268 (Ct. Cl. 1981)); Schweitzer v. United States, 82 Fed. Cl. 592, 596-97 (2008)

(finding that the court lacked jurisdiction over plaintiffs' "contract claims arising out of the use

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of plea agreements in the criminal justice system" because such agreements did not "'clearly and

unmistakably' subject[] the government to any monetary liability whatsoever for any breach")

(citing Sanders, 252 F.3d at 1335-36).

Here, Mr. Bobka pied guilty through a "straight up plea" in district court. Guilty Plea

Minutes, United States v. Babka, No. 8: 10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012); see also

Acceptance of Plea of Guilty and Adjudication of Guilt, United States v. Babka, No. 8:10-550-

EAK-MAP-4 (M.D. Fla. Feb. 10, 2012). His complaint in this court references a series of

alleged "contracts" in connection with that guilty plea and conviction, see, e.g., Comp!. iii! 1, 20,

but he fails to set forth any details or specific agreements that could subject the government to

monetary liability, as required by the Tucker Act, see Higbie, 778 F.3d at 993. He instead

supp mis his contract claims by alleging that the government's criminal prosecution established

"an implied or constructive trust relationship" between himself and the government, Comp!. if 9,

and that his incarceration has resulted in a contract that binds Mr. Bobka "to the government's

terms," Comp!. ii 15. This court, however, lacks jurisdiction over both constructive trust claims,

see Frank & Breslow, LLP v. United States, 43 Fed. Cl. 65, 68 (1999) (citations omitted), and

implied-in-law contract claims where a party alleges that "the law imposes a duty in order to

prevent injustice," International Data Prod. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.

Cir. 2007); see also Hercules Inc. v. United States, 516 U.S. 417, 423 (1996) (explaining that

Tucker Act jurisdiction "extends only to contracts either express or implied in fact, and not to

claims on contracts implied in law") (citations omitted). Mr. Bobka's contract claims therefore

fall outside the jurisdiction of this couti.

C. Constitutional Claims

Mr. Bobka also alleges that the government has violated the Fourth, Fifth (Due Process

Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection

Clauses) Amendments. Comp!. ii 23. Under the circumstances, these stand-alone constitutional

claims are not properly before this court because they are not money-mandating. See Brown v.

United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (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 couti lacks jurisdiction over

Sixth Amendment claims because the Sixth Amendment is not money-mandating) (citations

omitted), ajj"d, 217 F.3d 854 (Fed. Cir. 1999); Harris v. United States, 118 Fed. Cl. 180, 190

(2014) (ruling that claims under the Seventh Amendment are not properly brought in this court

because the Seventh Amendment is not money-mandating) (citation omitted), recons. denied,

No. 14-229C, 2014 WL 6853273 (Fed. Cl. Dec. 5, 2014); Trafny v. United States, 503 F.3d

1339, 1340 (Fed. Cir. 2007) (providing that the court "does not have jurisdiction over claims

arising under the Eighth Amendment, as the Eighth Amendment 'is not a money-mandating

provision."') (citations omitted); Fullard v. United States, 78 Fed. Cl. 294, 301 n.12 (2007)

(explaining that "the Eleventh Amendment has no application in this court"); LeBlanc v. United

States, 50 F .3d 1025, 1028 (Fed. Cir. 1995) (holding that the Equal Protection and Due Process

Clauses of the Fifth and Fourteenth Amendments do not provide "a sufficient basis for

jurisdiction because they do not mandate payment of money by the government") (citations

omitted).

5

D. Statutory and Rule-Based Claims

Mr. Bobka's additional claims based upon federal statutes or rules, which include

allegations related to criminal wrongdoing, the Civil Rights Act, judicial misconduct, the

Rehabilitation Act of 1973, and the Federal Rules of Civil Procedure, are jurisdictionally

unavailing. Mr. Bobka alleges violations of multiple criminal statutes, such as 18 U.S.C. § 1001,

which criminalizes false statements, see Comp!.'\['\[ 25-29, 34-35, but the court lacks jurisdiction

over these claims, see 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."). He also

attempts to invoke 42 U.S.C. §§ 1985 and 1986, Comp!.'\['\[ 31-32, 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)). Mr. Bobka's claim of judicial

misconduct based upon 28 U.S.C. § 453, which governs the oath for justices and judges, see

Comp!. '\[ 30, is also outside the jurisdiction of the court because that statute does not provide Mr.

Bobka with "an independent right to monetary damages," Hardin v. United States, No. 14-557C,

2014 WL 4724472, at *3 (Fed. Cl. Sept. 23, 2014) (citation omitted). Further, Mr. Bobka's

reliance on the Rehabilitation Act of 1973, see Comp!. if 33, is unavailing because "jurisdiction

for such claims lies exclusively with the district courts," Searles v. United States, 88 Fed. Cl.

801, 805 (2009) (citing cases). The court also lacks jurisdiction over claims based upon the

Federal Rules of Civil Procedure, as they are not money-mandating. See Young v. United States,

88 Fed. Cl. 283, 288 (2009), appeal dismissed, 367 Fed. Appx. 125 (Fed. Cir. 2009). Thus, none

of the statutes or rules cited by Mr. Bobka provide this court with jurisdiction.

E. Tort-Based Claims

Mr. Bobka also alleges that the government engaged in tortious conduct, e.g., fraud,

negligence, and defamation. See, e.g., Comp!.'\['\[ 32, 40, 43. This court, however, 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). To the extent that such claims fall within the Federal Tort

Claims Act ("FTCA"), see 28 U.S.C. §§ 2671-80; see also 28 U.S.C. § 1346(b), the "district

courts have exclusive jurisdiction to consider tort claims against the United States that fall within

the purview of the FTCA," Zhao v. United States, 91 Fed. Cl. 95, 100 (2010) (citing 28 U.S.C. §

1346(b); Wood v. United States, 961F.2d195, 197 (Fed. Cir. 1992)).

F Statute ofLimitations

Mr. Bobka's claims are also time-barred in part by 28 U.S.C. § 2501, which provides that

a claim must be "filed within six years after such claim first accrues." A cause of action first

accrues "when all the events which fix the government's alleged liability have occurred and the

plaintiff was or should have been aware of their existence." San Carlos Apache Tribe v. United

States, 639 F.3d 1346, 13 50 (Fed. Cir. 2011) (quoting Hop/and Band of Pomo Indians v. United

States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). Section 2501 is jurisdictional and carmot be tolled

for equitable reasons. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008).

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Here, Mr. Bobka alleges that the government's wrongdoing occurred "between January 1, 2010

and December 15, 2012." Comp!. if 24. Therefore, because he did not file suit until May 15,

2017, Mr. Bobka's claims are time-barred to the extent that such claims accrued before May 15,

2011.

G. Punitive Damages

Additionally, Mr. Bobka requests punitive damages, see Comp!. if 40, but the court lacks

jurisdiction to grant such a request, Bussie, 96 Fed. Cl. at 96 (citing Environmental Safety

Consultants, Inc. v. United States, 95 Fed. Cl. 77, 98 (2010) (in turn citing 28 U.S.C. § 1491(a);

Mastrolia v. United States, 91 Fed. Cl. 369, 382 (2010))).

H Injunctive Relief

Finally, Mr. Bobka requests that the court vacate his conviction and order his immediate

release, among other injunctive relief. See Comp!. at 16-17. The court does not have jurisdiction

to provide such a remedy. Taylor v. United States, 113 Fed. Cl. 171, 173 (2013) ("The Tucker

Act does not provide independent jurisdiction over .. , claims for equitable relief."). Even if Mr.

Bobka's request is construed as a petition for a writ of habeas corpus, the court is not "among

those courts empowered" to grant such a writ under the habeas statute, 28 U.S.C. § 2241. See

Ledford v. United States, 297 F.3d 13 78, 1381 (Fed. Cir. 2002); see also Joshua, 17 F.3d at 380

("[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district

courts or the clerks of district courts relating to proceedings before those courts.").

CONCLUSION

For the reasons stated, the government's motion to dismiss is GRANTED pursuant to

RCFC 12(b)(l) and 12(b)(6). The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Charles F. Letlow

Judge

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