Jarvis v. United States

claim

In the Um'ted States Court of Federal Claims

No. l7-762C

Filed October 18, 2017

NOT FOR PUBLICATION F| LED

) UCT 1 8 2017

DEREK N. JARVIS, ) U.s. coum OF

) FEDERAL CLA|MS

Plaintiff, )

) Pro Se; Rule 12(b)(l); Subject-Matter

v. ) Jurisdiction; fn Forma Pauperis.

)

THE UNITED STATES, )

)

Defendant. )

)

Derek N. Jarvi`s, Silver Spring, MD, plaintiff pro se.

Delisa M. Sarzchez, Trial Attorney, Tara K. Hogan, Assistant Director, Robert E.

K:`r.s'chman, Jr., Director, and Chac'lA. Reader, Acting Assistant Attorney General, Comrnercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for

defendant

MEMORANDUM OI’INION AND ORDER

GRIGGSBY, ludge

I. INTRODUCTION

ln this matter, plaintiff pro se, Derek N. Jarvis, challenges the United States District

Court for the District of Maryland’s dispositions of several civil actions that plaintiff has filed

before that court. See generally Compl. Speciflcally, plaintiff alleges that the actions of the

district court violated, among other things, the Due Process and Equal Protection Clauses of the

Fifth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983; 18

U.S.C. §§ 214-242; and 28 U.S.C. § 453. Compl. at im 4, 5, 31. The government has moved to

dismiss this matter for lack of subject-matter jurisdiction, pursuant to Rule lZ(b)(l) of the Rules

of the United States Court of F ederal Claims (“RCFC”). See generally Def. Mot. Plaintiff has

also moved to proceed in this matter iri forma paigperi.s'l See generally Pl. Mot. to Proceed fn

Forma Pauperis. F or the reasons set forth below, the Court GRANTS the government’s motion

to dismiss and GRANTS plaintiff’s motion to proceed in forma pauperis

II. FACTUAL AND PROCEDURAL BACKGR()UNDl

A. F actual Background

Plaintiff commenced this action on June 6, 2017. See generally Compl. Plaintiffs

complaint is difficult to follow. But, it appears that the gravamen of plaintiffs complaint is a

challenge of the United States District Court for the District of Maryland’s dispositions of

several civil actions that plaintiff has filed before that court See generally Compl.

As background, plaintiff has collectively filed approximately 36 cases in the United

States District Court for the Eastern District of Virginia, the United States District Court for the

District of Columbia, and the United States District Court for the District of l\/laryland since

2009. Def. l\/lot. at l. Approximately 17 of these matter have been filed by plaintiff in the

United States District Court for the District of Maryland. lal.

ln the complaint, plaintiff alleges that several district judges for the United States District

Court for the District of Maryland and other district court personnel have “fraudulently denied

[hirn] access to impartial justice as demonstrated in the order(s) in every one of plaintiffs cases.”

Coinpl. at il l{). Plaintiff also alleges that the district court judges have routinely dismissed his

cases, in violation of plaintiffs due process rights under the Fifth and Fourteenth Amendments

to the United States Constitution. Compl. at 1{1[ 4-5, lS, 39~40.

ln this regard, plaintiff contends that he vvas denied the right to proceed to the discovery

phases of his litigation, and to trial, in many of these cases. Cornpl. at jill 27, 31, 78. And so,

plaintiff contends that the judges presiding over those matters prejudiced him by allowing the

defendants to “conceal evidence,” thereby depriving plaintiff of his civil rights Compl. at M 31,

52, 61, 76.

As relief, plaintiff requests that the Couit:

l) Appoint a Grand Jury and prosecutor to investigate RICO violations

against the l\/laryland Court, 2) VOID all order(s) issued by the Court

in Maiyland by the district court judges, 3) submit this brief to the U.S.

Attorney‘s Ofl`ice for investigation and the DOJ, and 4) VOlD all

‘ The facts recited in this Mernorandum Opinion and Order are taken from plaintiffs complaint and the

exhibits attached thereto (“Compl.”); the government’s motion to dismiss (“Def. l\/lot.”); plaintiffs

opposition to the government’s motion to dismiss (“Pl. Resp.); the government’s reply in support of its

motion to dismiss (“Def. chly”) and plaintiffs sur-reply (Pl. Sur.”). Except where otherwise noted, the

facts recited herein are undisputed

order(s) by the Corrupt federal judges in l\/laryland as the order(s) are

Nullities, and were not based upon federal law.

Compl. at il 80.

B. Procedural Background

Plaintiff filed the complaint in this matter on lone 6, 2017. See generally Compl. On

.lune 6, 2017, plaintiff also filed a motion to proceed in forma pauperis See generally Pl. Mot.

to Proceed ln Forina Panperis.

On August 7, 2017, the government filed a motion to dismiss plaintiffs complaint for

lack of subject-matter jurisdiction, pursuant to RCFC 12(b)( l). See generally Def. l\/Iot. On

August 23, 2017, plaintiff filed a response and opposition to the government’s motion to dismiss.

See generally Pl. Resp. On September 5, 2017, the government filed a reply in support of its

motion to dismiss See generally Def. Reply. On September l3, 20l'l, plaintiff filed a motion

for leave to file a sur-reply and a sur-reply. See generally Sur. Reply. On September lS, 2017,

the Court granted plaintiffs motion for leave. See generally Order granting motion for leave.

These matters having been fully briefed, the Court addresses the pending motions.

III. STANDARDS OF REVIEW

A. Pro Se Litigants

Plaintiff is proceeding in this matter pro se, without the benefit of counsel And so, the

Court applies the pleadings requirements leniently. Berioni‘ v. GTE Lal)s., lnc., 535 F. App’x

919, 925-26 n.2 (Fed. Cir. 2013) (citing MeZea.l v. Sprinl Nexiel Corp., 501 F.3d 1354, l356

(Fed. Cir. 2007)). When determining Whether a complaint filed by a pro se plaintiff is sufficient

to survive a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs

than plaintiffs Who are represented by counsel See Haines v. Kerner, 404 U.S. 5 l9, 520 (1972)

(holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent

standards than formal pleadings drafted by lawyers”); Maithews v. Unired Siaies, 750 F.3d l320,

1322 (Fed. Cir. 2014) (citation omitted). But, there “is no duty on the part of the trial court to

create a claim which lthe plaintiffl has not spelled out in his pleadings.” Lengen v_ Unirecl

Siaies, 100 Fedi Cl. 317, 328 (20l l) (brackets existing', internal quotation omitted).

ln addition, while “a pro se plaintiff is held to a less stringent standard than that of a

plaintiff represented by an attorney, . . . the pro se plaintiff, nevettheless, bears the burden of

establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. Unilea’ States,

93 Fed. Cl. 163, 165 (2010) (eiting Taylor v. Uniiecl Sra)‘es, 303 F.3d 1357, l359 (Fed. Cir.

2002)). And so, the Court may excuse ambiguities, but not defects, in the complaint. Coll)ert v.

Unitecl Srales, No. 20l4-5029, 20l5 WL 2343578, at *l (Fed. Cir. May l8, 2015); see also

Denies v. Uniteal Stales, 52 Fed. Cl. 365, 368 (2002) (“[T]he leniency afforded pro se litigants

with respect to mere formalities does not relieve them of jurisdictional requirements.”) (citation

omitted).

B. Jurisdiction And RCFC lZ(b)(l)

lt is well-established that this Court’s subject-matter jurisdiction must be established

before the Court addresses the merits of a claim. Plains Coinrn. Bank v. Long Faniily Lancl &

Catrle Co., 554 U.S. 316, 324 (2008) (citing Steel Co. v. Cilizensfor a Beiter Env’l, 523 U.S. 83,

88-89 (1998) (stating that subject-matter jurisdiction is “a threshold question that must be

resolved . . . before proceeding to the merits.”)). When deciding a motion to dismiss upon the

ground that the Court does not possess subject-matter jurisdiction pursuant to RCFC l2(b)(l),

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. Eriekson. v. Parclus, 55l U.S. 89, 94 (2007);

see also RCFC lZ(b)(l). But, plaintiff bears the burden of establishing subject-matter

jurisdiction, and he must do so by a preponderance of the evidencel Reynola's v. Arniy & Air

Foree Excli. Serv., 846 F.2d 746, 748 (Fed. Cir. l988) (citation omitted). And so, should the

Court determine that “it lacks jurisdiction over the subject matter, it must dismiss the claim.”

lanham v. anna scales 72 rea er 274, 273 (2006) nitng acre iz(h)(s)).

ln this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and “possess[es] only that power authorized by Constitution and statute . . . .” Kokkonen v.

Giiarclian Life lns. Co. of Ani., 51l U.S. 375, 377 (1994). The Tucl<er Act grants the Court

jurisdiction over:

[A]ny 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.

23 U.s.c. § 1491(3)(1).

The Tucl<er Act is, however, a “jurisdictional statute; it does not create any substantive

right enforceable against the United States for money damages . . . . [T]he Act merely confers

jurisdiction upon lthe United States Court of Federal Claims] whenever the substantive right

exists.” United Sfafes v. Teslan, 424 U.S. 392, 398 (1976). And so, to pursue a substantive right

against the United States under the Tucl<er Act, a plaintiff must identify and plead a money-

mandating constitutional provision, statute, or regulation; an express or implied contract with the

United States', or an illegal exaction of money by the United States. Cabral v. United Srares, 317

F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United Srafes, 402 F.3d l167, 1172 (Fed.

Cir. 2005)); Nornian v. United Srares, 429 F.3d 1081, 1095 (Fed. Cir. 2005). “[A] statute or

regulation is money-mandating for jurisdictional purposes if it ‘can fairly be interpreted as

mandating compensation for damages sustained as a result of the breach of the duties lit]

impose[s].”’ Fislier, 402 F.3d at 1173 (quoting United Stales v. Milchell, 463 U.S. 206, 219

(1983)).

Specil'ically relevant to this matter, this Court “does not have jurisdiction to review the

decisions of district courts or the clerks of district courts relating to proceedings before those

courts.” .losliua v. United Slales, 17 l".3d 378, 380 (Fed. Cir. 1994)); see also Jones v. Unilecl

Siates, No. l5-l044, 2016 WL 447144, at 1 (Fed. Cl. Feb. 4, 2016), And so, the Court must

dismiss a claim seeking to review the decisions of district courts for lack of subject-matter

jurisdiction

IV. DISCUSSION

A. Thc Court Does Not Posscss Jurisdiction To Consider Plaintiff’s Claims

The government has moved to dismiss plaintiffs complaint for lack of subject-matter

jurisdiction upon the grounds that: (l) the Court may not consider plaintiffs challenge to the

actions of the United States District Court for the l)istrict of Maryland‘, (2) the Court may not

entertain plaintiffs claims against any party other than the United States', and (3) plaintiffs

constitutional, criminal law, Bivens, judicial misconduct, and civil rights claims are

jurisdictionally precluded by the Tucl<er Act. Def. l\/Iot. at 4-5; Def. Rep. at 2-3. F or the reasons

discussed below, the Court does not possess subject-matter jurisdiction to consider any of the

plaintiffs claims And so, the Court GRANTS the government’s motion to dismiss and

dismisses the complaint RCFC 12(b)(l).

1. The Court Does Not Possess Jurisdiction To Consider

Plaintiff’s Challenge ()f The District Court’s Deeisions

As an initial matter, to the extent that plaintiff seeks to challenge the district court’s

decisions to dismiss his cases, the Court does not possess subject-matter jurisdiction to consider

this claim. ln the complaint plaintiff alleges that the judges of the United States District Court

for the District of Maryland obstructed justice by dismissing his cases. Compl. at jill 25-30.

Specifically, plaintiff alleges that “federal judges, engaged in a ‘pattern and practice’ of

obstruction of justice tactics to prevent [him] from going to trial and even discovery on the

merits of his cases.” Compl. at il 27.

Plaintiff also alleges that several district judges for the United States District Court for

the District of l\/laryland and other district court personnel have “fraudulently denied [him]

access to impartial justice as demonstrated in the order(s) in every one of Plaintiffs cases.”

Compl. at ll 10. And so, plaintiff maintains in this action that the district court judges have

violated his due process and equal protection rights under the Fifth and Fourteenth Amendments

to the United States Constitution. Compl. at fill 4-5, 15, 39-40.

The United States Court of Appeals for the F ederal Circuit has long held that this Court

does not possess subject-matter jurisdiction to review the decisions of district courts relating to

proceedings before those courts. Joslnia, 17 F.3d at 380 (stating that the Court does not have

jurisdiction to review the decisions of district courts or the clerks of district courts relating to

proceedings before those courts); Mora v. United Stares, ll8 Fed. Cl. 713, 7l6 (20l4) (“['l`]his

court does not have jurisdiction to review the decisions of state courts, federal bankruptcy courts,

federal district courts, or federal circuit courts of appeals.”); see also Verea'a., LTDA. v. Uniiea’

Slaies, 271 F.3d 1367, 1375 (Fed. Cir. 200l) (explaining that this Court is not an appellate

tribunal, and does not have jurisdiction to review the decisions of district courts). That is

precisely the action that plaintiff seeks in the complaint And so, the Court must dismiss

plaintiffs claim challenging the actions of the district court for lack of subject-matter

jurisdiction RCFC l2(b)(l).

2. The Court May Not Consider Plaintii'f’s Claims

Against Parties Other Than The United States

This Court is also without jurisdiction to consider plaintiffs claims against the district

court judges and other district court personnel named in the complaint See Compl. at 11 l0. lt is

well-established that the United States is the only proper defendant in cases brought in this

Court Pilailin v_ United Slales, 97 Fed. Cl. 71, 75 (2011); Siephenson v. United States, 58 Fed.

Cl. 186, 190 (2003) (“l`T]he only proper defendant for any matter before this court is the United

States, not its officers, nor any other individual.”) (emphasis original). And so, the Court does

not possess subject-matter jurisdiction to consider plaintiffs claims against individual judges and

court personnel Uniieo.' States v. Slzerwooel, 312 U.S. 584, 588 (l94l) (stating that the Court of

Federal Claims “is without jurisdiction of any suit brought against private parties . . . .”);

Ana'erson v. Uniiea’ Siates, 117 Fed. Cl. 330, 331 (20l4) (stating that “[tjhis court does not have

jurisdiction over any claims alleged against states, localities, state and local government entities,

or state and local government officials and employees; jurisdiction only extends to suits against

the United States itself.”).

ln addition, plaintiff may not rely upon Bivens v. Six Unlcnown Naniea’ Agenrs ofllie Fecl.

Bnrean ofNarcoiies, 403 U.S. 388 (l 971), to bring his claims against the court officials named

in the complaint See Compl. at ll 2; see also Pl. Resp. at 7. The United States Court of Appeals

for the Federal Circuit has held that the Tucker Act does not grant the Court jurisdiction to

consider such claims Brown v. United Siaies, 105 F.3d 62l, 624 (Ped. Cir. 1997). And so, the

Court must also dismiss plaintiffs Bivens claims.

3. The Court l\/Iay Not Consider Plaintiff’s Criminal Law Claims

ln addition, this Court does not possess subject-matter jurisdiction to consider plaintiffs

criminal law claims See Cooper v. United States, l04 Fed. Cl. 306, 311-12 (2012) (holding that

this Court cannot review criminal matters); Joslina, 17 F.3d at 379 (“The court has no

jurisdiction to adjudicate any claims whatsoever under the federal criminal code . . . .”). A

careful reading of the complaint demonstrates that plaintiff alleges violations of several federal

criminal statutes, including, l8 U.S.C. § 241 (conspiracy against rights) and 18 U.S.C. § 242

(deprivation of rights under the color of law). Compl. at jul 19, 2l-23, 24. Because the Court

does not possess subject-matter jurisdiction to consider such claims, the Court must also dismiss

plaintiffs criminal law claims RCFC l2(b)(l).

4. Plaintiff’s Constitutional Claims Are Also Jurisdictionally Prccluded

The Court is similarly without jurisdiction to entertain plaintiff s constitutional claims.

ln the complaint plaintiff alleges due process and equal protection claims under the Fifth and

13 ourteenth Amendments. See generally Compl. But, this Court does not possess jurisdiction to

consider claims based upon the Fifth Amendment’s Due Process Clause, as this provision is not a

money-mandating provision of law. LeBlanc v. Uniiecl States, 50 F.3d 1025, 1028 (Fed Cir.

1995) (frnding that the Due Process and Equal Protection Clauses of the Fourteenth Amendment

do not constitute “a sufficient basis forjurisdiction because they do not mandate payment of

money by the government”)', see also Mchllough v. United States, 76 Fed. Cl. 1, 4 (2006)

(“['l`]he Fifth Amendment is not a source that mandates the payment of money to plaintiff”).

'l`he Court is similarly without jurisdiction to consider plaintiffs equal protection and due

process claims brought pursuant to the Fourteenth Amendment. See LeBlane, 50 F.3d at 1028;

see also Qaailes v. United States, 25 Cl. Ct. 659, 664, ajj”a', 979 F.2d 216 (Fed. Cir. 1992) (“This

court does not have jurisdiction . . . because neither the due process or equal protection clauses of

the Constitution ‘obligate the United States to pay money damages.’”) (citation omitted). And

so, the Court must also dismiss these claims RCFC 12(b)(l).

5. The Other Statutes Reiied Upon By Plalntiff Do Not Confer Jurisdiction

Lastly, the Court is also without jurisdiction to consider plaintiffs civil rights claims

See 42 U.S.C. § 198l. In the complaint, plaintiff alleges that the district judges who presided

over his a cases should be held liable under 42 U.S.C. § 1983. This Court has long recognized

that civil rights claims brought pursuant to Section 1983 may only be brought in a United States

district court See Marlin v. United States, 63 Fed. Cl. 475, 476 (2005) (stating that the United

States Court of 17 ederal Claims “does not have jurisdiction to consider civil rights claims brought

pursuant to 42 U.S.C. §§ 198l, 1983, or 1985 because jurisdiction over claims arising under the

Civil Rights Act resides exclusively in the district courts”).

'f his Court similarly does not possess subject-matter jurisdiction to consider plaintiffs

allegations of judicial misconduct under 28 U.S.C. § 453. See Pl. Resp. at 4. As the government

correctly observes in its reply brief, Section 453 is not a money-mandating source of law and this

statute cannot be relied upon by plaintiff to establish jurisdiction under the Tucker Act. See

Harclin v. United States, No. 14-557C, 2014 WL 4724472, at *3 (Fed. Cl. Sept. 23, 2014)

(“Claims for alleged judicial misconduct under 28 U.S.C. § 455 are not money-mandating and

therefore cannot serve as a basis for jurisdiction in this court.”) (citation omitted). Given this,

the Court must dismiss plaintiffs civil rights and judicial misconduct claims RCFC 12(b)(l).

B. Plaintiff’s Motion To Proceed In Forma

Pauperis Satisfies The Statutory Requirement

As a final matter, plaintiff has moved to proceed in forma pauperis in this matter. See

generally Pl. l\/lot. to Proceed ln Forma Paaperis. This Court may authorize the commencement

of a lawsuit Without prepayment of fees When a plaintiff submits an affidavit including a

statement of all assets, a declaration that he or she is unable to pay the fees, and a statement of

the nature of the action and a belief that he or she is entitled to redress See 28 U.S.C. §

l915(a)(1); see also 28 U.S.C. § 2503(d).2

A'fter reviewing plaintiff s submission, the Court finds that plaintiff has satisfied the

statutory requirements to proceed in forma pauperis And so, the Court grants plaintiffs motion

to proceed informa pauperis for the limited purpose of resolving the jurisdictional issues raised

in the government’s motion to dismiss

V. C()NCLUSION

ln surn, When construed in the light most favorable to plaintiffJ plaintiff fails to

demonstrate that the Court possesses subject-matter jurisdiction to consider any of his claims in

this matter. And so, the Court must dismiss the complaint for lack of subject-matter jurisdiction

RCFC l2(b)(l).

ln light of plaintiffs pro se status_and plaintiffs representation that he is unable to pay

the Court’s filing fee_the Court grants plaintiffs request to proceed in this matter iri forma

pauperis for the limited purpose of resolving the jurisdictional issues raised by the government’s

motion to dismiss

And so, for the foregoing reasons, the Court:

1. GRANTS the government’s motion to dismiss; and

2. GRANTS plaintiffs motion to proceed informal pauperis

2 The Government does not oppose plaintiffs motion to proceed in forma pauperis See generally Def.

Resp. to Pl. Mot. to Proceed ]r: Forma Paaperis, June 23, 2017.

The Clerk’s Offlce is directed to ENTER final judgment in favor of the government,

DISMISSING the complaintl

No Costs

IT IS SO ORDERED.

10