Straw v. United States

,,

Jfn tbe Wniteb ~tates (ourt of jfeberal QCiaim~

No. 17-1082C

December 6, 2017

FILED

DEC - 6 2017

******************* * U.S. COURT OF

ANDREW U. D. STRAW, * FEDERAL CLAIMS

*

Plaintiff, * Motion to Dismiss; In Forma

* Pauperis; Judicial Takings;

v. * Americans with Disability Act;

UNITED STATES, * 28 u.s.c. § 1500

*

Defendant. *

*

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

Andrew U. D. Straw, Schaumburg, IL, prose.

John Sinclair Groat, Trial Attorney, Commercial Litigation Branch, Civil Division,

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

Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,

Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and

Chad A. Readier, Acting Assistant Attorney General.

OPINION

HORN, J.

On August 9, 2017, pro se plaintiff Andrew U. D. Straw, according to his

description, "a disabled lawyer," filed a complaint with this court in the above-captioned

case. Plaintiff separately filed an Application to Proceed !D. Forma Pauperis that same

day.

In his complaint, plaintiff seeks $3,000,000.00 in compensatory damages from the

United States "due to the Fifth Amendment Private Personal Property Taking of 3 federal

law licenses as part of a conspiracy to deprive me of rights I have under the ADA

[Americans with Disabilities Act of 1990], Titles II and V . .. ." (emphasis in original).

According to plaintiff, the alleged conspiracy stems from events which occurred during

plaintiff's employment with the Indiana Supreme Court. According to the complaint, in

2001, plaintiff allegedly broke his pelvis and both of his legs driving to the Indiana

Supreme Court for work. Plaintiff further alleges that the Indiana Supreme Court has

continually discriminated against him since 2001 and, that in an attempt to make plaintiff

quit his job, "took away" plaintiff's "handicap parking close [sic] to the office, an

7017 1450 DODD 13 46 0607

accommodation [plaintiff] needed after [his] car accident." In 2014, plaintiff states that he

complained to the "ADA Coordinator of the Indiana Supreme Court," who, according to

plaintiff, "immediately retaliated" against plaintiff, "attacking" plaintiff's disabilities,

"disability work, and even [plaintiff's] work helping Ukrainian refugees from the war with

Russia." According to plaintiff, the "disciplinary process then lasted 27 months and I

ended up with a suspended license for having filed 4 disability rights cases." Plaintiff

states that the Indiana Supreme Court suspended his Indiana "law license" for 180 days

without automatic reinstatement on February 14, 2017. See Matter of Straw, 68 N.E.3d

1070, 1073 (Ind.) ("For Respondent's [Mr. Straw's] professional misconduct, the Court

suspends Respondent from the practice of law in this state for a period of not less than

180 days, without automatic reinstatement, effective immediately.") (emphasis omitted),

cert. denied sub nom. Straw v. Ind. Supreme Court, 137 S. Ct. 2309 (2017). Plaintiff states

he is separately "suing the Indiana Supreme Court in federal court for relief and damages"

and has filed complaints with "local, state, and federal civil rights agencies and offices for

various aspects of the damage to me from the Indiana Supreme Court and its retaliation

and discrimination."

Following the Indiana Supreme Court's suspension of plaintiff from the practice of

law in state court in Indiana for 180 days without automatic reinstatement, plaintiff alleges

the United States District Court for the Northern District of Indiana, the United States

District Court for the Southern District of Indiana, and the United States District Court for

the Northern District of Illinois "simply followed the Indiana Supreme Court down the path

of suspending me" and "illegally punishing me in 'comity' with the Indiana Supreme

Court." See In the Matter of: Andrew U.D. Straw, No. 1:17-mc-13-TWP-DKL, (S.D. Ind.

Mar. 16, 2017) (suspending Mr. Straw from the practice of law before the court), appeal

docketed, Andrew U.D. Straw v. United States District Court, No. 17-2523, (7th Cir. July

26, 2017); 1 In the Matter of: Andrew U.D. Straw, No. 1:17-MC-5-TLS, (N.D. Ind. Mar. 21,

2017) (suspending Mr. Straw from the practice of law before the court); In the Matter of

Andrew U.D. Straw. An Attorney, No. 17-D-02, (N.D. Ill. Mar. 17, 2017) (suspending Mr.

Straw from the practice of law before the court). Plaintiff contends the three United States

District Courts, which all invited plaintiff to submit documents indicating why reciprocal

discipline would be unwarranted, did not provide him with proper hearings and "ignore[d]"

plaintiff's reasons as to why suspension should not be imposed. Moreover, plaintiff insists

the District Courts' actions violated the Takings Clause of the Fifth Amendment by

depriving plaintiff of his property rights in his "law licenses." Plaintiff asserts this court has

jurisdiction over his takings claims pursuant to 28 U.S.C. § 1491 (a)(1 ). Additionally,

plaintiff contends that "under 42 U.S.C. § 12203 and 28 C.F.R. § 35.134 ... retaliation

against ADA cases is illegal and no person may do so under any circumstances, including

1 Plaintiff has filed numerous additional documents in this court in addition to those

required by the Rules of the United States Court of Federal Claims, including a document

titled "AFFIDAVIT OF ANDREW U. D. STRAW" on September 18, 2017. This document

appears to detail plaintiff's experience when appealing what plaintiff terms "an incorrect

decision to the 7th Circuit" in Straw v. Indiana Supreme Court. See Straw v. Indiana

Supreme Court, 692 F. App'x 291 (7th Cir. 2017).

2

any federal judge who is administering the law licensing in a district court." Plaintiff alleges

this court has jurisdiction over his ADA retaliation claims under 28 U.S.C. § 1491(a)(2).

On October 10, 2017, defendant filed a motion to dismiss plaintiff's complaint for

lack of subject-matter jurisdiction under Rule 12(b)(1) (2017) of the Rules of the United

States Court of Federal Claims (RCFC), or, in the alternative, for failure to state a claim

upon which relief can be granted under RCFC 12(b)(6). Defendant argues plaintiff "has

no constitutionally protected property interest in his admission to practice before any

United States district courts" because "[a]dmission to practice before courts is not a

transferrable property right subject to compensation pursuant [sic] the Takings Clause"

and, also, that Mr. Straw's contention that his suspensions were unwarranted defeats his

takings claims because a taking can only occur when the underlying governmental action

is valid. Defendant also asserts that this court lacks jurisdiction to review the merits of a

District Court decision. Additionally, defendant contends 28 U.S.C. § 1500 "bars this

action because Mr. Straw claim [sic] that he was improper [sic] suspended" was pending

on appeal when this action was filed.

Plaintiff filed a response to the defendant's motion to dismiss, in which he states

that he learned on October 10, 2017, that his Western District of Wisconsin license was

suspended, and that he will "seek amendment to add this claim for another $1,000,000,

like the others" if his complaint is not dismissed. In response to defendant's argument

that this court lacks subject matter jurisdiction over plaintiff's complaint, plaintiff maintains

that "the property interest in my law licenses is created through substantive due process

because federal law creates these very valuable licenses" and declares "[j]udicial takings

are covered by the Fifth Amendment." Plaintiff also asserts that a "that a law license is a

fundamental right under the Privileges and Immunities Clause" and that "[i]nfringing that

right must be compensated as a Takings."2

As of the date of this opinion, the court has received and reviewed a continuous

stream of additional filings from Mr. Straw. These additional filings include a motion for

entry of a default judgment by the Clerk of the Court. 3 Mr. Straw's other filings appear to

2 In his response, plaintiff states that he incorporates "by reference all exhibits and

affidavits in the record, including my MOTION FOR SUMMARY JUDGMENT .... "

3 In the motion for default judgment, among other allegations, plaintiff argues defendant

was in default because the docket set a deadline of October 9, 2017, for defendant to

file an answer to plaintiff's complaint. In fact, plaintiff's motion to dismiss was filed

instead of an answer in accordance with RCFC 12. Moreover, pursuant to RCFC 12(a),

defendant had sixty days to file an answer to plaintiff's complaint. If the period in which

a party must a file a document ends on a Saturday, Sunday, or legal holiday, the filing

period continues to run until the same time on the next day. RCFC 6(2)(C). Columbus

Day, which was observed on October 9, 2017, is considered a legal holiday. See RCFC

6(6)(A). Thus, defendant's answer to plaintiff's complaint was not due until October 10,

2017, and defendant was not in default because it timely filed its motion to dismiss

instead of an answer in accordance with RCFC 12 on October 10, 2017.

3

be largely duplicative of statements and allegations raised in plaintiff's earlier response

to defendant's motion to dismiss. Overall, they add little, additional, relevant information

to assist the court, although the court has reviewed each of the filings.

DISCUSSION

The court recognizes that plaintiff is technically proceeding pro se, without the

assistance of counsel. When determining whether a complaint filed by a prose 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, 9-1 O (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, affd,

603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t]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);

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'g 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 plaintiffs 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)). Although Mr. Straw's filings were filed prose, the court notes that the above-

captioned plaintiff, by his own description, was trained as an attorney.

In the above-captioned case, plaintiff has filed an Application to Proceed !n

Forma Pauperis. In general, to provide access to this court to those who cannot pay the

filing fees mandated by Rule 77.1(c) of the RCFC, 28 U.S.C. § 1915 (2012) permits a

court to allow a plaintiff to file a complaint without payment of fees or security, under

specific circumstances. Section 1915(a)(1) states that:

Subject to subsection (b), any court of the United States may authorize the

commencement, prosecution or defense of any suit, action or proceeding,

civil or criminal, or appeal therein, without prepayment of fees or security

4

therefor, by a person who submits an affidavit that includes a statement of

all assets such prisoner[4] possesses [and] that the person is unable to pay

such fees or give security therefor. Such affidavit shall state the nature of

the action, defense or appeal and affiant's belief that the person is entitled

to redress.

28 U.S.C. § 1915(a)(1). Therefore, the statute at 28 U.S.C. § 1915(a)(1) requires a

person to submit an affidavit with a statement of all the applicant's assets, and that the

affidavit state the nature of the action, defense or appeal and affiant's belief that the

person is entitled to redress. See id.

When enacting the in forma pauperis statute, 28 U.S.C. § 1915, Congress

recognized that '"a litigant whose filing fees and court costs are assumed by the public,

unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,

malicious, or repetitive lawsuits."' Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting

Neitzke v. Williams, 490 U.S. 319, 324 (1989)); see also McCullough v. United States, 76

Fed. Cl. 1, 3 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed.

Cir.), cert. denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e)

in the in forma pauperis statute, which allows courts to dismiss lawsuits determined to be

"frivolous or malicious." 28 U.S.C. § 1915(e). The United States Supreme Court has

found that "a court may dismiss a claim as factually frivolous only if the

facts alleged are 'clearly baseless' ... a category encompassing allegations that are

'fanciful' ... 'fantastic' ... and 'delusional .... "' Denton v. Hernandez, 504 U.S. at 32-

33 (internal citations omitted); see also McCullough v. United States, 76 Fed. Cl. at 3;

4 A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding in

forma pauperis applications by non-prisoner litigants in federal courts, and have

concluded that Congress did not intend for non-prisoners to be barred from being able

to proceed in forma pauperis in federal court. See,~. Floyd v. United States Postal

Serv., 105 F.3d 274, 275-76 (6th Cir.), reh'g denied (6th Cir. 1997); Schagene v. United

States, 37 Fed. Cl. 661, 663 (1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998);

see also In re Prison Litigation Reform Act, 105F.3d1131, 1134 (6th Cir. 1997)

(discussing how to administer in forma pauperis rights to a non-prisoner, thereby

acknowledging the rights of non-prisoners to apply for in forma pauperis status);

Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996) (using "sic" following the word

"prisoner" in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use of that word was

too narrow); Smith v. United States, 113 Fed. Cl. 241, 243 (2013); Powell v. Hoover,

956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that a "fair reading of the entire section

[28 U.S.C. § 1915(a)(1)] is that it is not limited to prisoner suits."). Moreover, 28 U.S.C.

§ 1915(a)(1) refers to both "person" and "prisoner." The word "person" is used three

times in the subsection, while the word "prisoner" is used only once. This court,

therefore, finds that the single use of the word "prisoner" in the language of 28 U.S.C. §

1915(a)(1) was not intended to eliminate a non-prisoner from proceeding in federal

court in forma pauperis, provided that the civil litigant can demonstrate appropriate

need. Any other interpretation is inconsistent with the statutory scheme of 28 U.S.C. §

1915.

5

Schagene v. United States, 37 Fed. Cl. at 663. Courts, however, should exercise caution

in dismissing a case under section 1915(e) because a claim that the court perceives as

likely to be unsuccessful is not necessarily frivolous. See Denton v. Hernandez, 504 U.S.

at 33. As stated by the United States Supreme Court, "a finding of factual frivolousness

is appropriate when the facts alleged rise to the level of the irrational or the wholly

incredible, whether or not there are judicially noticeable facts available to contradict

them." 19.,.

The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is "unable

to pay such fees or give security therefor." Determination of what constitutes "unable to

pay" or unable to "give security therefor," and, therefore, whether to allow a plaintiff to

proceed in forma pauperis is left to the discretion of the presiding judge, based on the

information submitted by the plaintiff or plaintiffs. See, ~. Rowland v. Cal. Men's

Colony, Unit II Men's Advisory Council, 506 U.S. 194, 217-18 (1993); Roberson v. United

States, 115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App'x 966 (Fed. Cir. 2014);

Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011). This court and its predecessors

were established to make available a user friendly forum in which plaintiffs can submit

their legitimate claims against the sovereign, limited only by the legislative decision to

waive sovereign immunity as to the types of claims allowed. In fact, prominently posted

at the entrance to this courthouse are the words of Abraham Lincoln: "It is as much the

duty of government to render prompt justice against itself, in favor of citizens, as it is to

administer the same, between private individuals."

Interpreting an earlier version of the in forma pauperis statute, the United States

Supreme Court offered the following guidance:

We cannot agree with the court below that one must be absolutely destitute

to enjoy the benefit of the statute. We think an affidavit is sufficient which

states that one cannot because of his poverty "pay or give security for the

costs ... and still be able to provide" himself and dependents "with the

necessities of life." To say that no persons are entitled to the statute's

benefits until they have sworn to contribute to payment of costs, the last

dollar they have or can get, and thus make themselves and their

dependents wholly destitute, would be to construe the statute in a way that

would throw its beneficiaries into the category of public charges. The public

would not be profited if relieved of paying costs of a particular litigation only

to have imposed on it the expense of supporting the person thereby made

an object of public support. Nor does the result seem more desirable if the

effect of this statutory interpretation is to force a litigant to abandon what

may be a meritorious claim in order to spare himself complete destitution.

We think a construction of the statute achieving such consequences is an

inadmissible one.

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (omissions in

original).

6

In Fiebelkorn v. United States, for example, a Judge of the United States Court of

Federal Claims indicated that:

[T]he threshold for a motion to proceed in forma pauperis is not high: The

statute requires that the applicant be 'unable to pay such fees.' 28 U.S.C.

§ 1915(a)(1 ). To be 'unable to pay such fees' means that paying such fees

would constitute a serious hardship on the plaintiff, not that such payment

would render plaintiff destitute.

Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007); see also Fuentes v. United States,

100 Fed. Cl. at 92; Hayes v. United States, 71 Fed. Cl. 366, 369 (2006).

In his Application to Proceed In Forma Pauperis, prose plaintiff Mr. Straw indicates

that he receives an unspecified amount of income from Social Security Disability

Insurance, has minimal savings, and has been unemployed since 2008. Plaintiff's

application also lists $350.00 from "[r]efugee clients from Ukraine" and $20,500.00 from

"settlements for disability discrimination" as his other sources of income within the last

twelve months. Plaintiff's application further provides that he has monthly expenses of

approximately $1,087.00, as well as approximately $52,000.00 in student loan debt and

approximately $30,000.00 in credit card and legal debts. Although plaintiff's income and

amount of outstanding debt might qualify him to proceed in forma pauperis, as discussed

below, his application is moot because his complaint is being dismissed.

Additionally, the court notes that plaintiff is a frequent filer of complaints in federal

courts. Plaintiff has filed multiple complaints or appeals that were dismissed as frivolous

or for failure to state a claim. The statute at 28 U.S.C. § 1915(g), titled the Prison Litigation

Reform Act, was enacted with respect to prisoner plaintiffs to discourage frivolous

lawsuits and denies in forma pauperis status to repetitive prisoner complainants. It states:

In no event shall a prisoner bring a civil action or appeal a judgment in a

civil action or proceeding under this section ifthe prisoner has, on 3 or more

prior occasions, while incarcerated or detained in any facility, brought an

action or appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim upon which

relief may be granted, unless the prisoner is under imminent danger of

serious physical injury.

28 U.S.C. § 1915(g); see also McLean v. United States, 566 F.3d 391, 394 (4th Cir.

2009); Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); Warren v. United States,

106 Fed. Cl. 507, 509-10 (2012); Dudley v. United States, 61 Fed. Cl. 685, 686 (2004).

Since 2014, Mr. Straw has filed at least twenty-one complaints and twelve appeals on his

own behalf. Of those filings, in federal courts at least four have been dismissed as

frivolous. See Straw v. Kloecker, 576 F. App'x 607, 609 (7th Cir. 2014) ("We agree with

the district court [for the Northern District of Illinois] that Straw's lawsuit under RICO is

frivolous, as is this appeal. Accordingly, we AFFIRM the judgment and order Straw to

SHOW CAUSE within 30 days why he should not be sanctioned under [Federal Rules of

7

Appellate Procedure] 38 for taking this appeal.") (emphasis added); Straw v. Ind. Attorney

General, No. 1:17-cv-03975-WTL-TAB, (S.D. Ind. Nov. 6, 2017) (order dismissing

plaintiff's complaint as "frivolous," noting that Mr. Straw "is developing a pattern of filing

frivolous litigation," and warning Mr. Straw that he could be subject to sanctions if he

continued to file further frivolous litigation) (emphasis added), appeal docketed, Straw v.

Ind. Attorney General, No. 17-3357 (7th Cir. Nov. 14, 2017); Straw v. Ind. Attorney

General, No. 1:17-cv-03975-WTL-TAB, (S.D. Ind. Dec. 4, 2017) (District Court, however,

denied Mr. Straw's request to proceed on appeal in forma pauperis because Mr. Straw

was pursuing his appeal "in bad faith") (internal quotation marks and citation omitted);

Straw v. Court, No. 1:15-CV-01015-RLY-DKL, 2016 WL 344720, at *5-8 (S.D. Ind. Jan.

28, 2016) (dismissing the case because Mr. Straw failed to state a claim under Title I and

Title V of the ADA and failed to state a deprivation of due process in violation of the Fifth

Amendment); Straw v. Sconiers, No. 3:14-CV-1772-JD, 2014 WL 7404065, at *1 (N.D.

Ind. Dec. 30, 2014) ("Because Straw's claims are utterly frivolous, the Court dismisses

the claims for lack of subject matter jurisdiction consistent with Rule 12(b)(1). And even if

Straw had established jurisdiction, the motions would be granted on the ground that Straw

has failed to state a claim upon which relief can be granted consistent with Rule 12(b)(6).")

(emphasis added); Straw v. Kloecker, No. 14-C-1420, 2014 WL 883289, at *2 (N.D. Ill.

Mar. 5, 2014) (denying Mr. Straw's application to proceed in forma pauperis and

dismissing the action because Mr. Straw's complaint was "legally frivolous") (emphasis

added), aff'd, 576 F. App'x 607 (7th Cir. 2014). Additionally, at least two federal judges

have dismissed complaints filed by Mr. Straw for reasons other than failure to state a

claim, and, in doing so, noted that Mr. Straw also had failed to state a claim. Straw v.

Dixon, No. 3:16-CV-276, 2016 WL 4014976, at *4 (N.D. Ind. July 27, 2016) ("Even if

Plaintiff had properly alleged that diversity jurisdiction exists, he has failed to state a claim

for abuse of process."); Straw v. Am. Bar Ass'n, No. 14-C-5194, 2015 WL 602836, at *6

(N.D. Ill. Feb. 11, 2015) ("Alternatively, even if Straw had standing to bring his claim

(which he does not), he has failed to state a claim under the ADA.").

With respect to the case currently before this court, plaintiff's complaint also fails

to establish a cognizable cause of action within the jurisdiction of this court and fails to

state a claim. 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

8

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

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

Clappv. 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." !.Q.,_; see also [United States v. JTestan, 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).

9

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.

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

Atl. 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 Atl. 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."), aff'd, 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

10

plausible.'" Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting

Bell Atl. 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. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. at 555).

Plaintiff's current complaint filed in this court alleges that he suffered Constitutional,

Fifth Amendment takings of his three "federal law licenses" in the United States District

Court for the Northern District of Indiana, the United States District Court for the Southern

District of Indiana, and the United States District Court for the Northern District of Illinois.

To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that the

government took a private property interest for public use without just compensation. See

Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S.

811 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762 (201 O); Gahagan v. United

States, 72 Fed. Cl. 157, 162 (2006). "The issue of whether a taking has occurred is a

question of law based on factual underpinnings.'' Huntleigh USA Corp. v. United States,

525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government

must be operating in its sovereign rather than in its proprietary capacity when it initiates

a taking. See St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed.

Cir. 2008). The United States Court of Appeals for the Federal Circuit has established a

two-part test to determine whether government actions amount to a taking of private

property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d

505, 511 (Fed. Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372

(Fed. Cir.) (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert.

denied, 516 U.S. 808 (1995)), reh'g denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139

(2005). A court first determines whether a plaintiff possesses a cognizable property

interest in the subject of the alleged takings. Then, the court must determine whether the

government action is a "'compensable taking of that property interest.'" Huntleigh USA

Corp v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co .. L.P. v. United

States, 379 F.3d at 1372).

Among its arguments, defendant urges this court to dismiss plaintiff's complaint for

failure to state a claim because plaintiff does not have a cognizable property interest in

his admission to practice law before any of the three District Courts. Plaintiff, however,

argues that "[p]ersonal property is covered [by the Takings Clause of the Fifth

Amendment] and this Court has jurisdiction over Takings Clause cases.'' Plaintiff asserts

in his response to defendant's motion to dismiss that his "property interest in [his] law

licenses is created through substantive due process" and that "a law license is a

fundamental right under the Privileges and Immunities Clause of the U.S. Constitution.''

Plaintiff also insists in his response that "[a]s a disabled person, I am a member of a

discrete and insular minority and my rights are subject to heightened scrutiny.''

(emphasis in original).

Mr. Straw appears to be alleging a judicial takings by the three identified United

States District Courts. There exist varied treatments of judicial takings claims by different

11

courts. Some courts, including the United States Court of Appeals for the Federal Circuit,

the binding Circuit Court for this court, have determined that judicial takings can exist,

although without concluding that a judicial taking actually occurred. See Smith v. United

States, 709 F.3d at 1116 ("In that case [Stop the Beach], the Court recognized that a

takings claim can be based on the action of a court."); see also Vandevere v. Lloyd, 644

F.3d 957, 964 n.4 (9th Cir.) ("[A]ny branch of state government could, in theory, effect a

taking." (citing Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S.

702, 713-15 (plurality opinion))), cert. denied, 132 S. Ct. 850 (2011). Although it is

theoretically possible for a court to effect a fundamental taking, however, the United

States Court of Appeals for the Federal Circuit also has indicated that the United States

Court of Federal Claims lacks jurisdiction over judicial takings claims that require the court

to scrutinize the decisions of other tribunals for the same plaintiff given the same set of

facts. 5 See also Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed.

Cir. 2015) ("Binding precedent establishes that the Court of Federal Claims has no

jurisdiction to review the merits of a decision rendered by a federal district court.");

lnnovair Aviation Ltd. v. United States, 632 F.3d 1336, 1344 (Fed. Cir.) ("[T]he Court of

Federal Claims does not have jurisdiction to review the decision of district courts and

cannot entertain a taking[s] claim that requires the court to scrutinize the actions of

another tribunal." (internal quotation marks omitted; brackets in original)), reh'g en bane

denied, (Fed. Cir. 2011), cert. denied, 132 S. Ct. 999 (2012); Vereda Ltda. v. United

States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) ("[T]he Court of Federal Claims cannot

entertain a taking claim that requires the court to scrutinize the actions of another tribunal."

(internal quotation marks omitted)); Allustiarte v. United States, 256 F.3d 1349, 1352

(Fed. Cir.) ('"[T]he Court of Federal Claims does not have jurisdiction to review the

decisions of district courts."' (quoting Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.

1994))), cert. denied, 534 U.S. 1042 (2001); see also Potter v. United States, 121 Fed.

Cl. 168, 169 (2015); Marti v. United States, 6 No. 09-299, 2010 WL 369212, at *2 (Fed. Cl.

5 In a non-presidential opinion, the Federal Circuit indicated that "[t]he appellant [Barth]

asked the Court of Federal Claims to scrutinize the actions of coordinate federal courts

to determine whether their actions effected a taking of his property. That was beyond the

Court of Federal Claims' jurisdiction." Barth v. United States, 76 F. App'x 944, 945-46

(Fed. Cir.), cert. denied, 540 U.S. 1049 (2003) (footnote omitted).

6 The Marti case is related to a recent decision of the undersigned, Milgroom v. United

States, 122 Fed. Cl. 779 (2015), aff'd, 651 F. App'x 1001 (Fed. Cir. 2016) (per curiam),

involving the same underlying facts as the Marti case. In the Milgroom case, this court

determined:

This court is without jurisdiction to review the alleged taking by the District

Court, a judicial taking, see Stop the Beach Renourishment, Inc. v. Florida

Dep't of Envtl. Protection, 560 U.S. 702 (2010), because review in this case

of such a taking "would require the Court of Federal Claims to scrutinize the

merits of the district court's judgment, a task it is without authority to

undertake." Shinnecock Indian Nation v. United States, 782 F.3d 1345,

1352 (Fed. Cir. 2015); see also Joshua v. United States, 17 F.3d 378, 380

(Fed. Cir. 1994) ("[T]he Court of Federal Claims does not have jurisdiction

12

Jan. 29, 2010) (unpublished) ("[T]his court has no jurisdiction over takings claims that are

founded on a challenge to the judgment of another federal court.").

Therefore, to determine whether jurisdiction exists in the above captioned case,

this court must ascertain whether or not plaintiff's judicial takings claims require the court

to reevaluate the decisions of the United States District Court for the Northern District of

Indiana, the United States District Court for the Southern District of Indiana, and the

United States District Court for the Northern District of Illinois, including whether the case

filed in the United States Court of Federal Claims involves the same plaintiff and the same

set of facts as was analyzed in those District Court cases. Although his complaint alleges

that a taking occurred when the District Courts each suspended plaintiff from the practice

of law for 180 days, in his response to defendant's motion to dismiss, plaintiff argues "[n]o

examination of the district court decisions is being requested, only verification that my

licenses were suspended and providing the monetary takings I asked. Not one jot of

these other courts' decisions is being asked to be changed here. I just want

compensation."

Following the Indiana Supreme Court's 180 day suspension of Mr. Straw's license

to practice law in Indiana, the United States District Court for the Southern District of

Indiana issued an order to Mr. Straw to show cause "why reciprocal discipline should not

be imposed in accordance with Rule II of the Local Rules of Disciplinary Enforcemenf' of

the court. In the Matter of: Andrew U.D. Straw, No. 1:17-mc-13-TWP-DKL, (S.D. Ind.

March 16, 2017), appeal docketed, Andrew U.D. Straw v. United States District Court,

No. 17-2523 (7th Cir. July 26, 2017). The United States District Court for the Southern

District of Indiana found that Mr. Straw's submission to the court failed to "provide a

sufficient bases [sic] to overcome reciprocal suspension in this court" and suspended Mr.

Straw for 180 days without automatic reinstatement. kl Similarly, the United States

District Court for the Northern District of Indiana imposed reciprocal discipline "pursuant

to N.D. Ind. L. R. 83-6.8(c)." In the Matter of: Andrew U.D. Straw, No. 1:17-MC-5-TLS,

(N.D. Ind. Mar. 21, 2017). The United States District Court for the Northern District of

Indiana also reviewed Mr. Straw's submission to the court and found that Mr. Straw's

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

relating to proceedings before those courts."). Just as the Court of Federal

Claims does not have jurisdiction to review the decisions of the United

States District Courts, the Court of Federal Claims also does not have

jurisdiction to review decisions of the United States Bankruptcy Courts. See

Allustiarte v. United States, 256 F.3d 1349, 1351 (Fed. Cir. 2001) (holding

that the Court of Federal Claims does not have jurisdiction to entertain

judicial takings claims against federal bankruptcy courts because "[s]uch a

determination would require the court to scrutinize the actions of the

bankruptcy trustees and courts"), cert. denied, 534 U.S. 1042 (2001 ); Mora

v. United States, 118 Fed. Cl. 713, 716 (2014) ("[T]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.").

Milgroom v. United States, 122 Fed. Cl. at 801-02.

13

submission was not sufficient to avoid reciprocal discipline . .!Q,_ The United States District

Court for the Northern District of Indiana suspended Mr. Straw for 180 days without

automatic reinstatement and noted that Mr. Straw's submissions "only highlight that the

suspension is appropriate, as [Mr. Straw] is either unwilling or incapable of accepting that

his claims did not have 'a basis in law and fact ... that is not frivolous .... "' .!Q,_ (citation

omitted). Additionally, in the United States District Court for the Northern District of Illinois,

the court determined that Mr. Straw's submission to the court requesting that the court

not impose discipline identical to that imposed by the Indiana Supreme Court did not

satisfy any of "the grounds set forth in Local Rule 83.26(e)" and suspended Mr. Straw for

180 days without automatic reinstatement. In the Matter of Andrew U.D. Straw, An

Attorney, No. 17-D-02, (N.D. Ill. March 17, 2017). Each of these United States District

Courts interpreted their own local rules and decided to impose reciprocal discipline and

suspend plaintiff's admission to practice before their particular court. This court, therefore,

lacks jurisdiction over plaintiff's judicial takings claims because this court should not

review whether the three United States District Courts properly interpreted their own local

rules when deciding whether to suspend plaintiff.7

Plaintiff's own submissions to this court contradict his assertion that when alleging

a conspiracy and a taking by each of the District Courts to deprive him of his right to

practice law in those District Courts, he is not challenging the propriety of the District

Courts' decisions. Plaintiff's argument in his reply to defendant's motion to dismiss, which

states "[n]o examination of the district court decisions is being requested, only verification

that my licenses were suspended .... I just want compensation," resembles the plaintiffs'

argument in Allustiarte v. United States. In Allustiarte v. United States, the plaintiffs

unsuccessfully claimed they were "not asking the Court of Federal Claims to review" the

Bankruptcy Court's judgments, but were only seeking to obtain just compensation for the

takings. Allustiarte v. United States, 256 F.3d at 1351; see also Shinnecock Indian Nation

v. United States, 782 F.2d at 1353 ("The Court of Federal Claims, however, is without

authority to adjudicate the Nation's claim that it suffered a compensable taking at the

hands of the district court."); and the undersigned's decision in Petro-Hunt, L.L.C. v.

United States, 126 Fed. Cl. 367, 384 (2016) (observing that plaintiff's argument that the

United States Court of Appeals for the Fifth Circuit incorrectly interpreted and applied

case law precedent undercut plaintiff's assertion that he was not challenging the court's

decision), aff'd, 862 F.3d 1370 (Fed. Cir. 2017). Plaintiff is, in fact, seeking to have this

court review the same factual issues that were before the United States District Court for

the Northern District of Indiana, the United States District Court for the Southern District

of Indiana, and the United States District Court for the Northern District of Illinois, which

this court cannot do.

7 On May 19, 2017, the Virginia State Bar Disciplinary Board also convened a hearing to

determine whether the Board should impose the same discipline on plaintiff as imposed

by the Indiana Supreme Court. After holding a hearing in which plaintiff appeared

telephonically, the Board found "that the conduct resulting in the Respondent's

suspension in Indiana is not conduct that would be grounds for disciplinary action in

Virginia." The Virginia Board elected not to impose reciprocal discipline on plaintiff.

14

Moreover, this court does not have jurisdiction over plaintiff's takings claims

because the United States Court of Federal Claims may only exercise jurisdiction under

the Fifth Amendment when the claimant "concede[s] the validity of the government action

which is the basis of the taking claim to bring suit under the Tucker Act .... " Tabb Lakes.

Ltd. v. United States, 10 F.3d 796, 802-03 (Fed. Cir. 1993); see also Mahoney v. United

States, 129 Fed. Cl. 589, 592-93 (2016); Lea v. United States, 120 Fed. Cl. 440, 445

(2015). In this case, the initial disciplinary action was taken by Indiana's highest state

court, and Mr. Straw has not conceded the validity of the three District Courts' actions

which imposed reciprocal discipline. In sum, plaintiff has not alleged any valid takings

claims over which this court has jurisdiction.

Plaintiff further asserts 28 U.S.C. § 1491 provides this court with jurisdiction over

his "ADA retaliation claims" against the three federal District Courts which issued orders

suspending plaintiff's admissions to practice law. This court, however, lacks subject

matter jurisdiction over plaintiff's ADA retaliation claims for several reasons. First, as

discussed above, to demonstrate that the Tucker Act provides jurisdiction over claims

where a contract between the claimant and government did not exist and no payment

has been made to the government, the claimant must prove that the particular provision

of law relied upon is money-mandating. See,~. United States v. Navajo Nation, 556

U.S. at 290; Ontario Power Generation, Inc. v. United States, 369 F.3d at 1301. The

ADA, however, is not a money-mandating law. See Dziekonski v. United States, 120

Fed. Cl. 806, 809-1 O (2015) (noting that the ADA is not a money-mandating provision

that would provide the COFC with jurisdiction) (citation omitted); Shipman v. United

States, 118 Fed. Cl. 701, 707 (2014) ("[T]he court does not have subject matter

jurisdiction over claims alleging a violation of the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. § 12101 et seq., because the ADA is not a money-mandating source

of law.") (internal quotation marks and citation omitted). Moreover, the United States

District Courts possess exclusive jurisdiction over ADA claims. See,~. McCauley v.

United States, 38 Fed. Cl. 250, 266 (1997) (citing 42 U.S.C. § 12117(a)) (finding the

district courts had exclusive jurisdiction over claims brought under the ADA), aff'd, 152

F.3d 948 (Fed. Cir. 1998). Thus, this court is not the proper forum to seek judicial relief

under the ADA. kL see Johnson v. United States, 97 Fed. Cl. 560, 564 (2011) ("The

Court notes that Federal district courts have exclusive jurisdiction over the ADA and

Rehabilitation Act claims."); Searles v. United States, 88 Fed. Cl. 801, 805 (2009)

("Indeed, the ADA does not apply to the federal government as an employer and district

courts hold exclusive jurisdiction over ADA claims.").

Plaintiff also asserts that this court has jurisdiction under Title II of the ADA arising

under 28 C.F.R. § 35.134. Under 28 C.F.R. § 35.134(a), no "private or public entity shall

discriminate against any individual because that individual has opposed any act or

practice made unlawful by this part, or because that individual made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under

the Act or this part." The section of 28 C.F.R. § 35.134(b) provides:

No private or public entity shall coerce, intimidate, threaten, or interfere with

any individual in the exercise or enjoyment of, or on account of his or her

15

having exercised or enjoyed, or on account of his or her having aided or

encouraged any other individual in the exercise or enjoyment of, any right

granted or protected by the Act or this part.

"Private or public entity" has been defined as any state or local government, any

instrumentality of a state or local government, or the National Railroad Passenger

Corporation. 28 C.F.R. § 35.104. The ADA does not apply to the United States District

Court for the Northern District of Indiana, the United States District Court for the

Southern District of Indiana, and the United States District Court for the Northern District

of Illinois because those federal courts are not state or local governments or

instrumentalities of such as defined by 28 C.F.R. § 35.104. See Cellular Phone

Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000) (per curiam) ("Title II of the ADA is

not applicable to the federal government."), cert. denied, 531 U.S. 1070 (2001); Pierce

v. United States, 117 Fed. Cl. 798, 801 (2014) (stating that neither the United States

Tax Court nor the United States District Court for the Eastern District of California were

a "public entity" for purposes of the ADA) (citing United States v. Wishart, 146 F. App'x

171 (9th Cir. 2005)), aff'd, 590 F. App'x 1000 (Fed. Cir. 2015); Grayv. United States, 69

Fed. Cl. 95, 101 n.5 (2005)); Agee v. United States, 72 Fed. Cl. 284, 289 (2006)

(concluding that the COFC does not have jurisdiction over claims arising under Title II of

the ADA).

Finally, regardless, defendant asserts plaintiffs claims against the United States

would be barred by 28 U.S.C. § 1500, which provides:

The United States Court of Federal Claims shall not have jurisdiction of any

claim for or in respect to which the plaintiff or his assignee has pending in

any other court any suit or process against the United States or any person

who, at the time when the cause of action alleged in such suit or process

arose, was, in respect thereto, acting or professing to act, directly or

indirectly under the authority of the United States.

The application of section 1500 turns on whether a plaintiff, at the time suit was filed in

the Court of Federal Claims, had a suit pending in another federal court against the United

States or a person acting under authority of the United States, based on substantially the

same operative facts as the suit filed in this court, regardless of the relief sought. See

United States v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011). "The question of

whether another claim is 'pending' for purposes of§ 1500 is determined at the time at

which the suit in the Court of Federal Claims is filed, not the time at which the Government

moves to dismiss the action." Loveladies Harbor. Inc. v. United States, 27 F.3d 1545,

1548 (Fed. Cir. 1994) (discussing the United States Supreme Court's opinion in Keene

Corp. v. United States, 508 U.S. 200 (1993)). Indeed, "'the jurisdiction of the Court

depends upon the state of things atthe time of the action brought.'" Keene Corp. v. United

States, 508 U.S. at 207 (quoting Mollan v. Torrance, 22 U.S. 537, 539 (1824) (Marshall,

C.J.) (other citations omitted) (noting that the Court of Federal Claims correctly applied

section 1500 by "looking to the facts existing when Keene filed each of its complaints").

When a District Court has entered judgment dismissing a case, the United States Court

of Appeals for the Federal Circuit has established that once "a notice of appeal is filed,"

16

then the case is "pending" under 28 U.S.C. § 1500. Brandt v. United States, 710 F.3d

1369, 1380 (Fed. Cir. 2013).

The United States Supreme Court offered some clarification regarding the effect

of 28 U.S.C. § 1500 in Tohono O'Odham Nation. In the words of the United States

Supreme Court, section 1500 "bars jurisdiction in the CFC [Court of Federal Claims] not

only if the plaintiff sues on an identical claim elsewhere - a suit 'for' the same claim - but

also if the plaintiff's other action is related although not identical - a suit 'in respect to' the

same claim." United States v. Tohono O'Odham Nation, 563 U.S. at 312. The Supreme

Court explained, "two suits are for or in respect to the same claim when they are based

on substantially the same operative facts." !fl at 318 (citing Keene Corp. v. United States,

508 U.S. 200, 206 (1993)).

There is, however, no set test to determine when, according to the Supreme Court,

"two suits have sufficient factual overlap to trigger the jurisdictional bar." United States v.

Tohono O'Odham Nation, 563 U.S. at 318. Although the assessment must be on a case

by case factual basis, the Tohono O'Odham Nation case provides a general framework

for consideration. In its decision, the Supreme Court stated in Tohono O'Odham Nation:

The remaining question is whether the Nation's two suits have sufficient

factual overlap to trigger the jurisdictional bar. The CFC [United States

Court of Federal Claims] dismissed the action here in part because it

concluded that the facts in the Nation's two suits were, "for all practical

purposes, identical." 79 Fed. Cl. 645, 656 (2007). It was correct to do so.

The two actions both allege that the United States holds the same assets in

trust for the Nation's benefit. They describe almost identical breaches of

fiduciary duty - that the United States engaged in self-dealing and

imprudent investment, and failed to provide an accurate accounting of the

assets held in trust, for example. Indeed, it appears that the Nation could

have filed two identical complaints, save the caption and prayer for relief,

without changing either suit in any significant respect. Under § 1500, the

substantial overlap in operative facts between the Nation's District Court

and CFC suits precludes jurisdiction in the CFC.

!fl at 317.

Plaintiff appealed the United States District Court for the Southern District of

Indiana's order suspending plaintiff's admission to the court for 180 days to the United

States Court of Appeals for the Seventh Circuit on July 26, 2017, which was two weeks

before plaintiff filed his complaint with this court. 8 See Andrew U.D. Straw v. United States

8 It appears that Mr. Straw has not appealed the decision by the United States District

Court for the Northern District of Indiana in In the Matter of: Andrew U.D. Straw, No. 1:17-

MC-5-TLS, (N.D. Ind. Mar. 21, 2017), or the decision by the United States District Court

for the Northern District of Illinois in In the Matter of Andrew U.D. Straw, An Attorney, No.

17-D-02, (N.D. Ill. Mar. 17, 2017).

17

District Court, No. 17-2523 (?th Cir. July 26, 2017). In the docketing statement in the

Circuit Court, Mr. Straw sought review of whether "the Southern District of Indiana has

the authority to impose discipline based on cases in other districts" and whether Mr. Straw

has "an absolute right not to experience any discrimination or retaliation for filing any

disability rights complaint or lawsuit under 42 U.S.C. § 12203, 28 C.F.R. § 35.134, and

explained in the technical assistance manual at http://www.ada.gov/reg2.htm." )fl Upon

review, it is apparent that the initial case in United States District Court for the Southern

District of Indiana and the appeal, which, clearly, was pending when plaintiff filed his

complaint in this court, arise from substantially the same operative facts, which revolve

around whether Mr. Straw's suspension by the Indiana Supreme Court and the United

States District Court for the Southern District of Indiana were proper. Therefore, his claims

filed in this court are barred 28 U.S.C. § 1500. See United States v. Tohono O'Odham

Nation, 563 U.S. at 317; see also Trusted Integration. Inc. v. United States, 659 F.3d at

1165 (finding that 28 U.S.C. § 1500 barred two of the plaintiff's three claims when the

plaintiff, at the time it filed suit in the United States Court of Federal Claims, had a

complaint pending in a District Court that involved "nearly identical conduct").

Finally, this court lacks jurisdiction over plaintiff's allegations that the District

Courts' decisions violated the Due Process Clause of the Fifth Amendment. The Due

Process Clause "does not 'mandate money damages by the Government."' Chittenden

v. United States, 126 Fed. Cl. 251, 260 (2016) (quoting Smith v. United States, 36 F.

App'x. 444, 446 (Fed. Cir.) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.

1995)), reh'g denied (Fed. Cir.), cert. denied, 537 U.S. 1010 (2002)), aff'd, 663 F. App'x

934 (Fed. Cir. 2016); see also Golden v. United States, 118 Fed. Cl. 764, 768 (2014)

(finding the court lacked jurisdiction over plaintiff's claim that the United States Supreme

Court violated plaintiff's due process rights by disbarring plaintiff without providing notice

to plaintiff). Also to the extent plaintiff argues the District Courts' decisions violated the

Privilege and Immunities Clause of Article IV of the United States Constitution, this court

likewise finds that it lacks jurisdiction over such a claim because the Privileges and

Immunities Clause does not mandate payment of money by the federal government. See

Howell v. United States, 127 Fed. Cl. 775, 790 (2016); lvaldy v. United States, 123 Fed.

Cl. 633, 637 (2015), aff'd, 655 F. App'x 813, 815 (Fed. Cir. 2016) (citations omitted).

Additionally, this court lacks jurisdiction over claims arising under the Equal Protection

Clause of the Fifth Amendment. See Joshua v. United States, 17 F.3d at 379; Stephenson

v. United States, 58 Fed. Cl. 186, 193 (2003). In deciding whether an applicant is qualified

to practice law before a state court, such as Indiana, and, more particularly, the three

federal District Courts addressed in plaintiff's complaint, each such court must make an

individualized determination as to whether the applicant has satisfied the established

state or federal criteria for admission and continued practice. Each federal court

establishes its own criteria to establish when reciprocal suspension or disbarment is

appropriate. See LCrR. 83.11; N.D. Ind. R. 83-5; S.D. Ind. R. 83-5. Plaintiff does not have

a constitutionally protected property interest in his admissions before a court. See Conti

v. United States, 291 F.3d 1334, 1342 (Fed. Cir. 2002), cert. denied, 537 U.S. 1112

(2003).

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CONCLUSION

For the foregoing reasons, the court lacks jurisdiction to adjudicate any of plaintiff's

claims. Accordingly, the court GRANTS defendant's motion to dismiss. Plaintiff's

complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with

this Opinion.

IT IS SO ORDERED.

~~~

MARIAN BLANK HORN

Judge

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