Weir v. United States

1fn tbe Wniteb ~tates ~ourt of jfeberal ~laints

No. 18-1046C

(Filed: December 21, 2018)

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NICHOLAS WEIR, *

*

Plaintiff, *

Pro Se Plaintiff; RCFC 12(b)(1 ); Subject-

*

Matter Jurisdiction; Money-Mandating

V. *

Source of Law; Equitable Relief; 28 U.S .C.

*

§ 1500; In Forma Pauperis

THE UNITED STATES, *

*

Defendant. *

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Nicholas Weir, Uniondale, NY, prose.

Sean Siekkinen, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

This case arises out of pro se plaintiff Nicholas Weir's efforts to (1) decriminalize

marijuana by reso1t to the judicial process and (2) obtain redress for various alleged violations of

constitutional and civil rights as well as for alleged torts committed against him by federal

officials. Defendant moves to dismiss Mr. Weir's complaint, asserting that the United States

Court of Federal Claims ("Court of Federal Claims") lacks subject-matter jurisdiction to

ente1tain Mr. Weir's claims and that, alternatively, Mr. Weir has failed to state a claim upon

which this court can grant relief. As explained below, the court lacks jurisdiction to consider Mr.

Weir's claims. Therefore, in addition to granting Mr. Weir's application to proceed in forma

pauperis, the comt grants defendant's motion and dismisses the complaint.

I. BACKGROUND

Mr. Weir attended college at the City University of New York. Weir v . Montefiore Med.

Ctr., No. 16-9846, 2018 WL 1033238, at *3 (S.D.N.Y. Feb. 22, 20 18), appeal docketed, No. 18-

813 (2d Cir. Mar. 26, 2018). He believes that the City University of New York and the State of

New York have "conspired to coerce [him] to enlist in the military" and that he "has been

monitored and stalked daily" by New York state agencies, leading him to file a lawsuit in the

7018 0040 0001 1393 1129

New York Court of Claims in 2015. 1 Id. (internal quotation marks omitted). He contends that

from fall 2013 to fall 2015, the university "discriminated against him for repmiing misconducts,

harassments, and criminal offenses" and "engaged in retaliatory actions, including having rogue

military personnel and other government officials engage in frequent poisoning of his food and

spraying toxic gas in his room." Weir v. N.Y. Funded Agencies, No. 17-9001, 2017 WL

8777381, at*! (S.D.N.Y. Dec. 11, 2017) (internal quotation marks omitted).

After attending the City University of New York, Mr. Weir worked as a lab technician at

the Albert Einstein College of Medicine from December 28, 2015, through March 3, 2016.

Weir, 2018 WL 1033238, at *1-2. Although he was terminated ostensibly because he "did not

pass his probationary period," Mr. Weir asserts that the lab terminated his employment due to

racial discrimination and in retaliation for his 2015 New York Comi of Claims lawsuit. Id. at*!,

*3 (alterations and internal quotation marks omitted). On April 7, 2016, Mr. Weir filed another

suit in the New York Comi of Claims against the City University of New York and the State of

New York; that suit was apparently unsuccessful. Weir, 2017 WL 8777381, at * I. He then filed

a Title VII discrimination complaint with the Equal Employment Opportunity Commission and

obtained a certificate to sue. Id. at* I n.1. Since then, Mr. Weir has unsuccessfully sought

redress for the alleged discrimination, retaliation, and harassment in various courts.

Most recently, on July 2, 2018, Mr. Weir filed a complaint against various federal and

state officials in the Supreme Court of the State of New York for Nassau County, which was

docketed as case number 608841/2018; that action was removed to the United States District

Comi for the Eastern District of New York ("Eastern District of New York") on July 31, 2018,

where it was docketed as case number 18-4335. Weir v. Federally Funded Agencies, No.

18-4335, slip op. at 1 (E.D.N.Y. Sept. 21, 2018). In his July 2, 2018 complaint, Mr. Weir

alleged, in pmi, that the defendants had been retaliating against him continuously since October

2013, having

poisoned the food in his room and refrigerator, sprayed an odorless

gas into his car, searched his room, solicited him to use marijuana

on public transportation, compromised his phone service, switched

the wiring on his laptop adapter, opened his mail, purposefully hit

his car while he was driving in order to stage a car accident, placed

toxic substances on his food at a fast food restaurant, stalked him,

disrupted and blocked his internet access, sabotaged several job

opportunities, and bribed his former employer to terminate his

employment.

Id. at 3-4. In other words, Mr. Weir "allege[d] a broad conspiracy involving surveillance of and

interference with his life by the United States and various federal and state actors." Id. at 5-6.

That action was dismissed sua sponte as frivolous on September 21, 2018. Id. at 6. The comi

emphasized that Mr. Weir's "continued filing of repetitive, frivolous complaints constitutes an

1

The outcome of Mr. Weir's 2015 lawsuit in the New York Comi of Claims is not

relevant to resolving defendant's motion to dismiss the instant case.

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abuse of the judicial process." Id. at 7-8 (emphasis added). Mr. Weir then appealed the

dismissal order to the United States Comi of Appeals for the Second Circuit ("Second Circuit"),

where it was docketed as case number 18-3069 and remains pending.

Before case number 608841/2018 was removed to the Eastern District of New York, Mr.

Weir filed his complaint in the instant case on July 16, 2018. In his complaint, Mr. Weir

contends that federal agencies and their employees have violated his Third, Fomih, Seventh, and

Fourteenth Amendment rights; asserts civil rights violations pursuant to 42 U.S.C. §§ 1983,

1985, and 1986; and posits that the listing of marijuana as a Schedule I drug is improper. Comp!.

,r 1. Specifically, he alleges that

[f]ederal agencies and agents retaliated against me for

discrimination (race) and other protected activities that I engaged

in. [Ce1iain named and unnamed individuals] unlawfully entered

my room repeatedly [to] poison my food and spray toxic gas into

my room. They are federal agents. [One of them] intentionally

opened my mail on several occasions. John Doe(s) maliciously

stalk me as I travel to New Jersey from New York and

purposefully interrupted my internet connection. John Doe(s)

solicited me with marijuana on public transportation with the likely

inten[t] to send me to jail or prison.

Id. ,r 3. Mr. Weir requests that the court "read index number 608841/2018 ... for additional

information." Id. He then asks for two forms of"[d]eclaratory relief': (I) the removal of

marijuana "from any schedule ranking" and (2) an unspecified cease-and-desist order "against all

federally funded agencies and [their] agents." Id.

Defendant asks the comi to dismiss Mr. Weir's complaint for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims

("RCFC") or, alternatively, for failure to state a claim upon which this court can grant relief

pursuant to RCFC 12(b)(6). Defendant asse1is that "[n]one of the provisions alleged in the

complaint" are within the court's subject-matter jurisdiction. Def. 's Mot. Dismiss 5. Defendant

also notes that the Comi of Federal Claims does not have jurisdiction to ente1iain tort claims or

to issue the declaratory judgment that Mr. Weir seeks. Id. at 6-7. Finally, defendant observes

that Mr. Weir repeats the same allegations before this court as he did in prior actions and that

those claims have been adjudicated on the merits against him. Id. at 7-8. Consequently,

defendant contends, Mr. Weir's claims before this court are barred by res judicata and thus his

complaint fails to state a claim upon which this court can grant relief. Id. In any event,

defendant remarks, Mr. Weir's claims are not plausible and must be dismissed. Id. at 9-10.

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In his opposition to defendant's motion to dismiss,2 Mr. Weir candidly acknowledges that

"the majority of the circumstances instigating [his] Complaint is rooted in tort," but posits that

"there are aspects that are 'pseudo-tort"' and thus the Court of Federal Claims "should

temporarily extend its judicial jurisdiction in granting declaratory and injunctive relief[]." Pl. 's

Opp'n Def.'s Mot. Dismiss ("Opp'n") I, 3. He explains that he needs injunctive relief in the

form of a "cease and desist order and protective order ... as it relates to federal agents who are

not associated with the State or local government and individuals operating under the disguise of

these agents." Id. at 2. Mr. Weir contends that the "abrnpt dismissals" of his prior cases

amounts to a denial of his "[F]ourteenth [A]mendment right to due process." Id. According to

Mr. Weir, the Court of Federal Claims "has jurisdiction [over] 'any regulation ofan executive

depmiment, "' including the Drug Enforcement Administration, and thus the court should not

dismiss his complaint. Id. at 3.

After defendant filed its reply, the court allowed Mr. Weir to file a surreply. Defendant's

motion is now fully briefed, and because the comi deems oral argument unnecessary,

defendant's motion is ripe for adjudication.

II. LEGAL STANDARDS

A. RCFC 12(b)(l)

In determining whether subject-matter jurisdiction exists, the court generally "must

accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable

inferences in favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d 1159,

1163 (Fed. Cir. 2011 ). With respect to a motion to dismiss for lack of subject-matter jurisdiction

pursuant to RCFC 12(b)( 1), the plaintiff bears the burden of proving, by a preponderance of

evidence, that the comi possesses subject-matter jurisdiction. Id. However, the court is not

limited to the pleadings in considering subject-matter jurisdiction. Banks v. United States, 741

F.3d 1268, 1277 (Fed. Cir. 2014); Pucciariello v. United States, 116 Fed. Cl. 390,400 (2014).

Further, the court has no subject-matter jurisdiction over frivolous claims. Moden v. United

States, 404 F.3d 1335, 1340-41 (Fed. Cir. 2005). For example, there is no subject-matter

jurisdiction over claims that are "so insubstantial, implausible, foreclosed by prior decisions ... ,

or otherwise completely devoid of merit as not to involve a federal controversy." Id. at 1341

(internal quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) ("[A]

finding of factual frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible .... "). If the court finds that it lacks subject-matter

jurisdiction over a claim, RCFC 12(h)(3) requires the couti to dismiss that claim.

2

With his opposition to defendant's motion to dismiss, Mr. Weir filed a motion to

amend his complaint to incorporate the contents of his opposition. Because the court will

consider the contents of Mr. Weir's opposition as if they had been included in the complaint, it

denies Mr. Weir's motion as moot.

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B. RCFC 12(b)(6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

12(b)(6) ifit does not provide a basis for the comi to grant relief. Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss ... for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy."). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must

include in the complaint "enough facts to state a claim to relief that is plausible on its face"

sufficient for the defendant to have "fair notice" of the claim and the "grounds upon which it

rests." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (internal quotation marks

omitted). In other words, a plaintiff must "plead[] factual content that allows the comi to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.

Igbal, 556 U.S. 662,678 (2009) (citing Twombly. 550 U.S. at 556). In ruling on such a motion,

the comi must "accept as true all of the factual allegations contained in the complaint" and any

attachments thereto. Erickson, 551 U.S. at 94 (citing Twombly. 550 U.S. at 555-56); accord

RCFC 10(c) ("A copy of a written instrument that is an exhibit to a pleading is paii of the

pleading for all purposes."); Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320,

1325 (Fed. Cir. 2016) (applying RCFC lO(c) and emphasizing that "a court 'must consider the

complaint in its entirety, ... in particular, documents incorporated into the complaint by

reference, and matters of which a comi may take judicial notice"' (quoting Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308,322 (2007))). However, that presumption does not

apply to "[t]hreadbare recitals of the elements of a cause of action, supp01ied by mere conclusory

statements" or to "a legal conclusion couched as a factual allegation." Igbal, 556 U.S. at 678-79

(internal quotation mai·ks omitted) (citing Twombly. 550 U.S. at 555).

The issue at this stage of litigation is not the sufficiency of defendant's potential defenses

or the likelihood of Mr. Weir's eventual success on the merits of his claim, but simply whether

Mr. Weir has alleged specific facts describing a plausible claim for relief. See Chapman Law

Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) ("The court must

determine 'whether the claimant is entitled to offer evidence to support the claims,' not whether

the claimant will ultimately prevail." (quoting Scheuer v. Rhodes, 416 U.S. 232,236 (1974))).

C. Pro Se Plaintiffs

Pro se pleadings are "held to less stringent standards than formal pleadings drafted by

lawyers" and are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (internal quotation marks omitted). However, the "leniency afforded to a pro se litigant

with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."

Minehan v. United States, 75 Fed. Cl. 249, 253 (2007); accord Henke v. United States, 60 F.3d

795, 799 (Fed. Cir. 1995) ("The fact that [the plaintiff] acted prose in the drafting of his

complaint may explain its ambiguities, but it does not excuse its failures, if such there be."). In

other words, a pro se plaintiff is not excused from his burden of proving, by a preponderance of

evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp.,

298 U.S. 178, 179 (1936); Banks, 741 F.3d at 1277 (citing Reynolds v. Army & Air Force Exch.

Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).

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D. Subject-Matter Jurisdiction

Whether the court possesses jurisdiction to decide the merits of a case is a "threshold

matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Subject-matter

jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case."

Arbaugh v. Y & H Corp .. 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S.

625, 630 (2002)). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction

is power to declare the law, and when it ceases to exist, the only function remaining to the court

is that of announcing the fact and dismissing the cause." Ex parte Mccardle, 74 U.S. (7 Wall)

506, 514 (1868). Therefore, it is "an inflexible matter that must be considered before proceeding

to evaluate the merits ofa case." Matthews v. United States, 72 Fed. Cl. 274,278 (2006); accord

K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party,

or the comt sua sponte, may challenge the comt's subject-matter jurisdiction at any time.

Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. Cl. 203, 209-10 (2016)

(collecting cases).

E. The Tucker Act

The ability of the Comt of Federal Claims to entertain suits against the United States is

limited. "The United States, as sovereign, is immune from suit save as it consents to be sued."

United States v. Sherwood, 312 U.S. 584,586 (1941). The waiver of immunity "may not be

inferred, but must be unequivocally expressed." United States v. White Mountain Apache Tribe,

537 U.S. 465,472 (2003). The Tucker Act, the principal statute governing the jurisdiction of

this court, waives sovereign immunity for claims against the United States, not sounding in tort,

that are founded upon the United States Constitution, a federal statute or regulation, or an

express or implied contract with the United States. 28 U.S.C. § 1491(a)(l) (2012); White

Mountain, 537 U.S. at 472. However, the Tucker Act is merely a jurisdictional statute and "does

not create any substantive right enforceable against the United States for money damages."

United States v. Testan, 424 U.S. 392, 298 (1976). Instead, the substantive right must appear in

another source of law, such as a "money-mandating constitutional provision, statute or regulation

that has been violated, or an express or implied contract with the United States." Loveladies

Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).

F. 28 U.S.C. § 1500

The Comt of Federal Claims does not possess jurisdiction to hear claims that are pending

in another court. 28 U.S.C. § 1500; United States v. Tohono O'Odham Nation, 563 U.S. 307,

311 (201 !); Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013); Res. Invs., Inc. v.

United States, 114 Fed. Cl. 639,647 (2014). Whether this statutory bar to jurisdiction applies is

measured at the time the complaint is filed. Brandt, 710 F.3d at 1379-80; Res. Invs., 114 Fed. Cl.

at 647; Vero Tech. Support, Inc. v. United States, 94 Fed. Cl. 784, 790 (2010).

To determine whether [28 U.S.C.] § 1500 applies, a court must

make two inquiries: (!) whether there is an earlier-filed "suit or

process" pending in another comt, and, if so, (2) whether the

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claims asse1ied in the earlier-filed case are "for or in respect to" the

same claim(s) asse1ied in the later-filed Comi of Federal Claims

action. If the answer to either of these questions is negative, then

the Comi of Federal Claims retains jurisdiction.

Brandt, 710 F.3d at 1374. Two actions are "for or in respect to the same claim ... if they are

based on substantially the same operative facts, regardless of the relief sought in each suit."

Tohono, 563 U.S. at 317.

Whether 28 U.S.C. § 1500 operates to bar this court from exercising jurisdiction in this

case was not raised by the parties, but the court has the responsibility to examine all pertinent

issues relevant to subject matter jurisdiction because "[ c]omis have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz

Corp. v. Friend, 559 U.S. 77, 94 (2010); accord Gonzalez v. Thaler, 132 S. Ct. 641,658 (2012)

("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua

sponte issues that the parties have disclaimed or have not presented.").

III. ANALYSIS

Under a liberal construction of his prose complaint, Mr. Weir is alleging claims for

assault, battery, conspiracy, harassment, and trespass; violations of the Third, Fomih, and

Seventh Amendments; violation of the Due Process Clause of the Fomieenth Amendment; and

civil rights violations. Based on his request that the court to refer to case number 608841/2018,

Mr. Weir asserts that both federal and state officials and agencies have committed these

violations. Mr. Weir also seeks a declaratory judgment that marijuana should not be listed as a

scheduled drug and appears to collaterally attack decisions issued by several federal district

courts. It is clear that the Court of Federal Claims lacks jurisdiction over all of his claims.

Consequently, Mr. Weir's complaint must be dismissed.

A. The United States Is the Only Proper Defendant in the Court of Federal Claims

Mr. Weir apparently understands that the Comi of Federal Claims is a court of limited

jurisdiction. Indeed, he states that he "need[s] injunctive relief ... as it relates to federal agents

who are not associated with the State or local government and individuals operating under the

disguise of these agents" and remarks that he is pursuing actions against state officials in state

court. Opp'n 2. However, as noted above, he refers to illegal actions by both federal and state

actors in his complaint.

In the Comi of Federal Claims, "the only proper defendant ... is the United States, not its

officers, nor any other individual." Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003);

accord RCFC I0(a). Because "the United States itself' is the only proper defendant in the Comi

of Federal Claims, this court lacks jurisdiction "over any claims alleged against states, localities,

state and local government entities, or state and local government officials and employees."

Anderson v. United States, 117 Fed. Cl. 330,331 (2014). Similarly, the Comi of Federal Claims

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lacks jurisdiction "over suits against private parties."3 Edelmann v. United States, 76 Fed. Cl.

376,380 (2007). In other words, "if the relief sought [in the Court of Federal Claims] is against

other than the United States, the suit as to them must be ignored as beyond the jurisdiction of the

comi." Sherwood, 312 U.S. at 584.

Accordingly, to the extent that Mr. Weir complains of improper conduct by parties other

than the federal government, this court lacks jurisdiction over those claims, and they must be

dismissed.

B. The Court of Federal Claims Lacks Jurisdiction Over Mr. Weir's Civil Rights and Tort

Claims

To the extent that Mr. Weir asserts civil rights violations and commissions of various

torts, his claims are outside the reach of this comi's Tucker Act jurisdiction.

First, the Comi of Federal Claims is not a federal district court. Ledford v. United States,

297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Lightfoot v. Cendant Mortg. Corp .. 137 S. Ct.

553, 563 (2017) (distinguishing between the "Comi of Federal Claims" and "federal district

courts").

Second, only federal district courts possess jurisdiction to entertain claims alleging civil

rights violations. 28 U.S.C. § 1343(a)(4) ("The district comis shall have original jurisdiction of

any civil action ... [t]o recover damages or to secure equitable or other relief under any Act of

Congress providing for the protection of civil rights .... "); see, e.g .. Jones v. United States, 104

Fed. Cl. 92, 98 (2012) (explaining that the Comi of Federal Claims has no jurisdiction over

claims based on, among other causes of action, alleged "violations of ... civil rights"); Stamps v.

United States, 73 Fed. Cl. 603, 609-10 (2006) (explaining that"[ e]xclusive jurisdiction to hear

civil rights claims," including violations of 42 U.S.C. § 1986, "resides in the federal district

comis"); Marlin v. United States, 63 Fed. Cl. 475,476 (2005) (explaining that Bivens claims and

claims alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985 must be heard in federal district

courts).

Third, this court lacks jurisdiction to entertain claims sounding in tort. 28 U.S.C.

§ 1491(a); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008).

Under the Federal Tmi Claims Act, 28 U.S.C. §§ 1346(b)(l), 2671-2680, jurisdiction over tmi

claims against the federal government lies exclusively in federal district courts. U.S. Marine,

Inc. v. United States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013). Claims of assault, battery,

3

"Qualified immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (201 !). When a government official commits an illegal act, that act

cannot be attributed to the government because government officials have no authority to violate

the law. Therefore, by alleging illegal conduct by certain government officials, Mr. Weir

necessarily sues those actors in their individual capacities, not their official capacities.

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conspiracy, harassment, and trespass sound in tort. See, e.g., Cycenas v. United States, 120 Fed.

Cl. 485,498 (2015) (conspiracy and trespass); Cox v. United States, 105 Fed. Cl. 213,218

(2012) (harassment); Burman v. United States, 75 Fed. Cl. 727, 729 (2007) (assault and battery).

In short, the court must dismiss any civil rights or tott claims asserted by Mr. Weir.

C. The Court of Federal Claims Lacks Jurisdiction Over Mr. Weir's Constitutional

Claims

In addition to asse1ting civil rights and to1t claims, Mr. Weir alleges the violation of his

Third, Fourth, and Seventh Amendment rights. He fmther alleges a violation of the Due Process

Clause of the Fourteenth Amendment, which can be construed to suggest a violation of the Due

Process Clause of the Fifth Amendment. However, none of these constitutional provisions is

money-mandating. See Conner v. United States, 641 F. App'x 972, 975 (Fed. Cir. 2016)

(unpublished decision) (collecting cases); see also Brown v. United States, 105 F.3d 621, 623-24

(Fed. Cir. 1997) (Fourth Amendment); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.

1995) (Due Process Clauses of the Fifth and Fomteenth Amendments); Abbas v. United States,

124 Fed. Cl. 46, 55-56 (2015) (Seventh Amendment). As stated above, the Comt of Federal

Claims lacks jurisdiction over claims that are "not tied to money-mandating sources of law."

Ivaldyv. United States, 655 F. App'x 813,815 (Fed. Cir. 2016) (per curiam) (unpublished

decision). Accordingly, Mr. Weir's constitutional claims are beyond the jurisdiction of this

court.

D. The Court of Federal Claims Lacks Jurisdiction Over Criminal Matters

Next, Mr. Weir alleges that various individuals "unlawfully" tried to poison him. To the

extent that this allegation describes criminal conduct, the comt cannot consider it. It is well

established that the Court of Federal Claims "has no jurisdiction to adjudicate any claims

whatsoever under the federal criminal code." Joshua v. United States, 17 F.3d 378, 379 (Fed.

Cir. 1994) (internal quotation marks omitted) (summarily affirming a Comt of Federal Claims

dismissal order); see also Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (collecting

cases). Therefore, to the extent that Mr. Weir seeks redress for criminal violations, such claims

must be dismissed as beyond the jurisdiction of this comt.

E. The Court of Federal Claims Lacks Jurisdiction to Entertain Plaintiff's Collateral

Attack Against the Decisions of Other Courts

In addition to alleging claims involving civil rights, torts, and criminal matters, Mr. Weir

appears to be collaterally attacking the dismissals of his lawsuits in various courts. However, the

Tucker Act does not provide the Court of Federal Claims with jurisdiction to ente1tain such

collateral attacks. See, e.g., Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352

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

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

Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) ("[T]he Comt of Federal Claims

cannot entertain a taking claim that requires the court to scrutinize the actions of another

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tribunal." (internal quotation marks omitted)). Mr. Weir's recourse concerning prior adverse

decisions is "the statutorily defined appellate process," Shinnecock Indian Nation, 782 F.3d at

1353 (citing 28 U.S.C. § 1291), whether in state or federal court. In short, the court cannot

consider Mr. Weir's collateral attack on prior court decisions.

F. The Court of Federal Claims Lacks Authority to Grant Equitable Relief

Finally, Mr. Weir seeks a permanent injunction (in the form of a cease-and-desist order)

and a declaratory judgment (delisting marijuana as a scheduled drug). However, it is well settled

that the Court of Federal Claims generally lacks the authority to grant such equitable relief. See

Bowen v. Massachusetts, 487 U.S. 879,905 (1988) (holding that the Court of Federal Claims

lacks the "general equitable powers of a district court to grant prospective relief'). This court is

only authorized to award equitable relief in certain specified situations. See id. at 905 n.40;

Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep't of Homeland Sec., 490 F.3d 940, 943

(Fed. Cir. 2007); Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed. Cir. 1994). None of those

circumstances applies here. See 28 U.S.C. § 1491(a)(2) (providing the court with jurisdiction to

issue, "as incident of and collateral to" an award of money damages, "orders directing restoration

to office or position, placement in appropriate duty or retirement status, and correction of

applicable records"); id. (providing the court with jurisdiction to render judgment in

nonmonetary disputes arising under the Contract Disputes Act of 1978); id.§ 1491(b)(2)

(providing the court with jurisdiction to award declaratory and injunctive relief in bid protests);

id.§ 1507 (providing the court with jurisdiction to issue declaratory judgments under 26 U.S.C.

§ 7428). Mr. Weir's statement that "the monetary damage that [he is] seeking in regards to the

ranking of weed is 4 cents," Pl.'s Surreply I, does not convett his request for a declaratory

judgment into a claim for money damages. In short, this coutt lacks jurisdiction to award

equitable relief in the instant case.

G. Mr. Weir's Claims Are Pending in Another Court

In any event, Mr. Weir's suit is barred in this court by the application of28 U.S.C.

§ 1500, which provides that the Coutt 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 coutt any suit or

process against the United States .... " When Mr. Weir filed his complaint in the instant case,

the same claims as assetted therein were pending in New York state court.

First, Mr. Weir had "an earlier-filed 'suit or process' pending in another court," Brandt,

710 F.3d at 1374, when his complaint was filed in this court on July 16, 2018. The relevant

action is case number 608841/2018 in Nassau County, which was filed on July 2, 2018, and was

still active when Mr. Weir filed his complaint here. See Cent. Pines Land Co. v. United States,

697 F.3d 1360, 1365 (Fed. Cir. 2012) ("[J]urisdiction of the coutt depends upon the state of

things at the time of the action brought." (quoting Grupo Dataflux v. Atlas Global Grp .. 541 U.S.

567, 570 (2004))).

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That the earlier case was pending in state court, rather than federal court, is of no

moment. By its own terms, 28 U.S.C. § 1500 is concerned with earlier-filed actions that are

pending "in any other court .... " (Emphasis added). That language is properly read to

encompass state court as well as federal court. Cf. Lasker-Goldman Corp. v. United States, 4 Cl.

Ct. 89, 90 (1983) (observing that if the plaintiff had alleged, in a lawsuit pending in state court,

that one of the named defendants was acting as an agent of the federal government at the time of

the events in question, the pendency of that lawsuit "would deprive [the Court of Federal Claims]

of jurisdiction" by operation of28 U.S.C. § 1500). Congress could have easily restricted the

scope of 28 U.S.C. § 1500 to federal court, yet it chose not to do so. That choice advances the

purpose of the statute-to "save the Government from burdens of redundant litigation," Tohono,

563 U.S. at 315---even though the United States cannot generally be sued in state court, but see,

~ , 28 U.S.C. § 2410 (allowing the federal government to be named as a defendant in certain

state court actions concerning real property). After all, when the United States is sued in state

court, removal to federal court is not automatic. See id. § 1442(a) (providing that state court

lawsuits against the United States "may be removed" to federal district court (emphasis added)).

Because the United States was a named defendant in case number 608841/2018, it had to enter

an appearance to remove the action to the Eastern District of New York.

Second, that case-which is now pending at the Second Circuit-involves the same

claims as asserted in this court. The two cases appear to be "based on substantially the same

operative facts," Tohono, 563 U.S. at 317, because Mr. Weir alleges, in both cases, that he was

the subject of civil rights violations, discrimination, retaliation, stalking, harassment,

misappropriation of mail, interference with his Internet connection, and solicitation to participate

in criminal activity. Moreover, Mr. Weir specifically asked this comt to refer to the earlier case.

Therefore, since Mr. Weir had an earlier-filed suit pending in New York state court when

he filed his complaint in the Court of Federal Claims, and the same operative facts underlie both

actions, the Court of Federal Claims is divested of jurisdiction pursuant to 28 U.S.C. § 1500.

H. The Court Declines to Transfer This Case

When the Court of Federal Claims lacks jurisdiction over a claim, it is empowered to

transfer such claim to an appropriate court if doing so "is in the interest of justice." 28 U.S.C.

§ 1631. "Transfer is appropriate when three elements are met: (1) [t]he transferring comt lacks

subject matter jurisdiction; (2) the case could have been filed in the court receiving the transfer;

and (3) the transfer is in the interests of justice." Brown v. United States, 74 Fed. Cl. 546,550

(2006). The failure of even one of these elements renders transfer improper.

Transferring Mr. Weir's case to an appropriate district court will not "serve the interests

of justice." Khalil v. United States, 133 Fed. Cl. 390,393 (2017). In Khalil, another judge of

this court declined to transfer the case because doing so would "serve[] no purpose" since the

plaintiffs claims had already been considered by a district court. Id. In the instant case, Mr.

Weir has similarly "already availed himself of the opportunity," id., to present his claims against

the federal government to a district court; indeed, he has an appeal pending at the Second Circuit.

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Therefore, as in Khalil, transferring Mr. Weir's claims would be futile. Accordingly, the court

declines to transfer any part of Mr. Weir's case to another court.

IV. MR. WEIR'S APPLICATION TO PROCEED IN FORMA PAUPERIS

To proceed with a civil action in this court, a plaintiff must either pay $400 in fees-a

$350 filing fee plus a $50 administrative fee--or request authorization to proceed without

payment of fees by submitting a signed application to proceed in forma pauperis. 4 See 28 U.S.C.

§§ 1915, 1926; RCFC 77(c); see also Waltner v. United States, 93 Fed. Cl. 139, 141 n.2 (2010)

(concluding that 28 U.S.C. § 1915(a)(l) applies to both prisoners and nonprisoners alike).

Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that (I) lists all of their

assets, (2) declares that they are unable to pay the fees, and (3) states the nature of the action and

their belief that they are entitled to redress. 28 U.S.C. § 1915(a)(l ). Evaluation of a plaintiffs

ability to pay is "left to the discretion of the presiding judge, based on the information submitted

by the plaintiff." Alston-Bullock v. United States, 122 Fed. Cl. 38, 45 (2015).

Mr. Weir filed, concurrent with his complaint, an application to proceed in forma

pauperis. Mr. Weir has fulfilled all three requirements of28 U.S.C. § 1915(a)(l), and the court

is satisfied that he is unable to pay the filing fee otherwise required by RCFC 77.l(c). Therefore,

the court grants Mr. Weir's application and waives his filing fee.

V. CONCLUSION

The comt has considered all of the parties' arguments. To the extent not discussed

herein, they are unpersuasive, meritless, or unnecessary for resolving the matters currently before

the court.

Regardless of whether Mr. Weir was treated unfairly in his past employment, the Comt of

Federal Claims plainly lacks jurisdiction to entetiain his claims. Accordingly, the comt

GRANTS defendant's motion to dismiss for lack of subject-matter jurisdiction pursuant to

RCFC 12(b)(l). In addition, the court GRANTS Mr. Weir's application to proceed in forma

pauperis. The court DENIES AS MOOT all other pending motions. Mr. Weir's complaint is

DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction. No costs. The

clerk is directed to enter judgment accordingly.

4

While the Court of Federal Claims is not generally considered to be a "court of the

United States" within the meaning of title 28 of the United States Code, 28 U.S.C. § 451, the

comt has jurisdiction to adjudicate applications to proceed in forma pauperis. See 28 U.S.C.

§ 2503(d) (deeming the Court of Federal Claims to be a "court of the United States" for purposes

of28 U.S.C. § 1915).

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The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order

would not be taken in good faith because, as asserted, Mr. Weir's claims are clearly beyond the

subject-matter jurisdiction of this court.

IT IS SO ORDERED.

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