Barry v. United States

In the Um'ted States Court of Federal Claims

No. 18-1387T

(Filed: March 28, 2019)

(NOT TO BE PUBLISHED)

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JOHN W. BARRY, et al.,

Plaintiffs,

UNTTEDSTATES,

Defendant.

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John W. Ban‘y, pro se, Pemberton, NJ; Karrine N. Montaque, pro se, Valley Stream, NY;

Moses Nelson, pro se, Bridgeport, CT; Joel Adeyemi Omotosho, pro se, Bridgeport, CT; julio

Ruiz, pro Se, Bridgeport, C'f; Patricia Hinds, pro se, West l~laven, CT; Elba M. Viera Lopez, pro

se, Bridgeport, CT; Rosemarie M. Lastimado~Dradi, pro se, Ridgefleld, WA; Elvah Bliss

l\/liranda, pro se, Waipahu, HI; Daniel B. Miranda, pro se, Waipahu, HI; Marciaminajuanequita

R. T. Dumlao, Honolulu, HI; Rosalie O. Libanag, pro se, EWa Beach, Hl; Rodrigo B. Libanag,

pro Se, Ewa Beach, HI; Hannah K. Hart, pro se, Honolulu, Hl; Brigida E. Chook, pro se, EWa

Bcach, Hl; Michael T. Chocl<, pro Se, EWa Beach, HI; Leonicio Bautista, pro se, Honolulu, HI;

Scott F. I~lawver, pro se, Ewa Beach, HI; Beverly Braumuller-Hawver, pro se, Ewa Beach, HI;

Paul K. Meyer, pro Se, Kilauea, Hl.

Katherine R. Powers, Trial Attorney, Court of Federal Claims Section, Tax Division,

United States Department of Justice, Washington, D.C., for defendant With her on the motion

and brief Were Richard E. Zuckennan, Principal Deputy Assistant Attorney General, Tax

Division, United States Department of Justice, Washington, D.C., and David l. Pincus, Chief,

Court of F ederal Clairns Section, Tax Division, United States Departrnent of Justice,

Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Twenty plaintiffs have brought Suit in effect contending that the Internal Revenue Service

(“IRS”) Was and is Without authority to pursue the collection of tax against them. They identify

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nine separate causes of action premised on a variety of tort, constitutional, and statutory bases.l

The government has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the Rulcs of

the Couit of Federal Claims (“RCFC”) for lack of subject-matter jurisdiction United States’

Mot. to Dismiss (“Def.’s l\/Iot.”), ECF No. 134. Because the court lacks subject-matter

jurisdiction over the plaintiffs’ claims, the government’s motion to dismiss the complaint is

GRANTED. The remaining motions by the government and the plaintiffs are all DENIED as

moot.

BACKGROUND

This litigation commenced on September 7, 2018, When the twenty named plaintiffs filed

their complaint With the court. Compl., ECF No. l. Soon after the filing, however, the plaintiffs

moved to amend their complaint to add additional plaintiffs and causes of action. Pls.’ Mot. to

Arn. Sealed Compl. (“Arn. Compl.”), ECF No. 4.2 In the first amended complaint, the plaintiffs

allege nine claims against the federal government and a broad array of government officials in

their individual capacities See, e.g., Am. Cornpl. W 49 (naming the United States as a

defendant), 50 (naming the Secretary of the Treasury as a defendant), 51~89 (naming 39 other

government employees), 90 (naming 100 “unknovvn others” as defendants).

Specifically, the plaintiffs allege: (I) “intentional interference With the person [and]

invasion of privacy,” Arn. Compl. at 75-78; (II) “intentional interference With property, trespass

to land, trespass to chattels and chattel paper instruments,” Am. Compl. at 78-82', (ill)

“violations of procedural and fundamental due process of law pursuant to 5 U.S.C. § 552(a),

[and] the [Fourth], [Fifth], and [Fourteenth] Amendments [as Weil as to violations of state

constitutions] . . . ,” Am. Compl. at 82-84; (iV) “violations of civil rights . . . ,” Am. Compl. at

85~89', (V) “abuse of process,” Am. Compl. at 89-93; (Vi) violations of fvarious tax laws and

regulations] culminating in unlawful conduct of an enterprise through a pattern of racketeering

activity and mail fraud,” Am. Compl. 94-98; (Vil) “common law joint tortfeasor” liability, Am.

Compl. at 98-99; (VIII) “intentional infliction of emotional distress and mental anguish,” Am.

Compl. at 99-102; and (IX) “defamation, libel and slandei',” Am. Compl. at 102~04. Plaintiffs

seek monetary and equitable relief for each of these claims. Am. Cornpi. at 105-10.

'fhe catalyst for these claims Was a multitude of collection actions instituted by the iRS

from 2000 to 2017, along With a United States Tax Court decision related to some of the

collection actions. See Order of Dismissal for Lack of Jurisdiction, Barry v. ]RS Comm ’r, U.S.

lPlaintiffs have also filed a series of duplicative motions requesting ancillary relief,

including “Motion[s] to Claim and Exercise Constitutionaily Secured Rights and Privileges,”

e,g., ECF Nos. 15-33, 36-37, 43. “Motion[s] for Default Judgrnent,” e.g., ECF Nos. 63-65, 67-

82, 85, 89-90, “l\/Iotion[s] to Strike,” e.g., ECF Nos. 91, 94, 96, 98, 100-101, 103, 105, 107, 109-

110, 112, 114, and “Motion[s] for Sanctions,” e.g., ECF Nos. 150-151, 154, 156, 158.

2Plaintiffs’ first amended complaint is 944 pages long and does not include page

numbers Therefore, all citations to the first amended complaint Will refer to numbered

paragraphs or the ECF page number.

Tax Court, No. 9682-18 (July 23, 2018).3 Among other things, the plaintiffs contend that

because the 'l`ax Couit dismissed Mr. Barry’s petition for lack of jurisdiction, see e.g., Am.

Compl. ii 157, the IRS lacked jurisdiction to take any action regarding the several tax issues and

therefore acted Without authority. ln short, the plaintiffs contend that if the U.S. Tax Court lacks

jurisdiction over a tax issue, then any action taken by the IRS regarding that tax issue must be

outside the scope of the agency’s powers and therefore ultra vires.

The complaints Were initially filed under seal because they contained unredacted personal

information Accordingly, the government moved to require plaintiffs to file a redacted version

of the complaint that omitted all sensitive personal information, see Mot. . . . for a Redacted

Version of the Compl., ECF No. 6, arguing that “public access to judicial documents” is a

“common law right,” id. at 2 (citations omitted). The court granted the government’s motion on

November 20, 2018, and required the plaintiffs to “file redacted versions of their complaint, first

amended complaint, and second amended complaint that omit all personal information.” Order

OrNOV. 19, 2018, ECF No. iz.“

Additionally, two individual plaintiffs, Rosemarie M. Lastimado-Dradi and Paul K.

Meyer, filed notices With the court in vvhich they sought to act as representatives for other

plaintiffs See Notice of Rosemarie M. Lastimado-Dradi (Nov. 16, 2018), ECF No. 10, Notice of

Paul K. l\/leyer (Nov. 16, 2018), ECF No. ll. On November 19, 2018, the court denied

plaintiffs’ request, ruling that RCFC 83.1(a)(3) “limits the ability ofpro se plaintiffs to represent

other pro se litigants before this couit.” Order of Nov. 19, 2018, ECF No. 13.5 Subsequently,

plaintiffs filed numerous duplicative motions. See supra, at 2 n. l.

Proceedings in this case vvere suspended due to the lapse in government appropriations

for the Department of Justice, Which began on Decem'oer 2l, 2018. See Mot. for Stay of Case

Proceedings in Light of Lapse of Appropriations (Jan. 2, 2019), ECF No. 61; Order Granting in

Part and Denying in Part [Motion for Stay] (Jan. 7, 2019), ECF No. 62. Plaintiffs opposed the

suspension and thereafter filed various motions, asking the court to vacate its order suspending

the case and also to strike the government’s motion to stay. See, e.g., Mot. to Strike Mot. for

Stay, filed by Joel Adeyemi Omotosho (Jan. 22, 2019), ECF No. 9l; l\/lot. to Vacate Order on

Mot. to Stay, filed by Radames Rodriguez (Jan. 22, 2019), ECF No. l02.

The case resumed on January 31, 2019, after the restoration of funding See Notice of

Restored Appropriations, ECF No. 131. Soon thereafter, the government responded to the

3The collection actions included imposition of liens, levies on property, vvage

garnishment, and Seizing of assets for the non-payment of taxes or collection of taxes. See, e.g.,

Am. Compl. atli 139.

4On November 16, 2018, plaintiffs had filed a motion to further amend their complaint,

See ECF No. 9, and the court had not acted on that motion by November 19, 2018.

5Because the plaintiffs did not fall into one of the exceptions to RCFC 83.l(a)(3), the

court required that “each plaintiff in this case must be responsible for his or her own claims.”

Order of Nov. l9, 20l8, at 2. The court also noted that “RCFC 17 requires that ‘any action must

be prosecuted in the name of the real party at interest.”’ Id. (quoting RCFC 17(a)(l)).

3

plaintiffs’ numerous motions for default judgment by moving to dismiss the complaint for lack

of jurisdiction pursuant to RCFC l2(b)(l), ECF No. l34, and also by moving to amend the

caption to remove the names of individual defendants, ECF No. 132. The plaintiffs responded

by filing a flurry of their own motions and responses over the next month. See, e.g., Resp. to

Mot. to Dismiss, filed by Karrine N. l\/lontaque (Feb. 25, 2019), ECF No. 141; l\/lot. for

Sanctions Pursuant to Rule 11, filed by Moses Nelson (Feb. 27, 2019), ECF No. 151; Reply to

Resp. to l\/Iot. for Default ludgment, filed by Leonicio Bautista (Mar. 7, 2019), ECF No, 213.

ll`he government replied to the plaintiffs’ responses and responded to their motions for sanctions

on March 18, 2019, ECF Nos. 232, 233.

STANI)ARDS FOR DECISION

Rule ]2(1))(1) - Lack ofSubjecr-Matrer Jurisdz'ction

As a threshold matter, jurisdiction must be established before the court may proceed to

the merits of a case. Steel Co. v. Citizem‘for a Betrer Env ’t, 523 U.S. 83, 94 (1998). When

jurisdiction is challenged, the plaintiff bears the burden of establishing subject matter

jurisdiction M. Maropakis Cm'pentry, Inc. v, United States, 609 F.3d l323, 1327 (Fed. Cir.

2010). Although a pro se litigant is afforded some leniency as to legal formalities, this does not

relieve him or her from meeting his or her jurisdictional burden. Kelley v. Secretary, United

Sfafes Dep’t ofLabor, 8l2 F.2d 1378, 1380 (Fed. Cir. 1987).

The Tucl<er Act provides this court with jurisdiction to entertain “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)(l). The

Tucker Act, however, is a jurisdictional statute that creates no substantive right to money

damages fn re United States, 463 F.3d 1328, 1333 (Fed. Cir. 2006). Thus, to establish

jurisdiction, a plaintiff is required to “point to a substantive right to money damages against the

United States.” Hamler v. United Sta.tes, 63 F.3d 1097, 1101 (Fed. Cir. 1995) (citing United

Si‘ates v. Testan, 424 U.S. 392, 398 (19'76)).

A complaint raising claims that are outside this court’s jurisdiction must be dismissed, for

the court has no adjudicative power over it. RCFC 12(h)(3) (“If the court determines at any time

that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also Steel Co.,

523 U.S. at 94-95; Thoen v. United States, 765 F.2d l110, 1116 (Fed. Cir. 1985); Gray v. United

States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).

ANALYSIS

A. Rule 12(b)(1) ~ Lack of Subject-Matter Jurisdiction

l. Coun!'s I, II, V, VH, VIIL and IXAllege Tort Claims and Cannot be Heara' by this

Court

“‘Federal courts are courts of limited jurisdiction,’ and [the Court of Federal Claims] is

no exception.” Gray, 69 Fed. Cl. at 98 (quoting RHI Holdi`ngs, Inc. v. United Srafes, 142 F.3d

1459, 1461) (Fed. Cir. 1998) (internal citation omitted)). And, for this court to have jurisdiction,

Congress must consent for the federal government to be sued through a waiver of sovereign

immunity. ld. (citing United States v. Whi'te Mounlaz'n Apache Tribe, 537 U.S. 465, 472 (2003)).

Sovereign immunity, as a principle, immunizes the government from civil liability or criminal

prosecution The government, however, has waived sovereign immunity in certain, defined

circumstances In interpreting these waivers, courts follow the “established practice of

construing Waivers of sovereign immunity narrowly in favor of the sovereign.” Id. at 102 (citing

La.ne v. Pena, 518 U.S. 187, 195 (1996)); see also Lane, 518 U.S. at 187 (“A waiver of sovereign

immunity must be unequivocally expressed in statutory text . . . will not be implied . . . [and] will

be strictly construed.”) (citations omitted)).

The 'l`ucker Act is one of the Waivers to the government’s sovereign immunity. “As

interpreted by the United States Supreme Court, the Tucl<er Act waives sovereign immunity to

allow jurisdiction [for the United States Court of Federal Claims} 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.”

Kernper v. United Staies, 138 Fed. Cl. 1, l4 (2018) (citing United States v. Navajo Nalion, 556

U.S. 287, 289-90 (2009)) (other citations omitted). But the Tucl<er Act does not waive sovereign

immunity with regards to tort claims “[T]he United States Court of Federal claims lacks . . .

jurisdiction to entertain tort claims.” Shearin v. United Sfates, 992 F.2d 1195, 1196-97 (Fed. Cir.

1993); see also Schillz`nger v. Uni!eal Sfares, 155 U.S. 163, 169 (1894) (“[C]ases sounding in tort

are not cognizable in the court of claims.”); Minehan v. United States, 75 Fed. Cl. 249, 259

(2007) (“['l`jhe Court of Federal Claims has no jurisdiction over claims which lie in toit.”); see

also 28 U.S.C. § 1491(a)(1). Congress, when enacting the Tucker Act, explicitly excluded tort

claims from the court’s jurisdiction 28 U.S,C. § 1491(a)(1) (Vestingjurisdiction in this court

for “any claim against the United States . . . not sounding in tort.”) (emphasis added). Thus, in

light of the express text of the Tucker Act, there is no question that this court cannot entertain

tort claims against the government

The plaintiffs have accused the government of a Wide variety of tortious conduct For

example, Count 1 alleges, “intentional invasion of person [and] privacy” through conduct by the

IRS, Am. Compl. at 75-78, while Count IX alleges “defamation, libel, and slander,” Am. Compl.

at 102-04. As Congress has not waived its sovereign immunity for this court to hear these and

similar tort claims, and Counts I, II, V, VII, Vlll, and IX of the plaintiffs’ complaint all plead

claims based on tolt, the court cannot hear these claims and they must be dismissed pursuant to

RCFC 12(b)(1) for lack of jurisdiction

2. Counrs IH, lI/f ana’ VI Can.not be Heard by this Court as they are Not Money~

Mandatfng

The plaintiffs’ other enumerated claims against the government are primarily

constitutional in nature Count IIl alleges “violations of procedural and fundamental due process

of law pursuant to 5 U.S.C. § 552(a), [and] the {Fouith], [Fifth], and {Fourteenth] Amendments.”

Am. Compl. at 82-84. Count IV alleges “violations of civil rights” pursuant to various statutes,

Bz`vens v. Si'x Unknown F ederal Narcotfcs Agenfs, 403 U.S. 388 (1971), and the Fourth and Fifth

Amendrnents. Am. Compl. at 85-89.

As previously stated, the Tucker Act is a jurisdictional statute that creates no substantive

right to money damages In re United States, 463 F.3d 1328, 1333 (Fed. Cir. 2006). To

establish jurisdiction, plaintiffs must “point to a substantive right to money damages against the

United States.” Hamlet, 63 F.3d at 1101 (citing Tesran, 424 U.S. at 398). Thus, a claim must be

money-mandating for this court to have jurisdiction under the Tucker Act. See Jan ’s Heli'copter

Serv., lnc. v. F.A.A., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cly. v. United

Srares, 487 F.3d 871, 876 (Fed. Cir. 2007)); see also fn re United Stares, 463 F.3d at 1333-34

(“A substantive law is money-mandating only if it ‘can be fairly interpreted as mandating

compensation by the [f]ederal [g]overnment for the damage sustained.”’) (quoting United Srates

v. Mitchell, 463 U.S. 206, 217 (1983)) (alteration added).

-Here, however, the constitutional provisions upon which the plaintiffs base their

complaint on are not money-mandating First, the Due Process Clause of the Fifth Amendment

is not money-mandating See In re United States, 463 F.3d at 1335 n.5 (“We agree that because

the Due Process Clause is not money-mandating, it may not provide the basis for jurisdiction

under the Tucl<er Act.”); see also Mallenberg v. United States, 857 F.2d 770, 772-73 (Fed. Cir.

1988) (“{I]t is firmly settled that [the Due Process Clause of the Fifth Amendment] do[es] not

obligate the United States to pay money damagesl . . . [and] do not trigger Tucker Act

jurisdiction.”) (citations omitted)). Second, the Due Process Clause of the Fourteenth

Amendment is also not money-mandating See Sm.irh v. United States, 709 F.3d 1114, l116

(Fed. Cir. 2013) (“The law is well settled that the Due Process Clauses of both the Fifth and

Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause

of action under the Tucker Act.”) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.

l995)); see also Ni`e v. United Srates, 124 Fed. Cl. 334, 341-42 (2015). Third, although the exact

basis of the plaintiffs’ Fourth Amendment claim is not apparent, this court is nevertheless

powerless to hear it. Mz'lgroom v. United States, 122 Fed. Cl. 779, 800 (2015) (“This court ij is

without jurisdiction to hear claims alleging violations of the Fourth Amendment.”) (citing,

among others, Roberson v. United States, 115 Fed. Cl. 234, 240 (2014) (“[T]he Fourth

Amendment is not money-mandating.”)) (other citations omitted). Accordingly, the

constitutional claims set out in Counts Ill and lV of the plaintiffs’ complaint must be dismissed

pursuant to RCFC l2(b)(1) for lack of jurisdiction

Plaintiffs also allege Bi`vens claims against the government for the “heavy handed

collection action[s] against the [p]laintiffs by seizing privacy property chattels and chattel paper

instrument bank accounts, garnishing paychecl<s, placing liens on land and hcmes, implementing

a violent search invading the privacy of [p]laintiffs without just probable cause, among other

egregious ultra vires actions.” Am. Compl. ll 194. But Bivens actions are outside of this court’s

jurisdiction See Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). “In Bivens, the

Supreme Court held a party may, under certain circumstances, bring an action for violations of

constitutional rights against [g]overnment officials in their individual capacities.” Ial (citing

Bivens, 403 U.S. 388). This court, however, may only hear claims against the United States,

“not against individual federal officials.” Ial. (citing 28 U.S.C. § 1491(a)). Thus, all claims

based on Bivens in Count IV must be dismissed pursuant to RCFC 12(b)(1) for lack of

jurisdiction

Count lV further alleges violations civil rights pursuant to 28 U.S.C. § 1343(a) and 42

U.S.C. § l985. But like plaintiffs’ other claims, this court lacks jurisdiction to hear claims

arising under these statutes 28 U.S.C. § l343 (a)(3) “specifically provides for jurisdiction in the

United States District Courts,” not this court. Kortlana’er v. United States, 107 Fed. Cl. 357, 370

(2012). ln turn, this court cannot hear § 1985 claims. See 28 U.S.C. § 1343(a) (vesting district

courts With “original jurisdiction” for any civil action “[t]o recover damages . . . by any act done

in furtherance of any conspiracy mentioned in [42 U.S.C. § 1985]” and “[t]o redress the

deprivation, under color of any State law . . . of any right, privilege or immunity secured by the

Constitution of the United States.”)', see also Sharpe v. United States, 112 Fed. Cl. 468, 476

(2013) (“[J]urisdiction to hear such a claim [arising under 42 U.S.C. § 1985 in conjunction with

28 U.S.C. § 1343(a)] belongs exclusively to the district courts . . . and the Court of Federal

Claims is not a district court.”) (citing Lealfora’ v. United States, 297 F.3d 1378, 1382 (Fed. Cir.

2002) (per curiam)). Thus, all claims in Count lV relating to 28 U.S.C. § 1343(a) and 42 U.S.C.

§ 1985 must be dismissed pursuant to RCFC 12(b)(1) for lack ofjurisdiction.6

3. Civil Rico Class Actions Cannor be Mai`nlained Against the Government

Throughout their amended pleadings and motions, the plaintiffs refer to their complaint

as a “Verified Civil R.I.C.O. Complaint.” See, e.g. , Am. Compl. at 3. But any claims relating to

a civil RlCO action must also be dismissed “Established case law under RlCO makes it clear”

that neither the United States nor an agency of the United States can “commit a crime actionable

under RlCO.” Wolfv. United States, l27 Fed. Appx. 499, 500-01 (Fed. Cir. 2005). ln essence,

as the government “cannot be liable for criminal acts under RlCO . . . it cannot be liable for

damages under civil RlCO provisions.” ld. Accordingly, all claims in the complaint to a civil

RlCO action must be dismissed pursuant to RCFC 12(b)(l) for lack of jurisdiction

CONCLUSION

For the reasons stated, defendant’s motion to dismiss is GRAl\I'l`ED.7 The clerk shall

enter judgment in accord with this disposition

No costs.

lt is so ORDERED.

W%f’)

chair-aff Ijéaé»w

Senior ludge

6'1`his court also lacks jurisdiction over criminal claims, see Joslzua v. United States, 17

F.3d 378, 379 (Fed. Cir. 1994), and accordingly, the criminal allegations of Counts IV and Vl

cannot survive.

7All of the other pending motions are DENIED as moot.

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