Sepehry-Fard v. United States

lJn tW @nftr! $ltstts {.ourt of frlersl @Iuims

No. 19-560C

(Filed: May 9,2019)

NOT FOR PUBLICATION

Fareed Sepehry-Fard

Pro se; Sua Sponte Dismissal; Lack of

Pro Se Plaintiff, Subj ect Matter Jurisdiction; First

Amendment; Fourth Amendment;

Fifth Amendment; Federal Criminal

Code: State Law.

THE LTNITED STATES,

Defendant.

ORDER OF DISMISSAL FOR LACK OF JURISDICTION

Plaintiff Fareed Sepehry-Fard, proceedingpro se, filed the instant complaint

against the united states ("the govemment") alleging that the Department of Justice

C'DOJ') defaulted on its obligation to arrest multiple individuals for committing felonies

against the plaintiff. compl. at pp. l, 5,7 . The plaintiff asks the court to enforce the

plaintiffs "Notice of Default"l and requests an oral hearing under the Federal Rules of

Evidence 201(e).2 Compl. at pp. 1-2, 5. The plaintiff claims that this court has iurisdiction

t Plaintiff attached

as Exhibit 1 a "Notice of Default" which appears to be a letter sent by the

plaintiffto the President, Department ofJustice, Pentagon, and the United States Secret Servrce

demanding the arrest of multiple individuals. Comol. at 12- I 3.

2

Rule 2011e; of the Federal Rules ofEviden.. ,tuG. "[o]n timely request, a party is entitled to

be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the

court takesjudicial notice before notifying a party, the party, on request, is still entitled to be

heard."

over the plaintiff s claims under 42 U.S.C. $ 1990,3 t8 U.S.C. $$ 2,3,4,246,65t, 1346,

1512,4 33 U.SC. $ 1365,5 tort law, two Executive Orders,6 the First, Fourth, and Fifth

Amendments of the United States Constitution. and the Constitution of the State of

California.

The plaintiffls complaint must be dismissed because this court does not have

subject matter jurisdiction over any ofthe plaintiff s constitutional, tort based, statutory,

or state law claims. Accordingly, under Rule 12(h)(3)? of the Rules of the United States

Court of Federal Claims C'RCFC') the plaintiff s complaint is DISMISSED.

The Tucker Act grants this court 'Jurisdiction to renderjudgment upon any claim

against the United States founded either upon the Constitution, or any Act of Congress or

any regulation ofan executive department, or upon any express or implied contract with

the United States . . . in cases not sounding in torr." 28 U.S.C. g la91(a)(1). In order for a

claim to fall within fall within the scope of the Tucker Act, "a plaintiff must identi$r a

separate source of substantive law that areates the right to money damages." Fisher v.

United States, 402 F .3d 1167 , 1772 (Fed. Cir, 2005) (en banc in rclevant part). The court

must "'satis$, itselfthat it has jurisdiction to hear and decide a case before proceeding to

'42 U.S.C. $ 1990 permits courts to fine marshals that do not enforce a magistrate judge's

warrant issued under 42 U.S.C. 0 1989.

4

l8 U.S.C. gg I er seq. conlains rhe Federal Criminal Code.

' U.S.C. $ 1365 is the citizen suit provision in the Clean Water Act.

6

33

The plaintiffrefers to the President's Executive Order dated December 21, 2017 and Executrve

Order 13849.

7

nute tZltr;1:; provides "[i]f the courl determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action."

the merits."' Hardie v. United States,367 F.3d 1288,1290 (Fed. Cir. 2004) (quoting

PIN/NIP, Inc. v. Platte Chem. Co.,304 F.3d 1235,1242 (Fed. Cir. 2002)).

The plaintiffhas the burden ofproving jurisdiction by a preponderance of the

evidence. Reynolds v. Army & Air Force Exch, 9erv.,846F.2d746,748 (Fed. Cir. 1988.

Although the pleadings of pro se plaintiffs will be held "'to less stringent standards than

formal pleadings drafted by lawyers,"'./o hnson v. United States,4l l F. App'x 303, 305

(Fed. Cir. 2010) (quoting Haines v. Kerner,404 U.S. 519,520 (1972)), this does not

rclieve apro se plaintiff from his burden to meet jurisdictional requirements. Minehan v.

United States,75 Fed. Cl. 249,253 (2007) (quoting Kelley v. United States, 812 F .2d

1378, 1380 (Fed. Cir. 1987)).

The plaintiff has failed to establish subject matter jurisdiction for the following

reasons. First, under the terms of the Tucker Act, as quoted above, this court does not

have jurisdiction over tort claims. Rzcft's Mushroom Serv., Inc. v. United States, 521 F.3d

I 33 8, 1343 (Fed. cir. 2008) ("[t]he plain language of the Tucker Act excludes from the

Court of Federal Claims Jurisdiction claims sounding in tort") (citing 28 U.S.C.

$ 1491(a)(1)). Second, the plaintiffs allegations ofviolations under the Federal Criminal

code are unreviewable in this court. Joshua v. United states,17 F.3d 378,379-380 (Fed.

Cir. 1994) (affirming that the Court of Federal Claims has no iurisdiction whatsoever to

adjudicate claims under the Federal Criminal Code).

Third, this court does not have jurisdiction over the plaintiff s claims based on the

First, Fourth, and Fifth Amendments to the united States constitution because those

Amendments are not money-mandating. See United States v. Connolly,i16F.2dgg},

887 (Fed. Cir. 1983) ("the [F]irst [A]mendment, standing alone, cannot be so interpreted

to command the payment of money"); Brown v. Uniled States, 1 05 F.3d 621, 624 (F ed.

Cir. 1997) ("Because monetary damages are not available for a Fourth Amendment

violation, the Court o Federal Claims does not have jurisdiction over such a violation");

LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) ("[Appellant's] complaint

included counts alleging violations of his rights under the Due Process Clauses of the

Fifth and Fourteenth Amendments . . . None of these is a sufficient basis for jurisdiction

because they do not mandate payment of money by the govemment").

Fourth, the plaintiffs remaining grounds forjurisdiction based on Federal statutes

do not establish jurisdiction. 42 U.S.C. $ 1990 does not mandate money payment to the

plaintiff from the United States; rather, Section 1990 allows the court to fine a marshal

when the marshal does not obey a magistrate judge's warrant. See Russo v. Dunn,No.

2:17-1005,2017 WL 8159313, at * 8 Qrtr.D. Al. Nov. 20,2017). Additionally, the Clean

Water Act's citizen suit provision grants jurisdiction in district courts and not this court.

See 33 U.S.C. $ 1365(a) ("The district courts will have jurisdiction . . . to apply any

appropriate civil penalties . . .").

Fifth, none of the executive orders that the plaintiffcites are money-mandating

sources of law that give the court jurisdiction. The Executive Order issued by the

President on December 20,2017 states that it "is not intended to, and does not, create any

right or benefit, substantive or procedural, enforceable at law or in equity by any pany

against the united states, its departments, agencies, or entities, its officers, employees, or

agents, or any other person." See also, Executive Order 13849, 83 Fed. Reg. 491 195,

48200 (Sep. 21,2018) ("This order is not intended to, and does not, create any right or

benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities, its officers, employees, or agents, or

any other person.").

Finally, the court does not have jurisdiction based on the California State

constitution. See Cabralv. United States,3lT Fed. App'x979,982 (Fed. Cir.2008) ("the

Court of Federal Claims does not have jurisdiction over claims founded on state law")

(citing Souders v. S.C. Pub. Serv. Auth., 497 F .3d 1303, 1307 (Fed. Cir. 2007)).

CONCLUSION

Because this court does not have subject matter jurisdiction over any ofthe claims

in the plaintiff s complaint, the court DISMISSES the plaintiff s complaint pursuant to

RCFC 12(hX3).8 The clerk is directed to dismiss the plaintiff s complaint.e

IT IS SO ORDERED.

" The plaintiff also filed a motion for a three month stay on May 6, 2019. The plaintiff s motion

is DENIED AS MOOT.

e

The plaintifffiled a motion to proceed informa pauperis on Apnl 8, 2019 (Doc. No. 2). The

plaintifls motion is GRANTED solely for the purposes of this order.