Simmons v. United States

In the United States Court of Federal Claims

No. 21-2271

Filed: November 30, 2022

________________________________________

)

MELVIN JOSEPH SIMMONS, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

ORDER

MEYERS, Judge.

Melvin Joseph Simmons brings this action raising less than clear allegations of fraud,

misappropriation, breach of contract, and taking of his property against the United States and

various officials. None of these allegations, however, come within this Court’s jurisdiction. The

tort claims are clearly beyond this Court’s jurisdiction, as are the frivolous contract and takings

claims. Because this Court lacks jurisdiction over Simmons’s complaint, it grants the

Government’s motion to dismiss.

I. Standard of Review

“Subject matter jurisdiction is a threshold issue that must be determined at the outset of a

case.” King v. United States, 81 Fed. Cl. 766, 768 (2008) (citing Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94-95 (1998)). This Court’s primary source of jurisdiction is the

Tucker Act, 28 U.S.C. § 1491. Under the Tucker Act, this Court has subject matter jurisdiction

over claims brought against the United States that are “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). But “[t]he Tucker Act itself does not create a

substantive cause of action.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). To

establish jurisdiction, Plaintiff “must identify a separate source of substantive law that creates the

right to money damages.” Id. (citations omitted). If there is no money-mandating source of law

that supports Plaintiff’s claims, “the Court of Federal Claims lacks jurisdiction” and the case

must be dismissed 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 871, 876 (Fed. Cir. 2007)).

When deciding a Rule 12(b)(1) motion to dismiss, the Court “must accept all well-

pleaded factual allegations as true and draw all reasonable inferences in [the Plaintiff’s] favor.”

Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000). And it is well-established that the

plaintiff “bears the burden of establishing that the court has subject matter jurisdiction by a

preponderance of the evidence.” Howard v. United States, 74 Fed. Cl. 676, 678 (2006), aff’d,

230 F. App’x 975 (Fed. Cir. 2007) (per curiam) (citation omitted). Complaints filed by pro se

plaintiffs “must be held to ‘less stringent standards than formal pleadings drafted by lawyers.’”

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted). However, “the leniency afforded

pro se litigants with respect to mere formalities does not relieve them of jurisdictional

requirements.” Demes v. United States, 52 Fed. Cl. 365, 368 (2002) (citing Kelley v. Sec’y, U.S.

Dep’t of Lab., 812 F.2d 1378, 1380 (Fed. Cir. 1987)).

II. Discussion

Simmons’s complaint is difficult to decipher and relatively brief. Due to this lack of

clarity, the Court also relies on Simmons’s response to the motion to dismiss because it adds

some clarity and detail regarding what Simmons is seeking in this litigation. Even with the

support of his response, Simmons’s complaint fails to raise claims within the jurisdiction of this

Court. He seeks to recover for alleged frauds and misappropriation by the Government, an

apparent challenge to his criminal conviction, a maritime claim, and claims against various

government officials that are all outside this Court’s jurisdiction. Simmons also attempts to

bring what he claims are breach of contract and Fifth Amendment takings claims, but these too

are frivolous.

First, Simmons alleges that there is a “Conspiracy to Defraud” him of certain property.

ECF No. 1 at 2 ¶ 8. Although it is not clear what this property was, the fraud allegation does

factor prominently in Simmons’s response to the motion to dismiss. In fact, Simmons includes

as one of the issues before the Court whether this Court has jurisdiction to determine whether the

government, acting through specific individuals “fraudulently Assigned Plaintiff’s rights,

benefits, issues, obligations, persons, money, goods, chattels, lands, tenements, and

hereditaments . . . .” ECF No. 12 at 2. Simmons also alleges that:

• “Plaintiff’s rightful inheritance [was] misappropriated by actual fraud . . .” ECF

No. 12 at 2;

• He was unaware that “Void Instrument ABSTRACT OF JUDGMENT-

COMMITMENT DSL 290 CASE NUMBER A917709 Could be used to

fraudulently convey plaintiff’s rights, ownership and SOCIAL SECURITY

FEDERAL OLD AGE, SURVIVORS’ AND DISABILITY INSURANCE

INVESTMENT BENEFITS.” ECF No. 12 at 3;

• His harms are “a result of actual fraud which is a question of fact according to

state law . . . .” Id.;

• He is “the party alleging actual fraud . . . .” Id. at 9;

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• The United States “transmitted Plaintiff Melvin Joseph Simmons Federal Old-

Age Survivors’ And Disability Insurance Policy Investment Benefits to Plaintiff

Melvin Simmons Jr. Legal Personality MELVIN SIMMONS JR, Without

consent, or to the artificial Person SIMMONS MELVIN JR. A917709 through

actual fraudulent means with the unauthorized use of the Void Instrument

ABSTRACT OF JUDGMENT - COMMITMENT DSL FORM 290

CALIFORNIA SUPERIOR BANKRUPTCY COURT I.D. 19 00 10.” Id. at 11;

• His “claims are based on transitional facts sounding in fraud where the accrual

rule (The doctrine delaying the existence of a claim or right until the plaintiff has

discovered it) Is being applied with due diligence of newly discovered facts as to;

the void instrument Abstract of Judgment-Commitment Form DSL 290 Case

NO.A917709,(See,Cal.Civ.Code,§§§ 53.(a)(b)(c),1598,3412)to form the basis for

this cause of action.” Id. at 16; and

• The Government “Caused . . . the permanently [sic] Taking of JOSEPH from its

station and replacing it with the Jr, earmark in anticipation of litigation, intended

to defraud plaintiffs of trade-secret [Jr.Curtilage Eclosure Form No. 56.Round

Lot], Collateral, personal property, stock, bonds, along with rights of

Survivorship.” Id. at 21.

According to the Tucker Act, 28 U.S.C. § 1491(a)(1), this Court’s jurisdiction is limited to

claims against the United States for monetary damages “not sounding in tort.” In short, this

Court must dismiss tort claims for lack of subject matter jurisdiction, including complaints

alleging fraud. E.g., Kant v. United States, 123 Fed. Cl. 614, 616-17 (2015) (collecting cases);

Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) (“It is well-settled that the Court of Federal

Claims lacks jurisdiction over any and every kind of tort claim.”). Therefore, the Court

dismisses the Complaint insofar as it seeks damages for any alleged fraud.

The same is true of Simmons’s allegations that the Government has violated his right to

privacy and misappropriated his name. ECF No. 12 at 15 (allegations regarding the “[c]ommon-

law right of privacy”), 16 (complaining about the alleged use of his “name, likeness, in the

manner of slander, on or in products, merchandise, goods, or for the purpose of advertising or

selling, or soliciting purchases or services, without prior consent”). These claims are torts that

this Court lacks jurisdiction to adjudicate. In re Elster, 26 F.4th 1328, 1334 (Fed. Cir. 2022)

(explaining that the “Restatement (Second) of Torts defines the tort of ‘Appropriation of Name

or Likeness,’ as actionable when a tortfeasor ‘appropriates to his own use or benefit the name or

likeness of another’” (quoting Restatement (Second) of Torts § 652C (1977))); Jumah v. United

States, 90 Fed. Cl. 603, 607 (2009) (claims for invasion of privacy are “claims sounding in tort”),

aff’d, 385 F. App’x 987 (Fed. Cir. 2010); McCullough v. United States, 76 Fed. Cl. 1, 4 (2006)

(“Plaintiff’s claims for . . . invasion of privacy, public disclosure of private facts [and] intrusion

upon seclusion, . . . are tort claims.”). These claims must be dismissed as well.

Second, although Simmons states that he is not challenging his criminal conviction, he

alleges in the complaint that he is being forced to “involuntarily serv[e] as the deceased

personality’s name CDC No. D66671 Simmons Melvin Jr. PID # 11482307.” ECF No. 1 at 3

¶ 14. The Court can only read this as another challenge to Simmons’s conviction by California

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courts. As an initial matter, this Court lacks jurisdiction over criminal matters. E.g., Sanders v.

United States, 252 F.3d 1329, 1333-34 (Fed. Cir. 2001). And, as explained in Simmons’s prior

litigation, this Court lacks jurisdiction to hear a challenge to a state court decision. Simmons v.

United States, No. 21-921, 2021 WL 2655344, at *2 (Fed. Cl. June 28, 2021). To the extent

Simmons’s claims allege involuntary servitude under the Thirteenth Amendment, this Court

lacks jurisdiction over such claims as well. E.g., Humphrey v. United States, 60 F. App’x 292,

295 (Fed. Cir. 2003) (affirming dismissal of claim under the Thirteenth Amendment for lack of

jurisdiction).

Third, while Simmons contends that he is a “U.S. Flag Commercial Vessel,” ECF No. 12

at 19, this contention is frivolous and, in any event, does not confer jurisdiction. As the Court

explained in Johnson v. United States, 79 Fed. Cl. 769 (2007), the Court of Federal Claims lacks

maritime jurisdiction. And even if this Court did have maritime jurisdiction, Simmons is clearly

not a “vessel,” which “includes every description of watercraft or other artificial contrivance

used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. And this

definition “has remained virtually unchanged from 1873 to the present.” Stewart v. Dutra

Constr. Co., 543 U.S. 481, 490 (2005). Because Simmons clearly does not fit within this

definition, even if the Court had maritime jurisdiction Simmons could not avail himself of it

here. Johnson, 79 Fed. Cl. at 775.

Fourth, Simmons names various government officials as defendants in this action. See

ECF No. 12 at 1-2. This Court, however, only has jurisdiction over the United States, not its

officers or employees. E.g., United States v. Sherwood, 312 U.S. 584, 588 (1941); Brown v.

United States, 105 F.3d 621, 624 (Fed. Cir. 1997). Therefore, the Court must dismiss all claims

against every party other than the United States.

Fifth, Simmons alleges that there is a contract with the United States resulting from the

issuance of his social security number. See ECF No. 12 at 8 (alleging a “[b]reach of Plaintiffs’

express contract with the USA Department of Health, Education, and Welfare, Social Security

Account number: ***-**-1922” (capitalization altered)); id. at 10 (alleging that the Social

Security Administration “[f]ailed to live up to [its] fiduciary duty owed to Plaintiffs . . . , to his

proud parents [and] to his baby brother.”). When a plaintiff brings a breach of contract claim,

“there is a presumption in the civil context that a damages remedy will be available upon the

breach of an agreement.” Boaz Hous. Auth. v. United States, 994 F.3d 1359, 1364 (Fed. Cir.

2021) (citations omitted). In all but a few narrow circumstances not relevant here, this

presumption satisfies the requirement for a money-mandating source of law. Id. In other words,

the “general rule” is that “if a plaintiff alleges breach of a contract with the government, the

allegation itself confers power on the [Court of Federal Claims] to decide whether the claim has

merit.” Columbus Reg’l Hosp. v. United States, 990 F.3d 1330, 1341 (Fed. Cir. 2021). But, as

with most general rules, there is an “exception . . . when the plaintiff’s allegations are frivolous

. . . .” Id. Simmons’s contract allegations are frivolous.

For there to be a contract with the United States, there must be “mutual intent to contract

including an offer and acceptance, consideration, and a Government representative who had

actual authority to bind the Government.” California Fed. Bank, FSB v. United States, 245 F.3d

1342, 1346 (Fed. Cir. 2001). None are present here, nor could they be. The issuance of a social

security number does not create a contract with the United States. E.g., Gravatt v. United States,

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100 Fed. Cl. 279, 286 (2011) (“Neither birth certificates nor social security numbers recognize or

impose contractual rights, obligations, or duties.”). And this Court lacks jurisdiction over claims

for social security benefits. E.g., Marcus v. United States, 909 F.2d 1470, 1471 (Fed. Cir. 1990)

(“[W]e hold that the Claims Court has no jurisdiction under the Tucker Act . . . over claims to

social security benefits.”); Arunga v. United States, 465 F. App’x 966, 967 (Fed. Cir. 2012) (per

curiam) (explaining that “[c]hallenges relating to social security benefits ‘shall be brought in the

district court of the United States for the judicial district in which the plaintiff resides’” (citing 42

U.S.C. § 405(g))). Therefore, Simmons’s contract claims are not sufficient to confer jurisdiction

in this Court and are dismissed.

Finally, Simmons attempts to allege a compensable taking of his property under the Fifth

Amendment. It is wholly unclear from the complaint or Simmons’s response to the motion to

dismiss what it is that he claims was taken. At various times, Simmons appears to argue that his

personhood was taken and that his land (which appears to be his body) was taken. The taking

allegations are clearly frivolous in that they assert either that the taken property is Plaintiff, that

Plaintiff is “real property,” or that removing Plaintiff’s middle name Joseph from his prisoner

identification and appending “Jr.” amounts to a taking:

• “Plaintiff Melvin Joseph Simmons Possesses the legally enforceable property

rights to the exclusive occupation of Land MELVIN JOSEPH SIMMONS

absolute indicia of title, backed by old age standard gold and silver Federal

Reserve Deposits, for residential, agricultural, commercial, industrial, absorption

and solvancy [sic] purposes.” ECF No. 12 at 4.

• “A compensable taking has occurred not only through the Federal Central

Government’s physical invasion of Private Property (Form No.56,Curtilage[Jr]),

or appropriation of private property(JOSEPH). (see,Lucas,505 U.S. at 1014-15;

Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419,427.102 S.Ct.

3164,3171. 73 L.Ed. 2d 868 (1982), also by the Federal Government’s regulations

which is unduly burdening Plaintiffs’ Private Property Interests.” Id. at 7.

• “When the Defendants’ employment of California laws and agents to facilitate the

detraction of “JOSEPH” from its Position and Station of occupancy “MELVIN

JOSEPH SIMMONS” to: “MELVIN SIMMONS JR” to take away the stick of

bundle of rights and all economical benefits and productive use of land.” Id. at

15.

• “Because it is consistent with the historical compact embodied inside of the

Taking Clause, That Title to real estate MELVIN JOSEPH SIMMONS is held

subject to the United States Of America(USA DEPARTMENT OF

HEALTH,EDUCATION,AND WELFARE,SOCIAL SECURITY

ADMINISTRATION)’s subsequent decision to eliminate all rights and social

economically Beneficial use, through an invasion of private property and right of

family integrity.” Id. at 12.

• “For Public uses, Denied Plaintiffs Melvin Joseph Simmons as owner all

economically beneficial and productive use, possession or enjoyment in and over

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His Section of Land Plaintiff MELVIN JOSEPH SIMMONS, effects the taking.”

Id. at 14.

Simmons’s claims that his incarceration effected a taking are similarly frivolous. These

allegations include the following statements:

• “While this taking occurred as a result of the USA Central Federal Government

DEPARTMENT OF HEALTH,EDUCATION,AND WELFARE, physical

invasion right of privacy or the USA SOCIAL SECURITY

ADMINISTRATION’S Confiscation of this Plaintiff Melvin Joseph Simmons

freedom of the city.” ECF No. 12 at 6.

• “By physical invasion of airspace, or all-the-estate-clause, or all substantial [sic]

rights is ripe for determination whether Defendants’ imposition of involuntary

servitude upon private property amount to a Taking requiring mandatory payment

of just compensation.” Id. at 15.

But Simmons ‘s incarceration (i.e., taking of his “freedom of the city” and “involuntary

servitude”) does not result in a taking. Simmons’s attempt to repackage his challenge to his

conviction as a takings claim is frivolous and insufficient to establish jurisdiction in this Court.

Further, Simmons’s allegations make clear that he bases his entire taking theory on the premise

that the Government acted unlawfully:

• “Plaintiffs’ Rightful inheritance Misappropriated by actual fraud, de facto taking,

or invasion of private property.” Id.

• “As a result of actual fraud which is a question of fact according to state law (See

Cal. Civ. Code §§ 1572,1574,1575) when the Federal Government puts into play

a series of events which result in a taking of private property the fact that the

Federal Government acts through a state agent does not absolve it from the

responsibility and consequences of its actions.” Id. at 3.

• “Contrary to Defendants’ legal or moral obligation imposed upon them through

operation of law (42 uses§§ 405b,407). The paradigmatic taking from Plaintiffs’

economic unit (MELVIN JOSEPH SIMMONS) reasonable use and enjoyment by

direct Federal Government appropriation or physical invasion of private property

requiring just compensation.” Id. at 6.

• “And Defendants’ Failure to act as the law obligated Defendants to act, Deprived,

Plaintiff Melvin Joseph Simmons of all “economically viable use” of Plaintiffs’

Property and therefore effected a “Taking” under the Fifth and Fourteenth

Amendments that which requires the payment of just compensation.” Id. at 12.

• “And the taking of real security [Jr] collateral from within its curtilage Form

No.56. To take away a person’s “freedom” through unjust convictions

(see,Edwards v. Vannoy,397 U.S.362,142 S.Ct.1547,1577,1578(2021) Is merely

incidental to the takings and Defendants’ imposition of navigational servitude on

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a marina created and rendered navigable at private and personal expense, amount

to takings through confiscatory regulations, i.g., that Deprived plaintiffs from all

economically beneficial use of land and interfered with private ownership rights.”

Id. at 17.

But “for the Court to possess jurisdiction over a takings claim, the ‘claimant must concede the

validity of the government action which is the basis of the taking claim.’” Jackson v. United

States, 143 Fed. Cl. 242, 247 (2019) (quoting Tabb Lakes, Ltd. v. United States, 10 F.3d 796,

802-03 (Fed. Cir. 1993)). Therefore, the Court lacks jurisdiction to the extent Simmons is

bringing a taking claim under the Fifth Amendment.

There is no claim in the complaint that falls within this Court’s jurisdiction.

Conclusion

For the reasons stated above, the Court GRANTS the United States’ motion to dismiss,

ECF No. 8. The Clerk is directed to enter judgment accordingly.

No costs.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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