Hastings v. United States

In the United States Court of Federal Claims

LESLIE R. HASTINGS, JR.,

Plaintiff, No. 22-cv-1705

v. Filed: March 8, 2023

THE UNITED STATES,

Defendant.

Leslie R. Hastings, Jr., Lamesa, Texas, appearing pro se.

Laura Offenbacher Aradi, United States Department of Justice, Washington, D.C., appearing for

Defendant.

MEMORANDUM AND ORDER

Plaintiff Leslie R. Hastings, Jr., appearing pro se, seeks redress against the United States

for various claims including judicial misconduct, judicial bias, violation of 28 U.S.C. § 636, and

alleged violations of his constitutional rights under the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth,

Tenth, Thirteenth, and Fourteenth Amendments. See Complaint (ECF No. 1) (Compl.) at 2–3. 1

Presently before the Court is the United States’ (Defendant’s) Motion to Dismiss the Complaint

pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (Rule(s)). ECF

No. 16 (Mot.). Defendant argues this Court lacks subject matter jurisdiction over Plaintiff’s

claims. For the reasons stated below, this Court GRANTS Defendant’s Motion to Dismiss

pursuant to Rules 12(b)(1) and 12(h)(3).

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Citations to Plaintiff’s Complaint reference the ECF page numbers.

BACKGROUND

This case is the latest in a series of actions brought by Plaintiff — in the United States

Court of Federal Claims and in other federal courts — concerning his imprisonment and related

lawsuits. The United States District Court for the Northern District of Texas dismissed one such

complaint, in which Plaintiff alleged that “he [wa]s wrongfully confined because of a frivolous

civil case he filed,” on February 1, 2021 pursuant to 28 U.S.C. § 1915. Hastings v. Hendrix, No.

6:20-cv-00118-C, 2021 WL 562185, at *1 (N.D. Tex. Feb. 1, 2021). On appeal, the United States

Court of Appeals for the Fifth Circuit (Fifth Circuit) also found Plaintiff’s claims frivolous and

dismissed the appeal for want of prosecution on April 16, 2021. Hastings v. Hendrix, et al., No.

21-10126, 2021 WL 3627252 (5th Cir. Apr. 16, 2021).

On May 10, 2022, Plaintiff filed a complaint in the Court of Federal Claims alleging he

was wrongfully convicted and imprisoned by the Fifth Circuit for filing his previous action

claiming wrongful imprisonment. Hastings v. United States, No. 22-cv-531, ECF No. 1 at 2 (Fed.

Cl. May 10, 2022) (stating Plaintiff “is currently being wrongfully imprisoned and convicted by

the United States for civil cases filed . . . for wrongful imprisonment”). Plaintiff proceeded to file

19 different motions before the Court of Federal Claims dismissed Plaintiff’s complaint on July

12, 2022. Hastings v. United States, No. 22-cv-531, 2022 WL 2679990 (Fed. Cl. July 12, 2022).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the decision

of the Court of Federal Claims on November 14, 2022. Hastings v. United States, No. 2022-2073,

2022 WL 16908624 (Fed. Cir. Nov. 14, 2022).

Plaintiff filed his Complaint (ECF No. 1) in the present case on November 14, 2022,

bringing suit against the United States, the United States Court of Federal Claims, and the United

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States Court of Appeals for the Federal Circuit. 2 Plaintiff also filed a Motion for Leave to Proceed

in forma pauperis (ECF No. 8), which this Court granted on December 14, 2022. ECF No. 10.

Plaintiff’s Complaint alleges myriad wrongdoing by both the Court of Federal Claims and the

Federal Circuit in the handling of his prior case no. 22-cv-531. Compl. at 1–2. Plaintiff’s

allegations include claims of judicial misconduct, judicial bias, violation of 28 U.S.C. § 636(c),

and violations of Plaintiff’s constitutional rights under the Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth, Tenth, Thirteenth, and Fourteenth Amendments. Compl. 1–3. As relief, Plaintiff requests

“the termination of the U.S. Federal Government, and the legal system to be operated by the U.S.

Military,” to “be the President of the United States, to include all nations within the United States

jurisdiction,” and damages in the amount of $500 billion. Compl. at 3.

On December 8, 2022, before Defendant’s deadline for responding to the Complaint,

Plaintiff filed a Motion for Summary Judgment. ECF No. 9. Defendant subsequently filed a

Motion to Stay Briefing on Motion for Summary Judgment Until After the Court Rules on the

Defendant’s Forthcoming Motion to Dismiss (ECF No. 13), which this Court granted on December

16, 2022 to allow Defendant the opportunity to first respond to Plaintiff’s Complaint. Order

Granting Defendant’s Motion to Stay Briefing on Motion for Summary Judgment (ECF No. 14).

Defendant filed its Motion to Dismiss Pursuant to Rule 12(b)(1) on January 17, 2023, arguing this

Court lacks jurisdiction to hear Plaintiff’s claims. ECF No. 16. On January 19, 2023, Plaintiff

filed a document styled as a Motion to Sever requesting the Court “sever[] the above-listed case

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While Plaintiff’s Complaint states “[t]he United States Court of Federal Claims and the United

States Court of Appeals[] for the Federal Circuit are the defendants and/or parties in this matter,”

the Complaint’s case caption lists the United States as both “Defendant(s)” and “Third-Party

Defendant(s).” Compl. at 1. This Court construes the Complaint as intending to bring suit against

the United States for the actions of the Court of Federal Claims and the Federal Circuit. To the

extent Plaintiff intends to bring suit against the courts or individual judges of those courts, this

Court lacks jurisdiction to hear such claims. See infra Discussion Section II.B.

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number from all pending litigation.” ECF No. 17 at 1 (emphasis in original). Following its

approach to Plaintiff’s Motion for Summary Judgment, this Court stayed briefing on Plaintiff’s

Motion to Sever until after it ruled on Defendant’s pending Motion to Dismiss. Order Staying

Briefing on Plaintiff’s Motion to Sever (ECF No. 18).

APPLICABLE LEGAL STANDARD

The Tucker Act, 28 U.S.C. § 1491, provides this Court with jurisdiction over “any claim

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

regulation of an executive department, . . . or for liquidated or unliquidated damages in cases not

sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act serves as a waiver of sovereign

immunity for “certain claims for monetary relief against the United States,” but it does not create

a right to relief itself. Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014);

United States v. Mitchell, 463 U.S. 206, 212, 218 (1983). To establish a right to relief under the

Tucker Act, a “substantive right must be found in some other source of law.” Mitchell, 463 U.S.

at 216; see Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the

Tucker Act requires the litigant to identify a substantive right for money damages against the

United States separate from the Tucker Act itself.”). The constitutional, statutory, or regulatory

provision must be “fairly . . . interpreted as mandating compensation by the Federal Government

for the damage sustained.” United States v. Testan, 424 U.S. 392, 400 (1976) (internal quotations

omitted). Thus, this Court’s jurisdiction under the Tucker Act does not extend to “every claim

invoking the Constitution, a federal statute, or a regulation.” Mitchell, 463 U.S. at 216.

Additionally, this Court’s jurisdiction does not extend to cases against private parties or

government employees in their individual capacities. See United States v. Sherwood, 312 U.S.

584, 588 (1941) (discussing how the Court of Federal Claims’ limited jurisdiction does not include

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relief “against others than the United States”); Brown v. United States, 105 F.3d 621, 624 (Fed.

Cir. 1997) (“The Tucker Act grants the Court of Federal Claims jurisdiction over suits against the

United States, not against individual federal officials.”). This Court must dismiss claims outside

its subject matter jurisdiction pursuant to Rules 12(b)(1) and 12(h)(3).

In deciding a motion to dismiss for lack of subject matter jurisdiction, this Court accepts

all uncontroverted facts as true and construes the facts in the light most favorable to the non-

moving party. Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014); Pixton v. B&B

Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002). Under Rule 10(c), a “copy of a written

instrument that is an exhibit to a pleading is part of the pleading for all purposes.” RCFC 10(c).

Thus, on a motion to dismiss, this Court considers “documents incorporated into the complaint by

reference[.]” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Rocky Mt.

Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (quoting Tellabs, Inc., 551

U.S. at 322).

In considering a motion to dismiss, this Court must liberally construe a complaint filed by

a pro se plaintiff because pro se complaints, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal quotations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972).

Although held to a less stringent standard, pro se plaintiffs must still prove by a preponderance of

the evidence that this Court has subject matter jurisdiction. See Curry v. United States, 787 F.

App’x 720, 722 (Fed. Cir. 2019); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988); Kelley v. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). While a pro se

complaint may include ambiguities, pro se filing status “does not excuse [] failures” on the merits.

Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

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DISCUSSION

Plaintiff’s Complaint is difficult to decipher, but this Court understands it to bring

constitutional, judicial misconduct, and tortious discrimination claims against the United States.

However, this Court must dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction, as

this Court’s jurisdiction does not extend to claims brought pursuant to constitutional amendments

that are not money-mandating, to appellate review of past Court of Federal Claims or Federal

Circuit actions, or to claims sounding in tort. This Court accordingly considers Plaintiff’s

Complaint to be frivolous and lacking a basis in law. As this is the third dismissal of a frivolous

complaint brought by Plaintiff in federal court, Plaintiff shall be barred from proceeding in forma

pauperis when bringing a civil case or appealing a judgment in a civil action or proceeding while

imprisoned, pursuant to 28 U.S.C. § 1915(g).

I. Plaintiff’s Constitutional Claims Must Be Dismissed

This Court must dismiss Plaintiff’s constitutional claims alleging violations of his rights

under the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth

Amendments for lack of subject matter jurisdiction. See Compl. at 2–3.

The Tucker Act confers subject matter jurisdiction to this Court over money-mandating

constitutional claims. 28 U.S.C. § 1491(a)(1). The Federal Circuit has expressly held the Court

of Federal Claims lacks jurisdiction over claims arising under the Fourth Amendment, Fifth

Amendment Due Process Clause, Sixth Amendment, Seventh Amendment, Eighth Amendment,

Ninth Amendment, Tenth Amendment, Thirteenth Amendment, and Fourteenth Amendment Due

Process and Equal Protection Clauses, as they are not money-mandating. See Brown v. United

States, 105 F.3d 621, 623–24 (Fed Cir. 1997) (Fourth Amendment); Black v. United States, 28

Fed. Cl. 177, 186 (1993), aff’d, 16 F.3d 421 (Fed. Cir. 1993) (Fifth Amendment Due Process

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Clause); Burmaster v. United States, 744 F. App’x 699, 702 (Fed. Cir. 2018) (Sixth Amendment);

Jaffer v. United States, 67 F.3d 319 (Fed. Cir. 1995) (Seventh Amendment); Trafny v. United

States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (Eighth Amendment); Patterson v. United States,

218 F. App’x. 987, 988 (Fed. Cir. 2007) (Ninth Amendment & Tenth Amendment); Harris v.

United States, 686 F. App’x 895, 899 (Fed. Cir. 2017) (Thirteenth Amendment); LeBlanc v. United

States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (Fourteenth Amendment Due Process & Equal

Protection Clauses). While this Court has jurisdiction over claims arising under the Takings

Clause of the Fifth Amendment, even liberally construed, Plaintiff’s Complaint does not identify

any relevant property interest, nor does it reference a government action that can be interpreted as

depriving Plaintiff of a property interest without just compensation. See generally Compl.; see

Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (“It is undisputed that

the Takings Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker

Act jurisdiction.”). Accordingly, this Court DISMISSES Plaintiff’s constitutional claims for lack

of subject matter jurisdiction.

II. This Court Must Dismiss Plaintiff’s Judicial Misconduct, Judicial Bias, and

28 U.S.C. § 636 Claims

This Court must also dismiss Plaintiff’s claims alleging judicial misconduct, judicial bias,

and a violation of 28 U.S.C. § 636 by judges of the Court of Federal Claims and the Federal Circuit

in handling his prior case no. 22-cv-531. Compl. at 3. While unclear as written, this Court liberally

construes the Complaint as either: (1) seeking review of those courts’ decisions in Plaintiff’s prior

case due to perceived wrongdoing; or (2) asserting tort claims against judges of those courts or

against the United States. Under either reading of the Complaint, Plaintiff’s “judicial misconduct”

and “judicial bias” claims must be dismissed.

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A. To the Extent Plaintiff’s Judicial Misconduct and Judicial Bias Claims Seek

Review of Prior Court of Federal Claims and Federal Circuit Decisions, The

Claims Must Be Dismissed

It is well-established that this Court cannot review prior judgments and decisions of federal

district courts, federal circuit courts, or the Court of Federal Claims. See Garcia v. United States,

629 F. App’x 951, 953 (per curiam) (“The Court of Federal Claims . . . does not have jurisdiction

to review the judgments of the United States district courts or circuit courts.”) (citing Shinnecock

Indian Nation v. United States, 782 F.3d 1345, 1353 (Fed. Cir. 2015)); 28 U.S.C. § 1295(a)(3)

(providing the Federal Circuit with exclusive jurisdiction “of an appeal from a final decision of

the United States Court of Federal Claims”).

Here, Plaintiff alleges “judicial misconduct,” “judicial bias,” and a violation of 28 U.S.C.

§ 636 3 perpetrated by judges of the Court of Federal Claims and the Federal Circuit while

considering and ruling on Plaintiff’s prior case. Compl. at 1–2. Such claims effectively ask this

Court to engage in appellate review by scrutinizing those courts’ prior actions. As this Court

cannot engage in appellate review of actions by the Court of Federal Claims or the Federal Circuit,

this Court DISMISSES Plaintiff’s judicial misconduct and judicial bias claims for lack of subject

matter jurisdiction to the extent they seek such review.

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Section 636 of Title 28 is a section of 28 U.S.C. Pt. III, Ch. 43, which concerns only “United

States Magistrate Judges.” Specifically, 28 U.S.C. § 636 speaks to magistrate judges’

“Jurisdiction, powers, and temporary assignment.” While Plaintiff’s Complaint characterizes his

prior case, no. 22-cv-531, as having been before a “United States Court of Federal Claims

Magistrate Judge,” that case was not assigned to a magistrate judge but instead to a judge of the

United States Court of Federal Claims, who dismissed Plaintiff’s case on July 12, 2022. See

Hastings v. United States, No. 22-cv-531, 2022 WL 2679990 (Fed. Cl. July 12, 2022). As

Plaintiff’s prior case was not assigned to a magistrate judge at any point, 28 U.S.C. § 636 is

inapplicable. This Court therefore construes the Complaint’s reference to 28 U.S.C. § 636 as

another statement of Plaintiff’s judicial misconduct claim, over which this Court lacks jurisdiction

for the reasons discussed in this Section.

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B. To the Extent the Complaint Alleges Tort Claims Against the United States or

Individual Judges, Those Claims Must Be Dismissed

The Tucker Act expressly states this Court lacks subject matter jurisdiction over claims

sounding in tort. 28 U.S.C. § 1491(a)(1); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343 (Fed. Cir. 2008); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997); see Straw

v. United States, 4 F.4th 1358, 1361 (Fed. Cir. 2021) (“The [Court of Federal Claims] was also

correct in holding that [plaintiff’s] claim is in essence a tort claim, which is outside the jurisdiction

of the . . . Court under the Tucker Act.”); Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir.

1998) (stating the Court of Federal Claims cannot decide questions of tort liability); Hartman v.

United States, 150 Fed. Cl. 794, 797–98 (2020) (dismissing a pro se complaint containing claims

sounding in tort); Redd v. United States, 147 Fed. Cl. 602, 607 (2020) (same); Starnes v. United

States, 162 Fed. Cl. 468, 473–74 (2022). It is also well-established that discrimination claims are

tort claims and thus fall outside this Court’s jurisdiction. See Qualls v. United States, 230 Ct. Cl.

534, 538 (1982) (“[T]o the extent that plaintiff charges defendant with acting in a discriminatory

or retaliatory manner towards him, such allegations are tortious in nature.”); Jentoft v. United

States, 450 F.3d 1342, 1349–50 (Fed. Cir. 2006) (quoting Qualls, 230 Ct. Cl. at 538); Adams v.

United States, No. 07-cv-809, 2008 WL 4725452, at *2 (Fed. Cl. July 16, 2008) (holding statutory

discrimination claims sound in tort). Further, this Court’s jurisdiction does not extend to cases

against private parties or government employees in their individual capacities. See, e.g., Sherwood,

312 U.S. at 588.

Plaintiff’s Complaint provides little clarification as to the “judicial bias” he claims to have

experienced, although his request for relief suggests racial prejudice by the federal government is

at the claim’s core. Compl. at 3 (stating Plaintiff “declare[s] war against the U.S. Federal

Government for judicial bias, racism, prejudice and misconduct”). As discussed, such allegations

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of discriminatory treatment sound in tort, and this Court plainly lacks subject matter jurisdiction

over such tort claims. See supra Discussion Section II.B. Accordingly, to the extent Plaintiff

intended to bring tortious discrimination claims against either the United States or individual

judges, this Court DISMISSES those claims for lack of subject matter jurisdiction.

III. Plaintiff’s Miscellaneous Jurisdictional Arguments are Unavailing

Plaintiff cites several statutory provisions that allegedly provide this Court with subject

matter jurisdiction over his claims. See Compl. at 2. Upon review, none of these statutes confer

such jurisdiction. 28 U.S.C. § 1254(2) simply provides one circumstance in which the Supreme

Court of the United States can review a case from the federal courts of appeals. 28 U.S.C. § 1331

establishes federal question jurisdiction. 28 U.S.C. § 1784 relates to a court holding an

unresponsive subpoena recipient in contempt of court. 28 U.S.C. §§ 2253–55 concern writs of

habeas corpus. 28 U.S.C. § 2403 provides that the United States may intervene in a lawsuit

“wherein the constitutionality of any Act of Congress affecting the public interest is drawn in

question.” 28 U.S.C. § 2403(a). 28 U.S.C. § 2680 relates to tort claims procedures. Finally, 28

U.S.C. § 2710 considers the right of attachment in suits involving the United States Postal Service.

None of these statutes speaks to the ability of this Court to hear claims relating to non-money-

mandating constitutional provisions, judicial misconduct, or tort claims. Accordingly, Plaintiff’s

argument that this Court has jurisdiction under the aforementioned statutes is without merit.

IV. Plaintiff’s Complaint Is Frivolous, Warranting a Third Strike Pursuant to 28

U.S.C. § 1915(g)

In order to discourage “‘frivolous, malicious, or repetitious lawsuits,’” Congress enacted a

“three strikes” rule for barring a litigant from proceeding in forma pauperis in federal court.

Coleman v. Tollefson, 575 U.S. 532, 535 (2015) (quoting Neitzke v. Williams, 490 U.S. 319, 324

(1989)). Per 28 U.S.C. § 1915(g),

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

or proceeding [in forma pauperis] if the 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.

A complaint is considered frivolous when it “lacks an arguable basis either in law or in fact.”

Neitzke, 490 U.S. at 325.

Here, Plaintiff’s Complaint seeks extraordinary relief while alleging myriad violations of

Plaintiff’s rights with minimal specificity as to the allegations and relevant facts. Further, what

claims the Court can discern by liberally construing the Complaint fall clearly outside the subject

matter jurisdiction of this Court. See supra Discussion Sections I–III. Accordingly, as this Court

lacks jurisdiction to hear Plaintiff’s Complaint, which lacks an arguable basis in fact or in law, this

Court finds Plaintiff’s Complaint to be frivolous and dismisses this action pursuant to Rules

12(b)(1) and 12(h)(3), and 28 U.S.C. § 1915A(a)–(b).

This dismissal is the third such instance of a federal court dismissing a complaint by

Plaintiff as frivolous. See Hastings v. Hendrix, et al., No. 6:20-cv-00118-C, 2021 WLL 562185,

at *3 (N.D. Tex. Feb. 1, 2021) (dismissing Plaintiff’s complaint as a “qualifying dismissal under

28 U.S.C. § 1915”); Hastings v. United States, No. 22-cv-531, 2022 WL 2679990, at *5 (Fed. Cl.

July 12, 2022) (dismissing Plaintiff’s complaint as frivolous and considering the dismissal

“plaintiff’s second strike” under 28 U.S.C. § 1915). Accordingly, while Plaintiff remains

imprisoned, he shall be prevented from bringing a civil action or appealing a judgment in a civil

action or proceeding pursuant to 28 U.S.C. § 1915 [in forma pauperis] unless he is “under

imminent danger of serious physical injury.” See Fourstar v. United States, 950 F.3d 856, 858

(Fed. Cir. 2020).

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CONCLUSION

For the reasons stated above, Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED,

and Plaintiff’s Complaint is DISMISSED pursuant to Rules 12(b)(1) and 12(h)(3) without leave

to replead. Both Plaintiff’s Motion for Summary Judgment (ECF No. 9) and Motion to Sever

(ECF No. 17) are DENIED AS MOOT. This dismissal of Plaintiff’s Complaint shall count as

Plaintiff’s “third strike” towards the limitations proscribed by 28 U.S.C. § 1915(g), regarding

Plaintiff’s ability to proceed in forma pauperis in future matters.

Finally, this Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this

Order would not be taken in good faith, and therefore in forma pauperis status is denied for the

purpose of an appeal. See Harrison v. United States, No. 2020-1765, 2020 WL 6482121, at *1

(Fed. Cir. July 21, 2020).

The Clerk of Court is DIRECTED to enter Judgment accordingly.

IT IS SO ORDERED.

Eleni M. Roumel

ELENI M. ROUMEL

Judge

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