# Cramer v. United States

> United States Court of Federal Claims · April 25, 2023

URL: https://www.frixlaw.com/law-library/cases/9389535

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 25, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Matthew H. Solomson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9389535

## How later opinions describe it (automated extraction)

- affirming dismissal for lack of subject-matter jurisdiction where the plaintiff sought compensatory damages, because the Tucker Act precludes claims for “tort damages”
- noting that the Court of Federal Claims “has no jurisdiction over criminal matters generally” (citing 28 U.S.C. § 1491)
- affirming dismissal for lack of subject-matter jurisdiction where the plaintiff sought loss of income damages, because this form of relief is reserved for tort claims

## Opinion text

In the United States Court of Federal Claims
No. 23-37C
(Filed: April 25, 2023)

NOT FOR PUBLICATION

)
PETER EUGENE CRAMER, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)

Peter Eugene Cramer, Helena, OK, pro se.

Yariv S. Pierce, Civil Division, United States Department of Justice, Washington, D.C., for
Defendant.

OPINION AND ORDER

SOLOMSON, Judge.

On January 9, 2023, Plaintiff, Peter Eugene Cramer, a prisoner at the James
Crabtree Correctional Center in Helena, Oklahoma, proceeding pro se, filed a complaint
against Defendant, the United States, in this Court. ECF No. 1. That same day, Plaintiff
filed an incomplete motion to proceed in forma pauperis (“IFP”). ECF No. 2. Accordingly,
the Court denied his IFP motion on January 12, 2023. ECF No. 6. The Court also stayed
the case while it reviewed Plaintiff’s complaint for probable lack of jurisdiction. Id.; see
Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”). 1

1 In the absence of subject-matter jurisdiction, the Court “must dismiss the action.” RCFC
12(h)(3). This may be done “at any time by the parties or by the court sua sponte.” Folden v. United
States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). A court “may and should raise the question of its
jurisdiction sua sponte” where jurisdiction is in doubt. Miller v. United States, 67 Fed. Cl. 195, 198
(2005).

1
Plaintiff filed an amended complaint on March 6, 2023, ECF No. 10 (“Am.
Compl.”), and filed a revised IFP motion on March 9, 2023, ECF No. 11. On March 16,
2023, the Court granted Plaintiff’s revised IFP motion and extended the stay of the case
while it continued its jurisdictional review. ECF No. 12.

The amended complaint alleges that Plaintiff is a member of the Ponca Tribe of
Indians, which entered into a treaty with the United States in 1858. Am. Compl. at 1–2
(citing Treaty with the Ponca, U.S.-Ponca, March 12, 1858, 12 Stat. 997 (“Ponca Treaty”)). 2
According to Plaintiff, the Ponca Treaty “guaranteed he would not be subject to state
criminal law.” Id. at 2. But contrary to this alleged “guarantee,” Plaintiff was convicted
of first-degree murder by an Oklahoma state court and sentenced to life in prison with
the possibility of parole. Id. at 1–2. Plaintiff claims that his prosecution, conviction, and
“wrongful detention and incarceration” by the “Oklahoma authorities” violates the
Ponca Treaty. Id. at 1–2, 4.

To support this theory, Plaintiff argues that the Ponca Treaty is “essentially a
contract between two sovereign nations.” Am. Compl. at 3 (quoting Washington v.
Washington State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979)). Plaintiff
claims that the United States’ “fail[ure] to protect” Plaintiff from “Oklahoma state
criminal law” breached this “contract,” which in turn “requires the payment of money.”
Id. at 1–3 (citing various federal and state cases).

Plaintiff alleges that as a result of his “wrongful detention and incarceration,” he
has “suffered loss of liberty, loss of income, alienation of the affection of loved ones, and
deprivations associated with his incarceration, e.g. inability to vote.” Am. Compl. at 2.
Plaintiff seeks: (1) compensatory damages in the amount of $100 per day; (2) $300,000 for
loss of income and alienation of affections; and (3) $1 million in punitive damages for the
“ongoing violation of the treaty despite clearly established law to the contrary.” Id. at 4.
Plaintiff also seeks a litany of other forms of relief, including a writ of mandamus,
appointment of counsel, certification of class status, reimbursement of costs, and
attorney’s fees. Id.

Plaintiff is proceeding pro se, and this Court generally holds a pro se plaintiff’s
pleadings to “less stringent standards.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam). The Court, however, “may not . . . take a liberal view of [a] jurisdictional
requirement and set a different rule for pro se litigants only.” Kelley v. Sec’y of Dep’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). In other words, even a pro se plaintiff “bears
the burden of proving that the Court of Federal Claims possesse[s] jurisdiction over his
complaint.” Sanders v. United States, 252 F.3d 1329, 1333 (Fed. Cir. 2001); see also Colbert v.
United States, 617 F. App’x 981, 983 (Fed. Cir. 2015) (“No plaintiff, pro se or otherwise,

2In evaluating Plaintiff’s complaint for jurisdictional purposes, the Court assumes that the facts
alleged in Plaintiff’s complaint are true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019).

2
may be excused from the burden of meeting the court’s jurisdictional requirements.”). In
the absence of subject-matter jurisdiction, the Court “must dismiss the action.” RCFC
12(h)(3); see also Kissi v. United States, 493 F. App’x 57, 58 (2012) (“If the Court of Federal
Claims determines that it lacks subject matter jurisdiction, it must dismiss the claim.”
(citing RCFC 12(h)(3))).

Generally, “[t]he jurisdiction of the Court of Federal Claims is defined by the
Tucker Act, which gives the court authority to render judgment on certain monetary
claims against the United States.” RadioShack Corp. v. United States, 566 F.3d 1358, 1360
(Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(1)). The Tucker Act provides this Court with
jurisdiction to decide “actions pursuant to contracts with the United States, actions to
recover illegal exactions of money by the United States, and actions brought pursuant to
money-mandating statutes, regulations, executive orders, or constitutional provisions.”
Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004). The Tucker Act, however, “does
not create a substantive cause of action.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en banc). Rather, “a plaintiff must [also] identify a separate source of
substantive law that creates the right to money damages.” Id. (citing United States v.
Mitchell, 463 U.S. 206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)).
Moreover, “[n]ot every claim invoking the Constitution, a federal statute, or a regulation
is cognizable under the Tucker Act.” Mitchell, 463 U.S. at 216. With respect to “money-
mandating” claims, the plaintiff must identify a law that “can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.” Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009, 178 Ct. Cl. 599 (Ct. Cl.
1967).

For the reasons explained below, the Court dismisses Plaintiff’s complaint, sua
sponte, for lack of subject-matter jurisdiction pursuant to RCFC 12(h)(3). See Folden v.
United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (“Subject-matter jurisdiction may be
challenged at any time by the parties or by the court sua sponte.” (citing Fanning, Phillips
& Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))). 3

3 While the Court has liberally construed Plaintiff’s complaint, see Haines v. Kerner, 404 U.S. 519,
520 (1972), the Court only addresses the claims it could reasonably construe. See Demes v. United
States, 52 Fed. Cl. 365, 369 (2002) (“While a court should be receptive to pro se plaintiffs and assist
them, justice is ill-served when a jurist crosses the line from finder of fact to advocate.”); see also
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (“The leniency granted to pro se petitioners . . .
is not boundless. Pro se plaintiffs are treated to less stringent standards, but ‘they are not
automatically entitled to take every case to trial.’ Traditionally the ‘leniency standard’ has still
required basic pleading standards. Arguably, hanging the legal hat on the correct peg is such a
standard, and ‘[l]iberal construction does not require a court to conjure allegations on a litigant’s
behalf.’” (second alteration in original) (quoting, respectively, Pilgrim v. Littlefield, 92 F.3d 413, 416
(6th Cir. 1996), Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and Erwin v. Edwards, 22 F. App’x
579, 580 (6th Cir. 2001))).

3
First, even if the Court accepts Plaintiff’s argument that the Ponca Treaty is
“essentially a contract” with the United States, it is not money mandating. Am. Compl.
at 3 (citing Washington, 443 U.S. at 675). The Tucker Act only grants the Court of Federal
Claims jurisdiction “to render judgment . . . upon any express or implied contract with
the United States” that is money mandating. 28 U.S.C. § 1491(a). While the Court of
Federal Claims “may at times adjudicate Indian treaties,” the treaty still must mandate
“compensation by the Federal government.” Double Lion Uchet Express Trust v. United
States, 149 Fed. Cl. 415, 421–422 n.8, (2020) (citing Holmes v. United States, 657 F.3d 1303,
1309 (Fed. Cir. 2011)). Plaintiff has not identified a single provision of the Ponca Treaty
that is money mandating, and after thoroughly reviewing the instrument, the Court is
unable to locate any money mandating provision.

Second, to the extent that Plaintiff challenges his prosecution and conviction
pursuant to Oklahoma state law, his complaint challenges actions taken by the state of
Oklahoma, not the United States. See Compl. at 1–2. This Court only possesses jurisdiction
over claims against the United States. See RadioShack Corp., 566 F.3d at 1360 (explaining
that the Tucker Act gives the Court authority to render judgment on certain monetary
claims against the United States.” (citing 28 U.S.C. § 1491(a)(1))). To the extent that
Plaintiff challenges actions taken by the state of Oklahoma, this Court lacks jurisdiction
over those claims. See United States v. Sherwood, 312 U.S. 584, 588 (1941) (“[T]he Court of
[Federal] Claims’ . . . jurisdiction is confined to the rendition of money judgments in suits
brought for that relief against the United States, and if the relief sought is against others
than the United States[,] the suit as to them must be ignored as beyond the jurisdiction of
the court.” (citations omitted)).

Third, this Court lacks jurisdiction over Plaintiff’s claims “sounding in tort.”
28 U.S.C. § 1491(a)(1); see Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the Court of Federal
Claims jurisdiction claims sounding in tort.”). Plaintiff’s requests for compensatory
damages, “loss of income” damages, and “alienation of affection” damages all “sound[]
in tort.” 28 U.S.C. § 1491(a)(1); see Rogers v. United States, 66 F. App’x 195, 197 (Fed. Cir.
2003) (affirming dismissal for lack of subject-matter jurisdiction where the plaintiff
sought compensatory damages, because the Tucker Act precludes claims for “tort
damages”); Crane v. United States, 664 F. App’x 929, 930 (Fed. Cir. 2016) (affirming
dismissal for lack of subject-matter jurisdiction where the plaintiff sought loss of income
damages, because this form of relief is reserved for tort claims); Coleman v. United States,
635 F. App’x 875, 876 (2015) (per curiam) (affirming dismissal for lack of subject-matter
jurisdiction when the plaintiff sought damages stemming from “alienation of affection”).
Accordingly, the Court lacks jurisdiction over these claims.

Fourth, this Court does not have jurisdiction over Plaintiff’s claims pursuant to
28 U.S.C. § 1346, as he argues. See Am. Compl. at 1. Contrary to Plaintiff’s assertion,
“[n]o provision of [28 U.S.C. §] 1346 authorizes a claim against the [g]overnment for
money damages [in a manner] relevant to” Plaintiff’s complaint. Doe v. United States,
4
74 Fed. Cl. 794, 797 (2006); see id. at 797–798 (analyzing 28 U.S.C. § 1346, which defines
the jurisdiction of the United States district courts).

Fifth, to the extent that Plaintiff requests his release from the Oklahoma
Department of Corrections, the Court “does not have jurisdiction to provide such a
remedy.” Bobka v. United States, 133 Fed. Cl. 405, 412 (2017); see Jones v. United States, 440
F. App’x 916, 918 (Fed. Cir. 2011) (noting that the Court of Federal Claims “has no
jurisdiction over criminal matters generally” (citing 28 U.S.C. § 1491)). Nor does this
Court possess general injunctive relief powers. See Moore v. United States, 94 Fed. Cl. 456,
463 (2010) (holding that “[t]his Court lacks the authority to grant declaratory and/or
injunctive relief absent a specific and express statute of Congress”), aff’d, 419 F. App’x
1001 (Fed. Cir. 2011).

Sixth, Plaintiff’s request for class certification is deficient. Plaintiff merely alleges
that there are “others similarly situated in Oklahoma Department of Corrections
custody,” including “Native Americans and other persons, who are enrolled citizens and
descendants of citizens of federally recognized Native American tribes.” Am. Compl. at
1–2. As Plaintiff is proceeding “pro se and does not have legal training,” Plaintiff “does
not satisfy the adequacy requirement” for class certification. Moore v. United States, 163
Fed. Cl. 591, 594 (2022) (referring to RCFC 23(a)(4), which requires that “the
representative parties . . . fairly and adequately protect the interests of the class”).
Moreover, pursuant to RCFC 83.1(a)(3), a pro se litigant may only represent “oneself or a
member of one’s immediate family” before this court. RCFC 83.1(a)(3).

Seventh, Plaintiff does not make the requisite showing to receive the appointment
of counsel. To support his request for the appointment of counsel, Plaintiff cites 25 U.S.C.
§ 175, which, in turn, provides that “[i]n all States and Territories where there are
reservations or allotted Indians the United States District Attorney [United States
Attorney] shall represent them in all suits at law and in equity.” 25 U.S.C. § 175. Courts
have “unanimous[ly]” found that the “duty of representation contained therein is
discretionary, not mandatory.” Robinson v. New Jersey Mercer County Vicinage-Family Div.,
514 F. App’x 146, 151 (3rd Cir. 2013) (citing cases from the United States Court of Appeals
for the Ninth Circuit and the United States Court of Appeals for the Tenth Circuit); see
also Greene v. United States, No. 22-1064, 2022 WL 17547204, at *1 (Fed. Cl. Dec. 9, 2022)
(collecting cases); Hernandez v. United States, 96 Fed. Cl. 195, 205 (2010) (collecting cases).
Moreover, the “discretionary duty of [25 U.S.C.] § 175” does not “override the general
test for appointment of counsel under the [IFP] statute, 28 U.S.C. § 1915(e)(1).” Robinson,
514 F. App’x at 151.4

4The Court further notes that 25 U.S.C. § 175 is not actionable pursuant to the Tucker Act and, in
any event, Plaintiff does not explain how the United States Department of Justice possibly could
represent both a plaintiff and the government in the same case.

5
As Plaintiff is proceeding IFP, his request for counsel is governed by 28 U.S.C.
§ 1915(e)(1), which provides that the “court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The United States Court of
Appeals for the Federal Circuit has emphasized that the Court of Federal Claims’ “power
to appoint counsel in civil cases is limited,” noting that the constitutional right to counsel
only applies in cases that “involve the potential deprivation of a liberty interest.” Wright
v. United States, 701 F. App’x 967, 971 (Fed. Cir. 2017) (per curiam) (citing Pitts v. Shinseki,
700 F.3d 1279, 1283 (Fed. Cir. 2012)). This Court, however, cannot alter Plaintiff’s criminal
sentence; in other words, “his criminal sentence — including its length — would not be
affected” by any proper claims. Moore, 163 Fed. Cl. at 594. As such, “his physical liberty
is not at risk of being further deprived if he loses, and the presumption to the right to
appointed counsel does not apply.” Id. This case does not require or warrant the
appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1).

Finally, Plaintiff alleges that the Ponca Treaty guaranteed his protection from
“child custody laws,” but he provides no additional support for this allegation or why
that putative guarantee entitles him to money damages from the United States. Am.
Compl. at 1–4; see Moore, 163 Fed. Cl. at 593 n.1 (explaining that because the plaintiff
mentioned child custody laws “but [did] not provide additional details or related
allegations,” “the court [did] not address these laws in its analysis”). Even if Plaintiff had
provided some factual allegations, this Court does not have jurisdiction over child
custody disputes. See Stewart v. United States, No. 17-1145C, 2017 WL 4111337, at *2 (Fed.
Cl. Sept. 18, 2017) (explaining that “child custody disputes . . . are not within the
jurisdiction of the Court of Federal Claims because they do not seek money damages from
the United States”).

For the reasons explained above, the Court hereby DISMISSES Plaintiff’s
complaint for lack of subject-matter jurisdiction pursuant to RCFC 12(h)(3). The Clerk of
the Court is directed to enter JUDGMENT for the government.

IT IS SO ORDERED.

s/Matthew H. Solomson
Matthew H. Solomson
Judge

6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9389535. Public record. Not legal advice.