Allen v. United States

In the United States Court of Federal Claims

No. 23-776

Filed: June 7, 2023

NOT FOR PUBLICATION

JOHN DALE ALLEN,

Plaintiff,

v.

UNITED STATES,

Defendant.

MEMORANDUM OPINION AND ORDER

HERTLING, Judge

The plaintiff, John Dale Allen, proceeding pro se, filed this action on May 25, 2023. The

complaint was docketed on June 1, 2023. The complaint fails to identify a non-frivolous basis

for Tucker Act jurisdiction over the plaintiff’s claims. Dismissal pursuant to Rules 12(b)(1),

12(b)(6), and 12(h)(3) of the Rules of the Court of Federal Claims (“RCFC”) and 28 U.S.C.

§ 1915(e)(2)(B) is appropriate. 1

Before considering the merits of a plaintiff’s claims, a court must first determine that it

has jurisdiction to hear the case. Jurisdiction is a threshold matter that a court must resolve

before it addresses the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-

95 (1998). A federal court has a responsibility to ensure that it has jurisdiction over any claims

asserted. See, e.g., St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir.

2019). A court may dismiss a complaint on its own initiative if “the pleadings sufficiently

evince a basis for that action.” Anaheim Gardens v. United States, 444 F.3d 1309, 1315 (Fed.

Cir. 2006); see also St. Bernard Parish Gov’t, 916 F.3d at 992-93 (citing Foster v. Chatman,

136 S. Ct. 1737, 1745 (2016)).

The plaintiff’s complaint must also satisfy basic pleading requirements, such as setting

forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). If a complaint fails to do so, a court “may dismiss sua

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The complaint was accompanied by a motion for leave to proceed in forma pauperis.

Based on the information contained in the motion, the plaintiff is eligible to proceed in forma

pauperis. Accordingly, the motion for leave to proceed in forma pauperis is GRANTED for the

limited purpose of dismissing the complaint.

sponte under Rule 12(b)(6).” Anaheim Gardens, 444 F.3d at 1315. For example, a court may

dismiss a plaintiff’s complaint without a motion by the defendant when a claim is based on

“frivolous allegations” that are “insufficient to state a plausible claim for relief.” Wickramaratna

v. United States, No. 2022-1786, 2022 WL 17495907, at *1 (Fed. Cir. Dec. 8, 2022) (per

curiam). “A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

The plaintiff is proceeding pro se. As a result, his pleadings are entitled to a more liberal

construction than they would be given if prepared by a lawyer. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972) (per curiam). Giving a pro se litigant’s pleadings a liberal construction does

not divest the pro se plaintiff of the responsibility of demonstrating that the complaint satisfies

the jurisdictional requirements that limit the types of claims the Court of Federal Claims may

entertain. See Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). In

construing a pro se litigant’s pleadings liberally, a court does not become an advocate for that

litigant. Rather, a court ensures that a pro se litigant’s pleadings are construed in a manner that

gives the litigant every opportunity to make out a claim for relief.

The plaintiff’s complaint relies on 28 U.S.C. § 1491 to plead a claim for a $72.5 million

portion of the federal public debt. The plaintiff’s complaint alleges that the defendant has

acknowledged owing this debt to him, and that the “[d]efendant knows that the same debt is

owed to every American in this country.” (Complaint at 2.) The plaintiff also alleges that the

“[d]efendant ADMITS to owing this debt to [p]laintiff and has the obligation to pay this debt to

[p]laintiff.” (Id.)

The complaint does not plead a plausible claim falling within the limited jurisdiction of

the Court of Federal Claims. The jurisdiction of the Court of Federal Claims is established by

the Tucker Act, 28 U.S.C. § 1491(a)(1), which provides:

The United States Court of Federal Claims shall have jurisdiction to

render judgment upon 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)(1).

The Supreme Court has interpreted the Tucker Act to waive the sovereign immunity of

the federal government to allow jurisdiction in the Court of Federal Claims if a claim is: “(1)

founded on an express or implied contract with the United States, (2) seeking a refund from a

prior payment made to the [United States], or (3) based on federal constitutional, statutory, or

regulatory law mandating compensation by the federal government for damages sustained,”

unless arising from a tort. Curie v. United States, 163 Fed. Cl. 791, 799 (2022) (citing inter alia

United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009)).

2

To support the invocation of the limited jurisdiction of the Court of Federal Claims for a

violation of a statutory, regulatory, or constitutional provision, that provision must be money-

mandating, meaning the provision “‘can fairly be interpreted as mandating compensation by the

Federal Government for the damage sustained.’” United States v. Testan, 424 U.S. 392, 400

(1976) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967)). This

money-mandating source of law must be distinct from the Tucker Act itself. Navajo Nation,

556 U.S. at 290.

The complaint and its supporting exhibits cite several federal statutes, including

28 U.S.C. § 3002(15)(A), 18 U.S.C. § 8, and 31 U.S.C. §§ 392, 3123, 5103, as legal bases for the

plaintiff’s claims. 2 Most of these statutes, however, cannot fairly be read to be money-

mandating.

First, 28 U.S.C. § 3002(15)(A) is a statute that defines the words “United States” in

chapter 176 of title 28 to include “a Federal corporation.” It provides no substantive rights and

cannot be fairly read to be money-mandating. Robinson v. United States, No. 17-745C, 2017

WL 2983926, at *2 (Fed. Cl. July 13, 2017).

Second, 18 U.S.C. § 8 sets forth the definition of the term “obligation or other security of

the Unites States” and cannot be fairly read to be money-mandating. This statute also falls under

the criminal code over which the Court of Federal Claims generally may not exercise

jurisdiction. See, e.g., Johnson v. United States, 411 F. App’x 303, 304-05 (Fed. Cir. 2010).

Third, 31 U.S.C. § 5103, formerly 31 U.S.C. § 392, sets forth what is and is not legal

tender in the United States. While the statute does set forth how payments can be made, the

statute cannot be fairly read to be money-mandating because it does not establish any substantive

right on when someone must be paid. See also Kent v. United States, No. 20-717C, 2020 WL

3579998, at *1-2 (Fed. Cl. June 30, 2020).

The complaint does invoke one statute that is money-mandating: 31 U.S.C. § 3123. This

statute requires the federal government “to pay, in legal tender, principal and interest on the

obligations of the Government issued under this chapter.”

2

The plaintiff also relies on an opinion of the United States District Court for the District of

Columbia, which dismissed his case in that court. (Complaint at 1); Allen v. Yellen, No. 1:23-

CV-01012 (UNA), 2023 WL 3040441, at *1 (D.D.C. Apr. 20, 2023). Although the district court

dismissed the plaintiff’s complaint in part because the plaintiff’s requested monetary relief can

only be obtained from the Court of Federal Claims, the district court’s opinion does not conclude

that the Court of Federal Claims has jurisdiction over the plaintiff’s “vague, confused”

complaint. Allen, 2023 WL 3040441, at *1-2 (also dismissing the plaintiff’s complaint for

violating Rule 8(a) of the Federal Rules of Civil Procedure by failing to give “fair notice of the

claim being asserted”). Even if the district court had reached such a conclusion, the district

court’s opinion would not bind this court.

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The plaintiff’s complaint, however, fails to state a plausible claim on which relief can be

granted under 31 U.S.C. § 3123. The complaint does not allege that the plaintiff holds an

obligation issued by the federal government. The complaint contains no allegation that the

plaintiff owns a bond issued by the federal government or that he otherwise plausibly owns any

unpaid federal public debt. Rather, the complaint alleges that the plaintiff is entitled to a portion

of the federal public debt simply by virtue of being an American citizen. The claim is predicated

solely on the United States owing the plaintiff “his portion of the $24 trillion public debt which

is $72.5 million.” (Complaint at 2.)

The frivolous basis for the plaintiff’s claim is also made clear by the math behind the

plaintiff’s numbers. Using the numbers in Exhibit A-1 to the complaint, the plaintiff’s claimed

federal public debt of $24.1 trillion divided by his claimed American population of 332.4 million

yields approximately $72,500. This amount reflects the damages sought by the plaintiff as “his

portion” of the federal public debt and what the plaintiff claims “is now due and owing to each

American man, woman and offspring,” although it is off by a factor of 1,000. (Complaint at 2;

Exhibit A-1 at 1.) Nevertheless, the complaint makes the factual assertion that the defendant has

“ADMIT[TED] to owing this debt to [p]laintiff and has the obligation to pay this debt to

[p]laintiff,” and supports this assertion through the attached Exhibit D. (Complaint at 2.)

At this stage of the case, a court must ordinarily assume that all the plaintiff’s factual

allegations are true. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Trusted Integration, Inc. v.

United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The plaintiff, however, is proceeding in

forma pauperis. Therefore, the Court may “pierce the veil of the complaint’s factual allegations

and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at

327 (citing the former 28 U.S.C. § 1915(d), an earlier version of the current 28 U.S.C.

§ 1915(e)). Although the complaint alleges the defendant has acknowledged it owes the plaintiff

$72.5 million, that claim, based on Exhibit D to the complaint, is baseless and frivolous. Exhibit

D purports to be a representation by the Secretary of the Treasury that the defendant owes the

plaintiff the money he seeks in this suit, but Exhibit D is neither on agency letterhead nor signed.

Rather, Exhibit D on its face is a forgery prepared by the plaintiff, reflecting the same typeface

as the other exhibits the plaintiff prepared and submitted in support of his complaint.

Even though the complaint cites a money-mandating statute, 31 U.S.C. § 3123, it fails to

plead a non-frivolous claim based on that statute. Accordingly, even construed liberally, the

complaint fails to state a plausible claim for relief within the Court of Federal Claim’s

jurisdiction. Accordingly, the complaint must be DISMISSED pursuant to RCFC 12(b)(1),

12(b)(6), and 12(h)(3), and 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 1915(a)(3), the

Court certifies that any appeal taken from this Order would not be taken in good faith. The Clerk

is DIRECTED to enter judgment accordingly. No costs are awarded.

It is so ORDERED.

s/ Richard A. Hertling

Richard A. Hertling

Judge

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