                                        ORIGIf\|AI.
              lJntbt @rfteU btstts @ourt                            of   /eUrrsl @lsims
                                                      No. l4-179C
                                               (Filed: July 30,2014)              FILED
                                         (Nor ro           BE   PUBLISHED)       JUt   S   0   2ol4

                                                                                U,S. COURTOF
                                                                               FEDERALCLAIM9
*.'1.*,********{.**'1.**t **{, * {.+*   *,t * *:}*   ***
                                                           )
BRIDGET ALLEN,                                             )
                                                           )
                            Plaintiff,                     )
                                                           )
                                                           )
                                                           )
UNITED STATES,                                             )
                                                           )
                            Defendant.                     )
                                                           )
*{' * *+*   *** *** *******r( *** {.** **,fi *** **


            Bridget Allen, pro se, Alexandria, Virginia.

        Daniel B. Volk, Trial Attomey, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the briefs were
Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director,
and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.


                                              OPINION AND ORDER

LETTOW, Judge.

         Ms. Allen appears before the court pro se, alleging an illegal taking by the Department of
 Housing and Urban Development C'HUD) when it failed to investigate adequately complaints
 she filed with the agency under the Fair Housing Act, 42 U.S.C. $ 3604. Am. Compl. at 3, ECF
 No. 11. She claims that HUD's ineffective actions illegally confiscated her rights to address
 alleged wrongs. 1d. Pending before the court are (1) Ms. Allen's motion for leave to proceed ir?
forma pauperis, filed on March 3,2014, (2) the govemment's motion to dismiss pursuant to
 Rules l2(b)( l ), (6) of the Rules of the Court of Federal Claims ("RCFC"), filed on June 5, 2014,
 and (3) Ms. Allen's motion for disqualification of all ofthejudges of this court, filed on June 6,
 2014.
                                       BACKGROUND'

        Ms. Allen states in her amended complaint that she filed a number of complaints with
HUD in 2009 through 2013 regarding alleged violations of the Fair Housing Act, 42 U.S.C.
$ 3604. Those complaints included claims of discrimination on the basis ofrace and sexual
harassment. Am. Compl. at 2. Specifically, in January 2009, Ms. Allen had filed an
administrative complaint with HUD under the Fair Housing Act for events that allegedly took
place at her apartment complex located in Alexandria, Virginia. Am. Compl. flfl 26-30. She
alleged that she was harassed by the management staff of the complex in mid-2007, followed by
unconsented attempts by the staff to enter her apartment in April 2008 and again in August 2008.
Am. Compl. Ex. 2.'z HUD received her complaint, Am..Compl. Ex. 1, and apparently referred it
to the Virginia Fair Housing Office, Am. Compl. Ex. 2.' On April 28,2009, that office
determined that her claims of discrimination and harassment in 2007 were time-barred under the
applicable one-year statute of limitations, and her other claims, including attempted unlaw{Ll
entry, evidenced no discriminatory intent and did not raise fair housing issues. Am. Compl. Ex.
2.



        'The recitation ofbackground information does not constitute findings offact by the
court and is given solely to provide a context for deciding the current motions. Unless otherwise
noted, however, the circumstances appear to be undisputed.

       2In
            2007 through 2008, Ms. Allen apparently also filed complaints with the local police
department and city govemment. Am. Compl. Ex. 2. In her complaint to HUD, she also
asserted that these entities failed to properly investigate those complaints. 1d

       3HUD likeiy
                   transferred her complaint pursu ant to 42 U.S.C. $ 3610(f), which states that:

               (1) Whenever a complaint alleges a discriminatory housing practice--
                      (A) within the jurisdiction of a State or local public agency;
                      and
                       (B) as to which such agency has been certified by the Secretary
                       under this subsection;
               the Secretary shall refer such complaint to that certified agency before
               taking any action with respect to such complaint.
               (2) Except with the consent of such certified agency, the Secretary, after
               that refenal is made, shall take no further action with respect to such
               complaint unless--
                       (A) the certified agency has failed to commence proceedings with
                       respect to the complaint before the end ofthe 30th day after the
                       date of such refenal;
                       (B) the certified agency, having so commenced such proceedings,
                       fails to carry forward such proceedings with reasonable promptness;
                       or
                       (C) the Secretary determines that the certified agency no longer
                       qualifies lor certification under this subsection with respect to the
                       relevant iurisdiction.
        It then appears that Ms. Allen filed another complaint with HUD, alleging claims
identical to those in her first complaint. Am. Compl. Exs. 3 & 4. Again, HUD referred her
complaint to the Virginia Fair Housing Office. See Am. Compl. Ex. 3. On December 9, 2009,
the Virginia Fair Housing Office dismissed her new complaint for the same reasons as those
stated in rejecting her earlier complaint. Am. Compl. Ex. 4. A week later, Ms. Allen sent an
amended complaint to the Region III Director of HUD, providing additional details regarding her
allegations of fair housing violations. Am. Compl. fl 34 & Ex. 5. Ms. Allen alleges that after
receiving her amended complaint, HUD failed to "intake and investigate" her submission as
outlined in HUD's Title VIII Complaint Intake, Investigation, and Conciliation Handbook.
Am. Compl. 135; see Am. Compl. Exs. 7-9; see also Department of Housing & Urban
Development, Complaint, Intake, Investigation, and Conciliation Handbook (8024.01), Chs.4,7
(May 5 2008), available at www.hud.gov/officesadm/hudclipsftrandbooks/fheh/80241/(last
accessed July 28, 2014)." In April 2013, Ms. Allen filed yet another fair housing complaint with
HUD regarding the continuing "hostile housing environment" at her apartment complex. Am.
Compl. fl 53.. She alleges this complaint also was not filed and investigated as required. Am.
Compl. fl 54.'

        On March 4,2014, Ms. Allen filed the complaint in this case, alleging that HUD's failure
to intake and investigate her claims resulted in an illegal taking under the Fifth Amendment.
Compl. tl 47, ECF No. l. After the government filed a motion to dismiss the complaint,
Ms. Allen responded and requested 30 days to amend her complaint. Pl.'s Opp'n to Def.'s Mot.
to Dismiss ("P1.'s Opp'n"), ECF No. 6. The court granted the requested additional time to
amend her complaint, and on May 21,2014, she filed her amended complaint. In her amended
complaint, she asks the court to award her money damages for the taking of her administrative
claims and to "[i]nvestigate and issue findings" regarding her Fair Housing complaints. Am.
Compl. at 14. The govemment responded by moving to dismiss the amended complaint, Def.'s
Mot. to Dismiss the Am. Compl. ("Def.'s Mot. to Dismiss"), ECF No. 12. Additionally, on June


        "ln addition, Ms. Allen asserts that the Region III Director provided the apartment
complex with the amended complaint she submitted in December 2009, in violation of HUD
procedures. Am. Compl. flfl 37, 38 & Exs. 9, 10. Ms. Allen asserts that the apartment complex's
attorney used this information against her in a related case, as evidenced by his invoices to the
complex. /d. However, the attomey's invoice for work done on behalfofthe apartment
complex indicates that he reviewed a complaint on October 13, 2009. Am. Compl. Ex. 10.
Thus, the attorney must have reviewed a different complaint.
          Ms. Allen also states that the apartment complex filed two suits against her in the
Circuit Court for the City ofAlexandria and the Alexandria General District Court to require her
to provide entry into her apartment. Am. Compl. nn47-52,62; see Am. Compl. Exs. 12-14. She
avers that the judicial processes ofboth suits were invalid and the courts' orders requiring her to
provide entry were void. Am. Compl. flfl 50-51.

       sPreviously,
                     Ms. Atlen filed a complaint with this cou( alleging Fair Housing Act
violations similar to those asserted in this case. See Compl. aI2, Allen v. United States,No. 13-
l20C (Fed. Cl. Feb. 14, 2013). That complaint was dismissed voluntarily by Ms. Allen three
months later. See Order of Mav 30. 2013. Allen v. United States. No. 13-120C.
6,2014, Ms. Allen filed a motion for disqualification of the judges of this court under 28 U.S.C.
$ 455(a). See Pl.'s Mot. for Disqualification, ECF No. 13."

                                             ANALYSIS

                                        A. Motion for Recusal

       Ms. Allen seeks recusal of cil of the judges of this court under 28 U.S.C. $ 455, which,
among other things, requires a federal judge to "disqualiSr himself in any proceeding in which
his impartiality might reasonably be questioned." 28 U.S.C. $ a55(a); see Pl.'s Mot. for
Disqualification af 15-19. Such a motion is determined based on an objective standard     -
"whether a reasonable person would be convinced thejudge is biased." Addams-More v. United
States,79 Fed. Cl. 578, 580 (2007) (intemal citations and quotation marks omitted); see also
Hewlett-Packard Co. v. Bausch & Lomb, lnc.,882 F.2d 1556, 1568 (Fed. Cir. 1989). Ms. Allen
questions the partiality of the court's judges in her cases because they have not rejected the
govemrnent's briefs for alleged deficiencies in complying with the coun's rules. Pl.'s Mot. for
Disqualification at 15-19 (citing RCFC 5.4, 11, l2(bx1)-(7), and 12(d)). The government has
responded that no basis for recusal has been presented. Def.'s Resp. to Pl.'s Mot. for
Disqualification, ECF No. 14.

        Ms. Allen's motion is unavailing. Her allegations are frivolous, and there is no
reasonable basis to question the impartiality of the court'sjudges in acting on the numerous
complaints she has filed in this court over the past several years. See Allen,2014WL 3505585,
at *2-+3.

                                      B. Motion to Dismiss

        Addressing the merits, the govemment argues that Ms. Allen's claims should be
dismissed because (1) her dissatisfaction with HUD's responses to her administrative claims
does not constitute a taking and is not redressable by this court, Def.'s Mot. to Dismiss at 4-5,
and (2) her administrative claims are not property interests cognizable under the Fifth
Amendment, id. at 5-6.

        L   Standards.for decision.

       To withstand the govemment's motion to dismiss for lack of subject matter jurisdiction
under RCFC l2(b)(l) or, altematively, for failure to state a claim under RCFC l2(bX6), the


       6Concurrently,
                         Ms. Allen filed similar motions for disqualification of all of the court's
judges in three other cases pending in this court, namely, Nos. 13-642C, l4-177C, and 14-178C.
 Recently, decisions were issued denying recusals and dismissing the complaints in Case Nos. 13-
 642and1,4-178C. See Allenv. UnitedStates,No. 13-642C,2014WL 3510751 (Fed. Cl. July 15,
 2014) (dismissin g case), appeal docketed,No. l4-5120 (Fed. Cir. July 28,2014); Allenv. United
Srcres, No. 13-642C,2014 WL 3505585 (Fed. CI. July 15, 2014) (denying plaintiff s motion for
 disqualification); Order of Dismissal at 2 n.3, 5, Allen v. United States, No. l4- 178C (Fed. Cl.
 June 1 I , 2014), appeal docketed , No. 145 I 19 (Fed. Cir. July 28 2014).
plaintiff must establish sufficient facts to show the court's subject matter jwisdiction over the
claim and the plausibility of the claim. See Montano Elec. Contractor v. United States,114 Fed.
Cl. 675,679 (2014) (citing .Bell Atlantic Corp v. Twombly, 550 U.S. 544,,555 (2007), and
McAfee, Inc.v. United States, 1 1 1 Fed. C|.696,706 (2013)). While the court construes Ms.
Allen's pro se pleadings liberally, this leniency does not relive Ms. Allen ofher burden to
establish jurisdiction. Id.

        2. Lack ofsubjecl    matter jurisdiction.

        Ms. Allen seeks to invoke the court's jurisdiction pursuant to the Tucker Act, 28 U.S.C.
$ l49l .7 However, the Tucker Act itself doei not create a substantive cause of action; a plaintiff
must also identify a money-mandating law, i.e., "a separate source of substantive law that creates
the right to money damages." Fisher v. United States,402F.3d 1167,1172 (Fed. Cir. 2005)
(citing United Srates v. Mitchell,463 U.S. 206,212-18 (1983)). The Takings Clause of the Fifth
Amendment is such a money-mandating source of law, and this court may exercise subject
matter jurisdiction over a nonfrivolous claim properly brought under that Clause. Moden v.
United States,404 F.3d 1335,1341 (Fed. Cir. 2005).

         In the govemment's view, Ms. Allen labels her Fair Housing Act claims as takings to
serve as a device to invoke this court's jurisdiction. Def.'s Mot. to Dismiss at 4-5. The majority
of her amended complaint is specific to HUD's actions on to her administrative claims, and she
asks the court to investigate and make factual determinations regarding her fair housing claims.
,See Am. Compl. at 14. Putting labels aside, see Katz v. Cisneros,l6 F.3d 1204, 1207 (Fed. Cir.
 1994) ("Regardless ofthe characterization ofthe case ascribed by [plaintiffl in its complaint, we
look to the true nature of the action in determining the existence or not ofjurisdicrion."); see also
Pines Residential Treatment Ctr., Inc. v. United States, 444 F -3d I 379, I 381 (Fed. Cir. 2006)
(affirming the dismissal of a claim of Medicare reimbursement which was pled as a breach of
conftact), the court lacks jurisdiction over such claims , see Fennie v. United States,No. l2-272C,
2013 WL 151685, at *l (Fed. Cl. Jan. 4, 2013) ("To the extent that the complaint could be
construed to allege a violation ofthe Fair Housing Act, the Act directs litigants to district court,
42 U.S.C. $ 3612(o)(1) . . . not this court."). As for Ms. Allen's allegations regarding HUD,s
failure to intake and investigate her complaints in accordance with HUD regulations, the
averments are akin to those underlying a claim to "compel agency action unlawfully withheld or
unreasonably delayed" under the Administrative Procedure Act, 5 U.S.C. $ 706. In contrast to
the Takings Clause, which is money-mandating, the Administrative Procedure Act does not


       7ln
             relevant part, the Tucker Act provides:

                The United States Court ofFederal Claims shall have jurisdiction
                to renderjudgment upon any claim against the United States founded
                either upon the Constitution, or any Act ofCongress or any regulation
                ofan executive departrnent, or upon any express or implied contract
                with the United States, or for liquidated or unliquidated damages in
                cases not soundins in tort.

28 U.S.C. $ la9l(a)(1).
permit money damages. See Faison v. United States, 102 Fed. Cl. 637,641 (2012) ("The
A[dministrative ]P[rocedure ]A[ct] does not authorize an award of money damages at all; to the
contrary, . . . 5 U.S.C. $ 702[] specifically limits the Act to actions 'seeking relief other than
money damages."' (citing and quoting lltopsock v. Natchees,454 F .3d 123'7 , 1333 (Fed. Cir.
2006))). And, the Administrative Procedure Act "grants jurisdiction overjudicial review offinal
agency decisions to the United States district courts and not the United States Court ofFederal
Claims." Id. at 641. Consequently, this court cannot exercise jurisdiction over Ms. Allen's
claims insofar as they turn on the Fair Housing Act or seek judicial review of HUD's actions.

       3. Failure   to state a claim.

        In the altemative, the government argues that Ms. Allen's claim should be dismissed
under RCFC 12(bX6) for failure to state a claim upon which relief may be granted. ,See Def.'s
Mot. to Dismiss at 5-6. To survive a motion to dismiss for failure to state a claim, a takings
claim must plausibly allege both a "cognizable Fifth Amendment property interest" and that the
property interest was "taken." Hearts Bluff Game Ranch, Inc. v. United States,669 F.3d 1326,
1328-29 (Fed. Cir. 2012) (holding that a complaint failed to state a claim when no cognizable
property interest was pled after the Army Corps ofEngineers denied plaintiff s proposal for a
mitigation bank on its property). Ms. Allen argues that her administrative claims each constitute
a "chose in action," which is recognized as a property interest. Pl.'s Opp'n at 11. ln support,
Ms. Allen cites Black's Law Dictionary, which defines a "chose in action" as the "right to bring
an action to recover a debt, money, or thing," Black's Law Dictionary 234 (7th ed. 1999). She
also contends that her right to bring an administrative claim under the Fair Housing Act is a type
ofphysical property. Pl.'s Opp'n at I l. This relabeling effort is not gainfirl. Ms. Allen's
administrative complaints are not cognizable property interests for purposes ofthe Takings
Clause. Additionally, the Fair Housing Act does not create a property right for a person who
makes a complaint under that Act.

                                         CONCLUSION

       For the reasons stated, Ms. Allen's motion for disqualification is DENIED, her motion to
proceed in forma pauperis is GRANTED," and the govemment's motion to dismiss pursuant to
RCFC 12(bxl) and (6) is GRANTED.

        The Clerk shall enterjudgment in accord with this disposition.




        tThe gorremment responded to her application for proceed in
                                                                      forma paupens by urging
the court to deny her application on the ground that her complaint is frivolous. See Def.'s First
Mot to Dismiss at 3-4, ECF No. 5. That argument is tantamount to asking the clerk to refuse to
file Ms. Allen's comolaint and reaches too far.
No costs.

It is so ORDERED.



                    Judge
