                                 ORIGINAI
      lln,bt @nfte! btuteg [.ourt of /e[rrul @tufmg
                                       No. l5-186C
                                  (Filed: June 30,2015)             FILED
                                                                   JUN   30   2015
                                NOT FOR PUBLICATION


MOHAMMED AHMED HASSAN OMRAN.                                     'Efe33'u8l*X5t

                    Plaintifl                     Pro Se Complaint; Rule l2(bXl)
                                                  Motion to Dismiss; Transfer;
                                                  28 U.S.C. ri 1631

THE UNITED STATES,

               Defendant.



Mohammed Ahmed Hassan Ornran, Natchitoches, La., pro se.

Robert C. Bigler, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman. Jr., Director, and Donald E. Kinner, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, D.C., for def'endant.

                                  OPINION and ORDER

CAMPBELL-SMITH, Chief Judge

       Pro se plaintiff, Mohamrned Ahmed Hassan Abdallah Omran, filed a complaint in
this court on February 26,2015, raising claims under the Federal Tort Claims Act, the
Civil Rights Act, and the United States Constitution relating to his arrest, trial, and
conviction for immigration offenses. Compl. at l-2, Feb. 26,2015, ECF No. 1.

       On August 30,2012, Mr. Omran was anested in New Hampshire for falsely
claiming U.S. citizenship in violation of 18 U.S.C. $ 911. See id. at 1. On September
5,2012, Mr. Omran was indicted on charges that he "falsely and willfully represented
himself to be a citizen of the United States on an Employment Eligibility Verification
Form" in violation of l8 U.S.C. $ 9l l.   Indictment, United States v. Abdallah, No. 12-
00117 (D.N.FI. Sept. 5, 2012),ECF No. 1. Mr. Omran states that on September 24,
2012,Immigration and Customs Enforcement officers investigating this offense
conducted an illegal search and seizure at his home in violation of the Fourth
Amendment. Compl. at      l   Plaintiff also states that the lawyer appointed by the court to
represent him violated his right to effective assistance ofcounsel by filing, over his
objections, a motion to dismiss his case. ld. at2.

        On February 27,2014, Mr. Omran was indicted on two counts of failing to depart
the United States after being issued an order of removal, in violation of 8 U.S.C. $
1253(a)(1)(C). Indictment, United States v. Omran, No. 14-00035 (W.D. La. Feb.27,
2014), ECF No. 1. He was tried in the United States District Court for the Western
District of Louisiana. Mr. Omran alleges that he was prohibited from calling witnesses
on his own behalf during his trial, in violation of his Sixth Amendment rights. Pl. Resp.
 1-2,May 11, 2015, ECF No.      8.' On May 12,2015, Mr. Omran was found guilty on
both counts and was sentenced to imprisonment for six months. Judgment, United States
v. Omran, No. 14-00035 (W.D. La. May 12,2015), ECF No. 116. On May 18, 2015,
Mr. Omran filed a notice of appeal. Plaintiff claims that throughout these events, the
govemment violated his rights related to "unreasonable search and seizure, due process,
effective assistance of counsel, equal protection of the law, and right to property."
Compl. at 2.

       On April 27,2015, defendant filed a motion to dismiss plaintiffls claims for lack
of subject matter jurisdiction, pursuant to Rule l2(bXl) of the Rules of the U.S. Court of
Federal Claims (RCFC). ECF No. 7. Also before the court are plaintiff s motion for
leave to proceed in forma pauperis, motion for trial by jury, and motion for the
appointment ofcounsel. ECF Nos. 5,6, 12.

        The court GRANTS plaintiff s motion to proceed in forma pauperis for the
limited purpose of addressing this court's jurisdiction. For the reasons explained below,
the court finds it lacks jurisdiction over plaintiffs complaint. The court also finds it is
not in the interest ofjustice to transfer plaintiffs complaint to a federal district court in
which the complaint could have been brought. Accordingly, defendant's motion to
dismiss is GRANTED and the case is DISMISSED for lack ofjurisdiction pursuant to
RCFC l2(bXl). Plaintiff s motion for trial by jury and motion for the appointment of
counsel are DENIED.




I      Plaintiffdid not allege thcse facts in his complaint but raised them for the first
time in his response to defendant's motion to dismiss. The court acknowledges that this
claim was not properly included in a pleading. See RCFC 7(a). However, because
plaintiff is proceeding pro se and his pleadings are to be construed liberally, the court has
chosen to address this claim.
I.     Legal Standards

       A.     Subject-MatterJurisdiction

        In evaluating subject-matter jurisdiction, "the allegations stated in the complaint
are taken as true and jurisdiction is decided on the face ofthe pleadings." Folden v.
United States, 379 F .3d 1344, 1354 (Fed. Cir. 2004) (internal quotation marks omitted).
Complaints filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Zulueta v. United
States, 553 F. App'x 983, 985 (Fed. Cir. 2014); Kelley v. Sec'y. U.S. Dep't of Labor, 812
F.2d 1378, 1380 (Fed. Cir. 1987).

        The Tucker Act grants this court jurisdiction over "any claim against the United
States founded either upon the Constitution, or any Act ofCongress 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. $
la91(a)(l) (2012). The Tucker Act is jurisdictional and does not create, by itself, any
substantive right to recovery against the United States. United States v. Mitchell,463
U.S. 206, 2 16 (1983); United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a
plaintiff in this court must rest his or her claim on a money-mandating provision of law
that confers a substantive right enforceable against the federal govemment for money
damages. See Testan, 424 U.S. at 398.

       B.     Transfer Under 28 U.S.C. S 1631

        Should this court determines that it lacks jurisdiction over a plaintiff s claims, it
must transfer the case to a court where the action could have been brought if the transfer
"is in the interest ofjustice." 28 U.S.C. $ 1631 (2012); see also Tex. Peanut Farmers v.
United States, 409 F.3d 1370, 137 5 (Fed. Cir. 2005) (stating that the trial court may order
transfer sua sponte). According to the Federal Circuit, "[t]he phrase 'if it is in the
interest ofjustice' relates to claims which are nonfrivolous and as such should be decided
on the merits." Gallowa)r Farms. Inc. v. United States,834 F.2d 998, 1000 (Fed. Cir.
1987) (citing Zinger Constr. Co. v. United States ,7 53 F .2d 1053, 105 5 (Fed. Cir. 1985)).
Frivolous claims include "those whose disposition is obvious." Id.

      In deciding whether transfer is in the interest ofjustice, this court considers
whether any of plaintiff s claims would be decided on the merits in federal district court.

 II.   Discussion

       A.     The Court Lacks Jurisdiction Over Plaintiff s Clarms
                                              3
         For the reasons that follow, the court finds that it lacks jurisdiction over plaintiff s
numerous claims. First, Mr. Omran alleges that U.S. Immigration and Customs
Enforcement officers unlawfully searched his home and seized his possessions, in
violation of the Fourth Amendment. "[F]or this Court to have jurisdiction over
constitutional . . . claims, the claims must be money mandating." Tasby v. United
 States, 91 Fed. Cl. 344,346 (2010) (citing Mitchell,463 U.S. at216,2l8). The Fourth
Amendment, however, does not mandate the payment of money. Brown v. United
 States, 105 F .3d 621 , 62314 (Fed. Cir. I 997) ("Because monetary damages are not
 available for a Fourth Amendment violation, the Court of Federal Claims does not have
jurisdiction over such a violation."). Therefore, this court cannot hear plaintiffs Fourth
Amendment claims.

       Plaintiff s other constitutional claims similarly fall outside of this court's
jurisdiction. Fifth Amendment due process claims, and Fourteenth Amendment due
process and equal protection claims do not mandate the payment of money damages and
thus cannot fumish a basis for jurisdiction. Smith v. United States, 709 F.3d I I14, 11 l6
(Fed. Cir. 2013); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). Nor is
plaintiff s Sixth Amendment ineffective assistance of counsel claim money mandating;
thus, it cannot be raised in this court. Turpin v. United States, I l9 Fed. Cl.704,'707
(2015); Smith v. United States, 51 Fed. Cl. 36, 38 (2001), affd, 36 F. App'x 444 (Fed.
Cir.2002).

        Mr. Omran also invokes the Civil Rights Act and asserts that he is bringing a
"civil rights action." However, this court lacks jurisdiction over federal civil rights
claims. SeeMcCauleyv.UnitedStates,38Fed. Cl.250,265(199'7),afld, l52 F.3d948
(Fed. Cir. 1998)C'Itiswell settled that this court does not have jurisdiction over civil
rights claims brought under Title VII of the Civil Rights Act of 1964 or 42 U.S.C. $
1983.').

        Plaintiff further alleges that he was wrongfully convicted. While under certain
circumstances this court has jurisdiction to hear a claim for money damages for unjust
conviction, 28 U.S.C. $ 1495, such jurisdiction is dependent on the challenged conviction
first having been reversed, set aside, or overturned after a new trial or hearing, or the
prisoner having received a pardon, 28 U.S.C. $ 25 13(a)( 1); Beadles v. United States, 1 15
Fed.CI.242,245(2014);Sharoev.UnitedStates, 112Fed.CI.468,417(2013). Mr.
Omran does not allege that his conviction has been reversed, set aside, or overturned and
provides no indication that he has been granted a pardon. Therefore, Mr. Omran fails to
meet the bar set by 28 U.S.C. $$ 1495 and2513, and this court does not have jurisdiction
to consider his wrongful conviction claim.
        Plaintiff also invokes the Federal Tort Claims Act (FTCA) as grounds for his
complaint, although the contours of his tort claim are unclear. The United States district
courts have exclusive jurisdiction over FTCA cases. Bowling v. United States, 93 Fed.
Cl. 551, 557 (2010); see 28 U.S.C. $ 1346(bXl). Additionally, the Tucker Act makes
clear that this court does not have jurisdiction over tort claims against the govemment.
28 U.S.C. $ 1a9l(a)(1) (stating that this court "shall have jurisdiction to renderjudgment
upon any claim against the United States . . . in cases not sounding in tort" (emphasis
added)); see also Keene Corp. v. United States, 508 U.S. 200,214 (1993); Shearin v.
United States, 992F.2d 1195,ll97 (Fed. Cir. 1993). Therefore, to the extent plaintiff
raises any tort claims, the court lacks jurisdiction.

      Plaintiff s motions for trial by jury and the appointment of counsel are both
denied. Because the court lacks jurisdiction over plaintiffs claims, there is no need for
counsel or a trial in this case. Moreover, "there is no right to a jury trial in this court and
this court does not conduct trials by jury." Ramos v. United States, 112 Fed. Cl. 79, 83
n.3 (2013) (citing Webster v. United States,74 Fed. Cl. 439,444 (2006)).

       B.      Transfer Is Not in the Interest of Justice

      Mr. Omran raises claims relating to two arrests: one in New Hampshire and one
in Louisiana. The court will first address plaintiff s claims arising out of the New
Hampshire arrest. If Mr. Omran filed a claim in federal court in New Hampshire, it
would be bound by the precedent of the First Circuit Court ofAppeals.

        The First circuit has held that res judicata, otherwise known as claim preclusion,
"applies if (l) the earlier suit resulted in a final judgment on the merits, (2) the causes of
action asserted in the earlier and later suits are sufficiently identical or related, and (3) the
parties in the two suits are sufficiently identical or closely related." Airframe Sys.. Inc.
v. Rafiheon Co., 601 F.3d 9, 14 (1st Cir. 2010).

       on November 10,2014, Mr. omran filed a complaint in the united states District
court for the District of New Hampshire alleging many of the same claims he presents in
this court. Compl., Omran v. United States, No. 14-505 (D.N.H. Nov. 10, 2014).2 In

2       Mr. Omran also filed a substantially similar suit in the United States District Court
for the District of Massachusetts on October 14,2014. See Compl., Omran v. United
States, No. 14-13881 (D. Mass. Oct. 14,2014), ECF No. 1. A final decision on the
merits has yet to be issued in that case, so it does not have a res judicata effect on this
case. See Omran v. United States, 2015 WL 237631.4, No. 14-13881 (D. Mass. May 17,
2015). However, the fact that Mr. Omran has had multiple suits in federal district court
on similar claims strengthens the court's conclusion that transferring his complaint is not
in the interestof.iustice.
                                                5
 that action, plaintiff alleged the same facts about the warrantless search and seizure and
 his attomey's failure to heed his wishes regarding the motion to dismiss the criminal
 charges against him. Id. at 8-9. Plaintiff asserted claims under the Fourth Amendment,
 the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments,
 the Sixth Amendment, the Civil Rights Act, and the FTCA, among others. Id. at 5, l0-
 11. On February 10, 2015, the district court found that all of plaintiffs claims were
 either frivolous or failed to state a claim and therefore, dismissed all claims pursuant to
 28 U.S.C. gg 1915(e)(2)(B) and 1915A(b). Omran v. United States, 2015 WL 570723,
 at*1,*9, No. l4-505 (D.N.H. Feb. 10,2015).

        A dismissal for failure to state a claim is a final judgment on the merits. See
Airframe Sys., 601 F.3d at 14; AVX Corp. v. Cabot Corp. ,424 F.3d 28, 30 (lst Cir.
2005)- Additionally, the causes of action asserted in Mr. omran's November 10,2014,
complaint were sufficiently identical to the claims he raises in this court relatine to his
New Hampshire arrest. Finally, the parties in the two suits were essentially thJ same.
In the New Hampshire suit, Mr. omran sued the united States as well as numerous
federal and state offices and employees. Here, Mr. omran sues only the united states.
Since Mr. omran's claims against the united States have already beln dismissed in
                                                                                        the
District of New Hampshire, res judicata would bar Mr. omran fiom relitigating them in
federal court. Therefore, transfer of these claims would be futile and not in
                                                                                G interest
ofjustice.

        Plaintiffs wrongful conviction claim relates to his arrest and trial in the United
States District court for the western District of Louisiana for failure to depart. If the
plaintiff brought a case in Louisiana, it would be subject to the precedent
                                                                              orthe pftrr
circuit court ofAppeals. In order to recover damages for an allegedly unconstitutional
conviction or imprisonment, a plaintiff "must prove ihat the conviction or sentence
                                                                                        has
been reversed on direct appear, expunged by executive order, declared
                                                                        invalid b! a state
tribunal authorized to make such determination, or called into question by a
                                                                              federal
court's issuance ofa writ ofhabeas corpus." Heckv. Humphrey,512 u:s.
                                                                              477,ig6_g7
(1994); see also Boyd v. Biggers, 31 F.3d 279,282-83     (5iciti99+).     since ptaintiff
has offered no evidence that his conviction has been reversed, expunged,
                                                                          or otherwise
declared invalid, he would be barred from raising this claim in  feiera-i district coun.

.becauseAdditionally, justice does not require the court to transfer plaintiffs
         Mr. Omran will have
                                                                                complaint
                                the opportunity to challenge his failure to depart conviction
on Sixth Amendment or other grounds through the direct appeal
                                                                   ofthat conviction.
Plaintiff has already filed a notice ofappeal, and the case has been docketed in
                                                                                   the Fifth
circuit. United States v. omran, No. l5-30461 (5th cir. docketed May 22,2015).
        Since plaintif'f s claims would not warrant a decision on the merits in federal
district court, and plaintiffhas had and will have other opportunities to raise these claims,
transfer of this case is not in the interest of iustice.

 III.   Conclusion

        For the reasons discussed above, the court finds that it lacks jurisdiction over
plaintiff s claims. Defendant's motion to dismiss is GRANTED. Plaintiff s motion for
trial by jury is DENIED. Plaintiff s motion for appointment of counsel is DENIED.

       Plaintiff s motion to proceed in forma pauLeris is GRANTED for the limited
purpose of addressing this court's jurisdiction. Pursuantto28 U.S.C. $ 1915(b),
prisoners who are allowed to proceed in forma pauperis are still required, over time, to
pay the full amount of the filing fee. Thus, plaintiff shall be assessed, as a partial
payment ofthe court's filing fee, an initial sum of twenty percent of the greater of (1) the
average monthly deposits into his account, or (2) the average monthly balance in his
account for the six-month period immediately preceding the filing of his complaint. Id.
$ 1915(b)(l). Thereafter, plaintiff shall be required to make monthly payments 01'
twenty percent of the preceding month's income credited to his account. Id. $
 1915(bX2). The agency having custody of plaintiff shall forward payments from
plaintiff s account to the clerk of the court of Federal claims each time the account
balance exceeds $10 and until the filing fee is paid in full. Id.

        The Clerk ofthe Court is directed to enter judgment for defendant. No costs.

        IT IS SO ORDERED.



                                                          atricia E. C
