                                 ORIGINof
      3Jn tbe Thlniteb ~tates ~ourt                   jfeberal ~laims
                                  No. 15-1509C
                               (Filed July 6, 2016)
                             NOT FOR PUBLICATION                  FILED
                                                                JUL - 6 2016
* * * * * * * * * * * * * * * * **                             U.S. COURT OF
                                 *                            FEDERAL CLAIMS
                                 *
ANTHONY JOHNSON,                 *
                                 *
                 Plaintiff,      *
           V.                    *
                                 *
THE UNITED STATES,               *
                                 *
                 Defendant.      *
                                 *
* * * * * * * * * * * * * * * * **
                    MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

        Plaintiff, Anthony Johnson, alleges that certain federal judges improperly
dismissed civil rights actions that he had filed. He styled his complaint as being
brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(l), but later
clarified that he was attempting to assert breaches of fiduciary duties. The
government has moved to dismiss the case for lack of subject-matter jurisdiction
under Rule 12 (b)(l) of the Rules of the United States Court of Federal Claims
(RCFC). Plaintiff has filed a motion to amend his complaint. For the reasons
stated below, the government's motion is GRANTED and plaintiff's motion is
DENIED.

                                I. BACKGROUND

       Mister Johnson had filed three civil actions in the United States District
Court for the Eastern District of Pennsylvania (Eastern District). Compl. at 2-3.
Between January 20, 2015 and October 8, 2015, all three of these actions were
dismissed, each by a different judge in that district. Id. Plaintiff alleges that a
number of civil rights actions by African-Americans have been improperly dismissed
over the past 20 years, presumably also by judges in the Eastern District. Id. at 3.
Mister Johnson also contends that the United States Court of Appeals for the Third
Circuit (Third Circuit) condoned the improper actions of the district court "through
deliberate hindrance of the appellate procedures." Id. at 4.

        On December 14, 2015, plaintiff filed a complaint in this court, naming the
United States of America, the Third Circuit, the district court, three federal judges
from the Eastern District, and the Clerk of the Third Circuit as defendants. Compl.
at 1. In the complaint, plaintiff maintains that our court has jurisdiction under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(l). Id. at 1. Mister Johnson
breaks his allegations into four claims and two causes of action. He alleges that the
three trial court judges, following a pattern in their court, improperly dismissed his
civil rights complaints against white officials to deprive him of his right to a jury
trial. Id. at 2-3. He contends that these systematic, improper dismissals deprived
him and other African-American plaintiffs of their compensatory damages and
litigation fees, misusing tax dollars in the process. Id. at 3. Plaintiff also claims
that the Third Circuit and its clerk furthered this alleged deprivation of trial by
jury, and that all of the federal officials named followed a secret plan to impede pro
se litigants, misusing tax dollars and deterring government oversight. Id. at 4.

       Both causes of action are identified as brought under the FTCA. See Compl.
at 5. The first alleges a secret, racially-motivated plan to manipulate court
procedures to deprive plaintiffs of jury trials under cover of immunity. Id. The
second maintains that this secret plan misuses taxes, depriving African-American
taxpayers of a right to fair trial procedures and jury trials. Id. at 5-6. Plaintiff
seeks $7 million in damages and a hearing before a committee of the U.S. Senate.
Id. at 6-7.

       On February 12, 2016, the government filed a motion to dismiss Mr.
Johnson's complaint. In support of that motion, the government notes that our
court lacks jurisdiction over FTCA claims. Def.'s Mot. to Dismiss (Def.'s Mot) at 3-
4. The government also contends that, since this court lacks jurisdiction over claims
against individual federal officers or agents, Mr. Johnson's complaint must be
dismissed to the extent that his claims are against such officers or agents. Id.

       Two weeks later, Mr. Johnson filed a motion for leave to file an amended
complaint. He seeks to add a paragraph to his complaint which alleges that a judge
in the Eastern District had issued an order, after plaintiff filed his complaint in our
court, requiring plaintiff to show cause why an injunction should not issue to
prevent him from filing additional papers or lawsuits on the same subject as the
case that judge had dismissed. 1 Pl.'s Mot. to Amend. Compl. at 1.



1 Plaintiff provided the court with a copy of the judge's order and his response
thereto. See ECF No. 10. The district court was apparently not satisfied with this
response, as Mr. Johnson informed our court that the pre-filing injunction
subsequently issued. See Pl.'s Reply to Def.'s Opp'n to Mot. to Amend Compl. at 1.
                                         -2-
       On March 7, 2016, plaintiff filed his response to the government's motion to
dismiss his case. In that response, plaintiff argues that one of the cases relied upon
by the government supports his claims. Mister Johnson contends that our court has
jurisdiction because, in his view, the United States is a trustee of the funds collected
from taxpayers via taxation --- and claims for breach of trust obligations are within
our jurisdiction under United States v. Mitchell, 463 U.S. 206 (1983). Pl.'s Resp. to
Def.'s Mot. to Dismiss (Pl.'s Resp.) at 1-4. He also seems to suggest that his case
concerns criminal violations such as perjury, subornation of perjury, and conspiracy.
See id. at 4 (citing 18 U.S.C. §§ 241-42, 1621-23). Plaintiff also asserts that our
court possesses jurisdiction over his claims, even those sounding in tort, because
"almost any suit sounds in tort." Id. at 4. 2

        In the reply in support of its motion to dismiss the case, the government
reiterates its position that our court lacks jurisdiction over tort claims and contends
that Mr. Johnson's complaint contains no claims of breach of fiduciary duty or of
criminal conduct. Def.'s Reply to Pl.'s Resp. to Def.'s Mot. to Dismiss (Def.'s Reply)
at 1-2. The government also argues that, even if these new claims were properly
pled in the complaint, they would still be outside of this court's subject-matter
jurisdiction. Id. at 2. Defendant contemporaneously filed its opposition to the
plaintiff's motion to amend the complaint. In that paper, the government argued
that leave to amend the complaint should be denied because the additional
allegations concerned another court's issuance of an order, a matter over which this
court's jurisdiction does not extend. Def.'s Opp'n to Pl.'s Mot. to Amend Compl.
(Def.'s Opp'n) at 1 (citing Shinnecock Indian Nation v. United States, 782 F.3d 1345,
1352 (Fed. Cir. 2015)).3

       Plaintiff replied in support of his motion for leave to amend the complaint,
arguing that the proposed amendment showed the continuing nature of the alleged
breach of trust. Pl.'s Reply to Def.'s Opp'n to Mot. to Amend Compl. at 1-2. He was
also allowed to file a sur-reply in opposition to the motion to dismiss the case, in
which he argues that 28 U.S.C. § 453 is the source of the fiduciary obligations which
the government allegedly breached in this matter. Pl.'s Sur-reply at 1-3.




2Mister Johnson bases this argument on his idiosyncratic reading of "tort" as
meaning "to twist." Pl.'s Resp. at 4.

3 The government noted that plaintiffs motion was more properly seen as a motion
to file a supplemental complaint, because it concerned a matter --- the issuance of
the show cause order --- that occurred after the filing of the complaint in our court.
Def.'s Opp'n at 1.
                                         -3-
                                  II. DISCUSSION

A. Legal Standards

       Under RCFC 12(b)(l), this court must dismiss a claim over which it lacks
subject-matter jurisdiction. Our court's "power to adjudicate in specific areas of
substantive law" is properly challenged by a RCFC 12(b)(l) motion. Palmer v.
United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999). When considering a motion to
dismiss for lack of subject-matter jurisdiction, courts will normally accept as true all
factual allegations made by the pleader and draw all reasonable inferences in the
light most favorable to that party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002); CBY Design
Builders v. United States, 105 Fed. Cl. 303, 325 (2012).

        While a prose plaintiff's filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court's jurisdiction from being dismissed. See, e.g., Henke v. United
States , 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991). Here , despite being a prose litigant, Mr.
Johnson's pleadings must show that one or more of his claims falls within the
jurisdiction of this court if he is to avoid dismissal.

       The subject-matter jurisdiction of the Court of Federal Claims is primarily
set out in the Tucker Act, which grants "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)(l) (2012). Because the Tucker
Act itself does not create a substantive cause of action, however, "in order to come
within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must
identify a separate source of substantive law that creates the right to money
damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). In United
States v. Mitchell, 463 U.S. 206 (1983) , the Supreme Court explained:

      Not every claim invoking the Constitution, a federal statute, or a
      regulation is cognizable under the Tucker Act. The claim must be one
      for money damages against the United States, and the claimant must
      demonstrate that the source of substantive law he relies upon "can
      fairly be interpreted as mandating compensation by the Government
      for the damages sustained."




                                         -4-
Id. at 216-17 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)) (internal
citations omitted).

B. Analysis

       As the government correctly notes, claims made under the Federal Tort
Claims Act are outside of our court's subject-matter jurisdiction. See Trevino v.
United States, 113 Fed. Cl. 204, 209 (2013); 28 U.S.C. §§ 1346(b)(l) (assigning tort
claim jurisdiction to district courts), 1491(a)(l) (limiting our jurisdiction to "cases
not sounding in tort"). Nor does this court have jurisdiction over claims of criminal
law violations, see, e.g., Dumont v. United States, 85 Fed. Cl. 425, 430 (2009), aff'd,
345 F. App'x 586, 593 (Fed. Cir. 2009); Kania v. United States, 650 F.2d 264, 268
(Cl. Ct. 1981) ("[T]he role of the judiciary in the high function of enforcing and
policing the criminal law is assigned to the courts of general jurisdiction and not to
this court."), or claims against individuals, see Stephenson v. United States, 58 Fed.
Cl. 186, 190 (2003) (citing United States v. Sherwood, 312 U.S. 584, 588 (1941)).
The only proper defendant in complaints filed in our court is the United States, see
RCFC lO(a), and the subject-matter cannot concern tortious conduct, see 28 U.S.C.
§ 1491(a)(l).

       Although the complaint invoked the FTCA as its jurisdictional basis, plaintiff
now maintains that this lawsuit may be brought under the Tucker Act. He clarifies
that he is alleging breaches of fiduciary duties that the United States owes him as a
trustee of taxpayer funds. Pl.'s Resp. at 2-4. Without question, federal statutes
and regulations which create more than a "bare trust" and instead "give the Federal
Government full responsibility to manage" identified assets for the benefit of a
plaintiff are money-mandating laws for purposes of our court's jurisdiction.
Mitchell, 463 U.S. at 224. But to establish this court's jurisdiction over the subject-
matter of a case, a plaintiff must do more than merely assert the existence of such a
fiduciary relationship --- he must identify a statute or regulation that mandates the
payment of money for the breach of fiduciary duties. Fisher, 402 F.3d at 1173.

       In this case, plaintiff has done nothing of the sort. He is proceeding on the
creative theory that his payment of taxes to the federal government imposes
fiduciary responsibilities on the federal government regarding the management of
his civil litigation. No statute has been identified as creating these fiduciary
responsibilities, which as a general proposition cannot be squared with the Supreme
Court's rejection of taxpayer standing, see Arizona Christian Sch. Tuition Org. v.
Winn, 563 U.S. 125, 134 (2011). The only statute plaintiff cites in connection with
the purported trust duties is 28 U.S.C. § 453. See Compl. at 4; Pl.'s Resp. at 3-4;
Pl.'s Sur-reply at 1, 3. But this statute merely contains the oath of office that must
be taken by federal judges, and has no language concerning the management of
taxpayer funds or the payment of money damages for the violation of any duties.
See 28 U.S.C. § 453. Plaintiff has thus failed to identify a money-mandating source
of our court's jurisdiction over the subject-matter of his case.

                                         -5-
       Moreover, plaintiff's complaint would have this court review the actions of
other federal courts. This would exceed the power granted to our court by Congress .
See Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001); Joshua v.
United States, 17 F.3d 378, 380 (Fed. Cir. 1994); Bowles v. United States, 2015 WL
4710258, at *4 (Fed. Cl. July 31, 2015), aff'd, 2016 WL 2620137 (Fed. Cir. May 9,
2016). In sum, because plaintiff has complained of tortious and criminal conduct
that is not within our court's jurisdiction; has failed to identify a money-mandating
law that can support this court's jurisdiction; and seeks review of the actions of
other courts, which is beyond this court's power, plaintiff's case must be dismissed
for lack of subject-matter jurisdiction.4

       For similar reasons, plaintiff's motion for leave to amend his complaint is
denied. Mister Johnson seeks to add an additional allegation concerning the
issuance of an order by one of the Eastern District judges. Plaintiff has not
identified any basis for our court's jurisdiction over such a claim, and this court
cannot review the decisions of district courts. See Vereda, 271 F.3d at 1375. The
motion for leave to amend the complaint is accordingly denied as futile. Foman v.
Davis, 371 U.S. 178, 182 (1962) (holding that a motion for leave to amend a
complaint can be properly denied if amendment would be futile) .

                                III. CONCLUSION

      For the reasons stated above, the government's motion to dismiss this case,
under RCFC 12(b)(l), is GRANTED, and plaintiff's motion for leave to amend ~is
complaint is DENIED. The Clerk shall close the case.

IT IS SO ORDERED.




4 On June 10, 2016, Mr. Johnson submitted certain documents that purport to be
evidence of the improper conduct of the United States Court of Appeals for the
Third Circuit. As our court lacks jurisdiction over such claims, the Clerk is directed
to return those documents to Mr. Johnson.
                                         -6-
