                                RIG~NAL
I•




             3Jn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns
                                                No. l 7-1069C

                                         (Filed: December 12, 2017)

     ********** ********************* ******
                                                         *
     LUIS IVAN POBLETE,                                  *
                                                         *                            FILED
                                  Plaintiff,             *
                                                         *                          DEC 12 2017
     v.                                                  *                        U.S. COURT OF
                                                         *                       FEDERAL CLAIMS
     THE UNITED STATES,                                  *
                                                         *
                                  Defendant.             *
                                                         *
     *************************************
                                          OPINION AND ORDER

     WHEELER, Judge.

            Louis Ivan Poblete, a prose plaintiff, seeks relief in this Court for alleged unlawful
     acts committed against him in connection with a District of Columbia foreclosure and
     eviction action. Shortly after filing his complaint with the Court, Mr. Poblete moved to
     amend his complaint pursuant to Rules l 5(a)(l) and l 5(a)(2) of the Court of Federal Claims
     ("RCFC"). Dkt. No. 5. The Government opposed Mr. Poblete's motion to amend on
     September 5, 2017, Dkt. No. 6, and filed a motion to dismiss Mr. Poblete's original
     complaint for lack of subject matter jurisdiction on October 5, 2017. Dkt. No. 9. For the
     reasons explained below, the Court DENIES Mr. Poblete' s motion to amend his complaint
     and GRANTS the Government's motion to dismiss.

                                                 Background 1

            Mr. Poblete is a U.S. citizen and a resident of the District of Columbia. Prop. Am.
     Compl. at 1. In his complaint, Mr. Poblete appears to name four defendants: the United
     States, the District of Columbia, the Superior Court of the District of Columbia Landlord

     1 TheCou1t draws the facts as stated in the Background section of this Opinion from the Proposed Amended
     Complaint, cited herein as "Prop. Am. Comp!." For purposes of the pending motions, these facts are
     assumed to be true.



                                   7017 1450 DODO 1346 0560
Tenant Branch, and Residential Credit Opportunities Trust. Id. He alleges that each of
these defendants committed trespass against him and his estate by initiating foreclosure
proceedings on his home and ultimately evicting him. Id. at 4. Mr. Poblete further alleges
that the Superior Court of the District of Columbia committed the tort of attempted
kidnapping and violated his First Amendment right to free speech after the judge in a
foreclosure-related hearing did not allow him to ask a question after the hearing had
concluded and allegedly threatened to hold him "in the custody of the court" if he did not
leave the courtroom. Id. at 3-4.
        Mr. Poblete argues that his claims are properly brought before this Court pursuant
to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, and asks the Court to resolve
the following questions accordingly:
              (a)  If any treaties have been violated?
              (b)  If any constitutional violations have occurred?
              (c)  If there are any federal statutes or codes being violated?
              (d)  Since ... [Mr. Poblete] has not waived any of [his] rights
                  and immunities knowingly[, if Mr. Poblete's] rights and
                  immunities have been violated by this foreign corporation
                  and its agencies?
              (e) Is this foreign corporation in violation of [E]xecutive
                  Order 13132, signed August 4, 1999?
Prop. Am. Comp!. at 4.
       Mr. Poblete filed his original complaint with the Court on August 4, 2017. Dkt. No.
I. A few days later, on August 17, 2017, Mr. Poblete moved to amend his complaint
pursuant to RCFC 15(a)(l) and 15(a)(2). Dkt. No. 5. The Government opposed Mr.
Poblete's motion to amend on September 5, 2017, Dkt. No. 6, and moved to dismiss his
original complaint on October 5, 2017. Dkt. No. 9. The parties completed briefing on all
pending motions on December 7, 2017, and the Court has deemed oral argument
unnecessary.
                                         Discussion

                      Mr. Poblete's Motion to Amend His Complaint

        A party may amend its complaint under RCFC Rule 15(a)(l) as a matter of course
within either 21 days after service of the pleading or "if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days
after service of a motion under RCFC l 2(b ), (e), or (t), whichever is earlier." Additionally,
a party may amend its complaint under RCFC Rule 15(a)(2) with the Court's leave, which
should be given "when justice so requires." Courts construe this language liberally, and
generally grant leave to amend barring any "apparent or declared reason" not to permit
amendment. A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1158 (Fed. Cir. 2014)

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(quoting Farnan v. Davis, 371 U.S. 178, 182 (1962)). The Court should deny leave to
amend if there is evidence of delay, bad faith, repeated failure to correct a complaint's
deficiencies, undue prejudice to the opposing party, or if the amendment would be futile.
Id.

        While Mr. Poblete's motion to amend his complaint falls within the time frames
dictated by RCFC 15(a)(l), the Court may nevetiheless deny Mr. Poblete's motion under
RFCF l 5(a)(2) if there is evidence of delay, bad faith, repeated failure to correct a
complaint's deficiencies, undue prejudice to the opposing party, or ifthe amendment would
be futile. A & D Auto Sales, 748 F.3d at 1158. Here, there is no evidence of bad faith or
undue delay by Mr. Poblete, and this is his first request to amend his complaint. Further,
the Government does not argue that it would be unduly prejudiced if Mr. Poblete were
granted leave to amend his complaint. Indeed, the amendments Mr. Poblete proposes
mostly serve to add details to factual allegations in the original complaint. Instead, the
Government argues that Mr. Poblete should not be granted leave to amend because his
proposed amendments would be futile. Therefore, this Court's analysis will focus entirely
on whether Mr. Poblcte's proposed amendments would be futile.

        A proposed amendment is futile if it would not survive a motion to dismiss. Meyer
Grp., Ltd. v. United States, 115 Fed. Cl. 645, 650 (2014). Accordingly, "the party seeking
leave must proffer sufficient facts supporting the amended pleading that the claim could
survive a dispositive pretrial motion." Id. (quoting Kemin Foods, L.C. v. Pigmentos
Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1354-55 (Fed. Cir. 2006)) (internal
punctuation omitted). Here, the Government argues that the amendments would be futile
because they would not survive a motion to dismiss brought under RCFC 12(b)(l).
Specifically, the Government argues that the Court lacks subject matter jurisdiction over
Mr. Poblete's proposed amended complaint because (1) the Court does not have
jurisdiction over claims brought under the AP A; (2) the Court does not have jurisdiction
over the District of Columbia or its agencies; and (3) Mr. Poblete has failed to identity a
separate money-mandating source of law entitling him to relief. See Def. 's Resp. at 3-4.
The Court will examine each of the Government's arguments in turn. 2




2
   Mr. Poblete did not provide the Government with a copy of his amended complaint. See Def.'s Resp. at
2. However, the Government argues that Mr. Poblete's original complaint "makes clear that [the] Court
lacks jurisdiction over his claims, and no amendment could cure the jurisdictional defects." Id. Indeed,
Mr. Poblete's original complaint and his amended complaint are essentially the same, save for the addition
of a tort claim and First Amendment claim against the Superior Comt of the District of Columbia in his
amended complaint. See Prop. Am. Comp!. at 3-4. The Court will address these additional claims in Pait
I. C of this Opinion.

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      I.      The Court Lacks Subject Matter Jurisdiction Over Mr. Poblete's Claims.

           A. Standard of Review

        The Government argues that this Court lacks subject matter jurisdiction over Mr.
Poblete's amended complaint. Therefore, the Court's analysis of the Government's
jurisdictional argument is substantially the same as it would be for a motion to dismiss for
lack of subject matter jurisdiction under RCFC l 2(b )( 1).

       The Tucker Act ordinarily is the focus of subject matter jurisdiction in this Court,
and states:

                 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. § 149l(a)(l). The Tucker Act itself "does not create a cause of action." RHI
Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). Thus, a plaintiff
must identify a "separate source of substantive law that creates the right to money
damages" in order to invoke the Court's jurisdiction over a claim. Greenlee County, Ariz.
v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005)). Failure to establish jurisdiction under the Tucker Act
requires the Court to dismiss under Rule 12(b)(1 ). Outlaw v. United States, 116 Fed. Cl.
656, 658 (2014). When deciding a Rule 12(b)(l) motion to dismiss, a court must assume
all the undisputed facts in the complaint are true and draw reasonable inferences in the non-
movant's favor. Erikson v. Pardus, 551 U.S. 89, 91 (2007). Courts hold pleadings made
by pro se plaintiffs to a less stringent standard and liberally construe language in the
plaintiffs favor. Id. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972).

       B. Claims Brought Under the APA

      Mr. Poblete asserts that this Court has jurisdiction to hear his claims under the APA,
5 U.S.C. § 702, which states, in relevant part:

                       A person suffering legal wrong because of agency
                action, or adversely affected or aggrieved by agency action
                within the meaning of a relevant state, is entitled to judicial
                review thereof. An action in a court of the United States
                seeking relief other than money damages and stating a claim


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                 that an agency or officer or employee thereof acted or failed to
                 act in an official capacity or under color oflegal authority shall
                 not be dismissed nor relief therein be denied on the ground that
                 it is against the United States or that the United States is an
                 indispensable party.

5 U.S.C. § 702. However, this Court lacks jurisdiction to hear claims brought under the
AP A because the AP A is not a money-mandating statute. See Martinez v. United States,
333 F.3d 1295, 1313 (Fed. Cir. 2003). Rather, the APA provision Mr. Poblete points to
waives sovereign immunity only for claims seeking "relief other than money damages." 5
U.S.C. § 702 (emphasis added). As this Court's jurisdiction under the Tucker Act is limited
to claims for monetary relief, except for limited circumstances not applicable here, the
APA fails to grant this Court both subject matter jurisdiction over Mr. Poblete's claims and
the authority to answer the questions he poses at the end of his complaint. See Prop. Am.
Comp!. at 4.

        C. Claims Against the District of Columbia and Its Agencies

        This Court only has jurisdiction to entertain claims against the United States. 28
U.S.C. § 149l(a)(l); United States v. Sherwood, 312 U.S. 584, 588 (1941); Moorev. Public
Defenders Office, 76 Fed. Cl. 617, 620 (2007) ("When a plaintiffs complaint names
private parties, or local, county, or state agencies, rather than federal agencies, this court
has no jurisdiction .... "); Pikulin v. United States, 97 Fed. Cl. 71, 75 (2011) ("It is well
settled that the United States is the only proper defendant in the Court of Federal Claims.").
Here, in addition to the United States, Mr. Poblete appears to name the District of
Columbia, the Superior Court of the District of Columbia Landlord Tenant Branch, and
Residential Credit Opportunities Trust as defendants. As this Court does not possess
jurisdiction over claims against the District of Columbia, District of Columbia officials and
agencies, or private organizations, Mr. Poblete's complaint fails to meet the foundational
jurisdictional requirement that the United States be the defendant, and the only defendant. 3

        Further, this Court lacks jurisdiction to hear Mr. Poblete's tort claim against the
Superior Court of the District of Columbia for attempted kidnapping and his constitutional
claim that the Superior Court violated his First Amendment right to free speech. The Court
of Federal Claims does not have the authority to hear claims that sound in tort. 28 U.S.C.
§ 149l(a)(l); Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). The Federal
Tort Claims Act grants jurisdiction to hear tort claims exclusively to federal district courts.
28 U.S.C. § 1346(b)(l). Moreover, the Court lacks jurisdiction over First Amendment
violations because monetary damages are not available under this provision of the U.S.
Constitution. United States v. Connolly, 716 F.2d 882, 886-87 (Fed. Cir. 1983).


3
 The Comt also notes that contrary to Mr. Poblete's assertions, the District of Columbia and its courts are
not agents of the United States. See Sindram v. United States, 67 Fed. Cl. 788, 794 (2005).

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          D. Absence of Money-Mandating Statute or Contract

      Finally, the Court notes that Mr. Poblete fails to identify any separate money-
mandating statute or contract anywhere in his complaint that would entitle him to relief.
As such, this Court lacks jurisdiction over Mr. Poblete's claims.

    II.      Conclusion

        The Court finds Mr. Poblete's claims in his Proposed Amended Complaint to be
futile because they do not fall under the Court's subject matter jurisdiction. Therefore, Mr.
Poblete's motion to amend his complaint is DENIED.

                           The Government's Motion to Dismiss

       The Government has moved to dismiss Mr. Poblete's original complaint. See Dkt.
No. 9. The Government's arguments in support of its motion to dismiss and its arguments
in opposition to Mr. Poblete's motion to amend are essentially the same, as Mr. Poblete's
amended complaint merely adds details to factual allegations made in his original
complaint-except for adding toti and First Amendment claims against the Superior Court
of the District of Columbia, over which this Court lacks jurisdiction. Thus, for the same
reasons explained in Part I of this Opinion, the Government's motion to dismiss Mr.
Poblete's original complaint for lack of subject matter jurisdiction is GRANTED.

                                        Conclusion

       For the reasons stated above, Mr. Poblete's motion to amend his complaint is
DENIED and the Government's motion to dismiss is GRANTED. The Clerk of the Court
shall enter judgment accordingly. No costs.

       IT IS SO ORDERED.

                                                         ~~-uCL
                                                         THOMAS C. WHEELER
                                                         Judge




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