                                                                                       ORIGINAT
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                                                                                                              No. 15-57C                                     FILED
                                                                                                  (Filed: May 26.2015)
                                                                                                                                                            MAY 2   6   2015
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                                                                                                                                                          U.S. COURTOF
                                                                                                                             *                           FEDEHALC|jIIB
EARNEST GIBSON IV,                                                                                                           *
                                                                                                                             *
                                                                     Dlaintiff                                               t<
                                                                                                                                  Rule l2(b)(1) Motion to Dismiss;
                                                                                                                             {.   Subject-Matter Jurisdiction; Pro Se
                                                                                                                             *    Plaintiff; Claim for Declaratory and
                                                                                                                             *    Injunctive Relief; Medicare Fraud
THE LINITED STATES,                                                                                                               Scheme.


                                                                     Defendant.

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Earnest Gibson IV, Houston, Texas, pro se Plaintiff.

Anand R. Sambhwani, Trial Attomey, with whom were Beniamin Mizer, Assistant
Attorney General, Robert E. Kirschman, -/r. , Director, and, Claudia Burke, Assistant
Director, commercial Litigation Branch, civil Division, U.s. Department of Justice,
Washington, D.C., for Defendant.

                                                                                               OPINIONAND ORDER

WHEELER, Judge.

       Piaintiff Eamest Gibson IV ("Mr. Gibson") brings this complaint concerning his
indictment in federal district court for violations of several criminal statutes as part of his
involvement in a $158 million Medicare fiaud scheme. Mr. Gibson seeks declaratory and
injunctive relieffor violations of his constitutional rights in connection with his indictment
in the Medicare fraud scheme for which he was convicted in federal district court. On
March 20. 2015, the Govemment filed a motion to dismiss Mr. Gibson's complaint for lack
of subject matter jurisdiction alleging that Mr. Gibson does not seek monetary relief from
this Court or cite to a money-mandating source of law that would give the Court jurisdiction
under the Tucker Act. For the reasons set forth below, the Government's motion to dismiss
is GRANTED.
                                        Factual Background

       In 2012, the Government charged Mr. Gibson, among others,r as a co-conspirator
in a $ 15 8 million Medicare fraud scheme in the United states District court for the
southem District of Texas. See Indictment, at 6, 8, Dkt. No. 1-2. The Medicare fraud
scheme involved "false claims [that] were submitted for Medicare reimbursement and in
which kickbacks were given to members of the conspiracy in exchange for referral of
Medicare beneficiaries for whom fraudulent claims were submitted." See Def.'s Mot. to
Dismiss at 1, Dkt. No. 8. As an alleged co-conspirator in the fraud scheme, Mr. Gibson
was charged with Conspiracy to Commit Health Care Fraud, 18 U.S.C. $ 1349, Conspiracy
to Defraud the United States and to Pay and Receive Health Care Kickbacks, $ 37i, nine
counts ofviolations of the Anti-Kickback Statute, 18 U.S.C. $2 and42 U.S.C. $$ 1320(a)-
7b(b), and conspiracy to commit Laundering of Monetary Instruments, 18 U.S.C. $$ 1347,
 r 9s6(h).


       Following a jury trial, Mr. Gibson was found guilty of the above charged offenses
on october 21,2014. See Verdict, united States v. Gibson, No. 12-600 (S.D. Tex. Oct.
21,2014),ECFNo.331. OnJanuary2l,20l5,Mr.Gibsoncommencedthisactioninthe
court seeking ,'declaratory relief, or in the alternative, injunctive relief," arguing that the
indictment "was constitutionally infirm." See Pl''s Compl. at 1, 11-13, Dkt' No' l The
Govemment moved to dismiss Mr. Gibson's case for lack of subj ect matter jurisdiction on
March 20,2015.
                                              Discussion

   I.       Standards for Decision

        Before the court can hear the merits of a case, 'Jurisdiction must be established."
Rippa v. United States, 79 Fed. CL.639,641 (2007). Thoughpro se litigants are generally
givetr more latitude in their pleadings, this does not relieve a pro se litigant from
establishing a court's jurisdiction by a preponderance of the evidence. Moore v. United
States, 94 Fed. Cl. 456,460 (2010). Subject matterjurisdiction may be challenged at any
time by the parties or by the Covrt, sua sponte. Id. When deciding a motion to dismiss for
lack ofsubject matter jurisdiction, the court "must assume that all undisputed facts alleged
in the complaint are true and . . . draw all reasonable inferences in the non-movant's favor."
Jefferson v. United States, 104 Fed. Cl. 81, 86 (2012).

     The Tucker Act provides the court with jurisdiction over "claims for money
damages against the united states founded either upon the constitution, or any act of

I Mr. Gibson's father, Eamest Gibson III, was also indicted as a co-conspirator in the Medicare fraud
scheme. He also filed suit in this Court, asserting identical claims to his son. See Pl.'s Compl., Earnest
Gibson III v. United States, No. l5-56C (Fed. Cl. Jan. 21,2015), ECF No. I
congress or any regulation of an executive department, of 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. $ 1a91(a)(1); Fisher v. United States ' 402 F '3d 1167, 1172
(Fed. Cir. 2005). However, the Tucker Act itself "does not cleate a substantive cause of
acrion.,, Fisher, 402 F.3d at ll'72. Instead, a "plaintiff must identiff a separate source of
substantive law that creates the right to money damages." Id.; see also United States v.
Mirchell, 463 U.S. 206, 217 (1983) C'A statute is money-mandating if it can fairly be
interpreted as mandating compensation by the Federal Govemment for the damages
sustained"). This means "the other source of law must be reasonably amenable to the
reading that it mandates a right of recovery in damages'" Rippa, 79 Fed, Cl' at642.

   il.    Claims for Declaratory Judgment and Iniunctive Relief

        The court does not have jurisdiction over Mr. Gibson's claims for declaratory and
injunctive relief. Mr. Gibson is not seeking to recover money damages. That fact alone
provides the Court with the basis to dismiss his complaint under the Tucker Act. See Todd
u. united stut.s, 386 F.3d 1091, 1095 (Fed. cir. 2004) ("Absent a claim for presently due
money damages against the United states, the court of Federal claims does not have
jurisdiction under the Tucker Act").

        Even if Mr. Gibson's complaint could be construed as seeking money damages,
none of the constitutional and statutory provisions Mr. Gibson cited in his complaint
provides this court with jurisdiction. Mr. Gibson identifies the Sixth, Ninth, Tenth, and
Thirteenth Amendments to the Constitution as well as Article III, Section 2 of the
Constitution, the Fifth Amendment Due Process Clause, and 42 U.S.C. $ 1981 as the bases
for his claims. These constitutional and statutory provisions, however, ale not money
mandaring. See. e.g., United States v. connolly,716F.2d 882,887-88 (Fed. Cir. 1983)
(holding the Court has no jurisdiction under the First Amendment); Gable v. United States,
106 Fed. Cl, 294.298 (2012) ("Sixth Amendment is not money-mandating"); Mendez-
cardenas v. united States, 88 Fed. Cl. 162, 167 (2009) ("this court may not hear claims
under Article III, Section 2"); Johnson v. United States, 79 Fed' Cl. 7 69 ' 714 (2001) ("This
court, however, cannot entertain claims brought under the Thiteenth Amendment because
it does not mandate the payment of money damages for its violation"); Fry v. united states,
72Fed. Cl. 500, 507 (2006) (.'the Due Process Clause of the Fifth Amendment [is] not
money mandating. Likewise, the Ninth and Tenth Amendment are not money
mandating,'). Similarly, this court does not have jurisdiction under the civil Rights Act,
42 U.S.C. g 1981, as jurisdiction under the Act resides exclusively in the district courts.
See Marlin v. United States, 63 Fed. CL.475,476 (2005).

      Finally, the Court does not have jurisdiction over Mr. Gibson's complaint based
uDon anv of the five sources of law that Mr. Gibson newly raised in his response to the
Govemment's motion to dismiss. Mr. Gibson cited to 28 U.S.C. $ 1331,28 U.S.C. $ 1491,
28 U.S.C. $ 1495, 5 U.S.C. $ 706, and Federal Rule of Civil Procedure (.'FRCP') 57' See
P1.'sResp. at4-7,Dkt.No.6. But like the sources of substantive law that Mr. Gibson cited
in his complaint, none of these sources of law is money-mandating either'

         First,28 U.S.C. g 1331 only establishes the jurisdiction ofthe federal district courts.
Hall v. United States,69 Fed. Cl. 51,56 (2005) ("The United States Court of Federal
Claims . . . is not a United States District Court and, therefore, does not have jurisdiction
over claims arising under 28 U.S.C. $ 1 33 1). Second, though 28 U.S.C. $ 1491 establishes
the Court's jurisdiction, it only confers jurisdiction where a substantive right exists that
mandates the payment of money by the Government. Plaintiff must still identi$ a separate
money-mandating source of substantive law, which Mr. Gibson has not. See Fisher, 402
F.3d ;t 1172. Third, 28 U.S.C. g 1495 does not apply because Mr. Gibson has not alleged
that his conviction was reversed or set aside nor has he attached a pardon or certificate of
innocence that would give this court jurisdiction' S)'kes v' United States' 105 Fed' cl'
 231,234 (2012). Fourth, 5 U.S.C. $ 706 is the standald of review the Court applies to bid
protest cases; it is not a money-mandating source of law. Finally, FRQP 57 is not a rule of
ihis Court and therefore is inapplicable to Mr. Gibson's complaint. Even if Mr. Gibson
had cited to Rule 57 of the Rules of the United States Court of Federal Claims, it would
 still not provide the Court with jurisdiction because Mr. Gibson is not seeking a declaratory
judgment in connection with a procurement, see 28 U.S.C. $ 1491, or a declaratory
judgment in connection with 23 U.S.C. g 1507 (giving the Court jurisdiction under Internal
 Reln1nu" Code Section 7428 pertaining to "status and classifications of organizations under
 section 501(cX3)" of the Code). Rather, Mr. Gibson is seeking a declaratory judgment in
 connection with his indictment and conviction in the Medicare fraud scheme, which the
 Court cannot provide. Pl.'s Compl. at 1.

                                          Conclusion

       For the foregoing reasons, the Government's motion to dismiss is GRANTED.

       IT IS SO ORDERED.


                                                   THOMAS C. WHEELER
                                                    Judge




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