                                           ORIGINAL
     3Jn tbe Wniteb $>tates Qtourt of jfeberal Qtlaims
                                               No. 15-548C
                                        Filed: November 13, 2015

****************************************

PHILLIP L. CROWDER,
                                                    *                              FILED
                                                    *
                                                    *                             NOV f 3 2015
           Plaintiff, prose,                        *                           U.S. COURT OF
                                                    *                          FEDERAL CLAIMS
v.                                                  *
                                                    *
THE UNITED STATES,                                  *
                                                    *
           Defendant.                               *
                                                    *
****************************************
Phillip L. Crowder, Raleigh, North Carolina, prose.

Richard P. Schroeder, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.

                         MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I.         RELEVANT FACTUAL BACKGROUND. 1

        On December 7, 2006, Phillip L. Crowder pleaded guilty to a violation of 18 U.S.C. §
922(g), 2 before the United States District Court for the Eastern District of North Carolina ("District

           1
          The relevant facts were derived from: Plaintiffs May 28, 2015 Complaint ("Comp!.");
Plaintiffs July 20, 2015 "Amend[ed] Order" that this court construes to be Plaintiff's Amended
Complaint ("Am. Comp!."); and the Appendix to the Government's July 30, 2015 Cross-Motion
To Dismiss ("Gov't App. Al-A9"). The court may consider evidence outside the pleadings when
jurisdictional facts are in dispute. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir.
1999) ("Fact-finding is proper when considering a motion to dismiss where the jurisdictional facts
in the complaint . . . are challenged."). As such, consideration of the Appendix to the
Government's July 30, 2015 Cross-Motion To Dismiss is appropriate, because the documents
contained therein provide the factual basis for whether the court has jurisdiction.
2
     Section 922(g), in relevant part, provides:

           It shall be unlawful for any person ... who has been convicted in any court of, a
           crime punishable by imprisonment for a term exceeding one year ... to ship or
Court"). Gov't App. A4. On March 20, 2007, Mr. Crowder was sentenced to 72 months'
imprisonment, followed by 36 months' supervised release. Comp!. at 1.

        On August 8, 2013, the District Court vacated Mr. Crowder's conviction, because it was
based on prior convictions that no longer qualified as predicate offenses, in light of the United
States Court of Appeal for the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). Gov't App. A4.

        On May 20, 2014, Mr. Crowder filed a Complaint with the District Court, seeking to
recover monetary damages for the alleged seven years that he had been "under [flederal
jurisdiction, ... including supervised release" before the vacatur. 3 Comp!. at 1. The District Court
found that Mr. Crowder's claim was controlled by 28 U.S.C. §§ 1495 and 2513 and should have
been filed in the United States Court of Federal Claims with a requisite certificate of actual
innocence. See Crowder v. United States, No. 5:14-CT-3133-F, 2014 WL 7011005, at *2
(E.D.N.C. Dec. 11, 2014). The District Court therefore transferred Mr. Crowder's Complaint to
the docket of his criminal case as a Motion For The Issuance Of A Certificate Of Actual Innocence.
Id. at *3.

        On February 3, 2015, the District Court denied Mr. Crowder's Motion For The Issuance
Of A Certificate Of Actual Innocence. Gov't App. A7. The District Court held that even though
Mr. Crowder's possession of a firearm did not violate the federal law, his prior North Carolina
felony convictions made his possession of a firearm a violation of North Carolina law. Gov't App.
A6. As such, the District Court held that Mr. Crowder failed to demonstrate actual innocence.
Gov't App. A6.

II.    PROCEDURAL HISTORY.

        On May 28, 2015, Phillip L. Crowder ("Plaintiff") filed a Complaint ("Comp!.") in the
United States Court of Federal Claims, seeking $350,000 for "false arrest, false indictment, unjust
and wrongful conviction, (and violation] of[his] [c]onstitutional rights as a citizen," and $350,000
for "injuries, surgical operations, [and] pain and suffering enlisting indefinate [sic] physical
paralysis, etc." Comp!. at 2. The May 28, 2015 Complaint seeks relief for "incident, altercation,
mental anguish, emotional duress, slavery and servitude, defammation [sic] of character, seizure
of [his] person and property, and deprivation endured during imprisonment and unconstitution[al]
circumstances." Comp!. at 2. The May 28, 2015 Complaint also proposes a settlement fee of



       transport in interstate or foreign commerce, or possess in or affecting commerce,
       any firearm or ammunition; or to receive any firearm or ammunition which has
       been shipped or transported in interstate or foreign commerce.

18 U.S.C § 922(g).
        3
        But see Crowder v. United States, No. 14-CT-3133-F, 2014 WL 7011005, at *2 (E.D.N.C.
Dec. 11, 2014) ("Before his conviction was vacated, [Mr. Crowder] served five years and three
months in federal prison.") (internal citation and quotation marks omitted).



                                                  2
$350,000. That same day, Plaintiff also filed a Motion For Leave To Proceed In Forma Pauperis
that the court granted on September 10, 2015.

        On June 8, 2015, Plaintiff submitted a letter to the court requesting production of certain
statutes for his review. The court denied Plaintiffs request on June 10, 2015, because the letter
was not a proper motion under Rule 7(b) of the Rules of the United States Court of Federal Claims
("RCFC"). 4

         On July 20, 2015, Plaintiff filed an "Amend[ed] Order" that this court construes to be an
Amended Complaint. The Amended Complaint increased Plaintiffs proposed settlement fee to
$400,000, and explained that the May 28, 2015 Complaint should be construed as a claim for
unjust conviction and wrongful imprisonment, not as a commercial claim under 28 U.S.C. §
1491(b). Additionally, a document entitled "Order," attached to the July 20, 2015 Amended
Complaint, appears to subpoena the Government to produce documents. That same day, Plaintiff
also filed a Motion For Damages For Unjust Conviction.

       On July 27, 2015, the Government objected to Plaintiffs subpoena.

       On July 30, 2015, the Government filed a Response ("Gov't Resp.") to Plaintiffs July 20,
2015 Motion For Damages For Unjust Conviction and filed a Cross-Motion To Dismiss ("Gov't
Mot."), pursuant to RCFC 12(b)(l) and 12(b)(6). Plaintiff did not file a Response.

        On September 28, 2015, the court issued an Order, requiring Plaintiff to show cause why
this case should not be dismissed in light of his failure to prosecute his case under RCFC 4l(b). 5
Plaintiff did not respond to the Show Cause Order.

III.   DISCUSSION.

       A.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.
§ 1491, "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, however, is "a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal
Claims] whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976).



       4
         RCFC 7(b), in relevant part, provides, "A request for a court order must be made by
motion.... The motion must: (A) be in writing unless made during a hearing or trial; (B) state
with particularity the grounds for seeking the order; and (C) state the relief sought." RCFC 7(b).
       5
         RCFC 41 (b ), in relevant part, provides, "If the plaintiff fails to prosecute or to comply
with these rules or a court order, the court may dismiss on its own motion[.]" RCFC 4l(b).



                                                 3
        To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
identify a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane) ("The
Tucker Act ... does not create a substantive cause of action; ... a plaintiff must identify a separate
source of substantive law that creates the right to money damages. . . . [T]hat source must be
'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
Government[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
in question .... [the plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").

       B.      Standard Of Review For Pro Se Litigants.

        Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that prose
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. Ct. 456,
468 (1969). Nevertheless, while the court may excuse ambiguities in a prose plaintiffs complaint,
the court "does not excuse [a complaint's] failures." Henke v. United States, 60 F.3d 795, 799
(Fed. Cir. 1995).

        C.     Standard Of Review Under RCFC 12(b)(l).

        A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(l) motion[.]"
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(I) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (I) lack of subject-matter jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court "a
court must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all
reasonable inferences in favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).

        D.     The Government's July 30, 2015 Cross-Motion To Dismiss.

                1.     The Government's Argument.

        The Government argues that this court does not have jurisdiction to adjudicate the claims
alleged in the May 28, 2015 Complaint. Gov't Mot. at 1. Specifically, the Government contends
that Plaintiffs unjust conviction and imprisonment claim should be dismissed, because Plaintiff
"has failed to satisfy the requirements of section 2513, including obtaining a certificate of



                                                  4
innocence." Gov't Mot. at 9. In addition, the Government urges this court to dismiss other
constitutional claims, because the court has jurisdiction to "entertain only those constitutional
claims that 'require payment of money damages for the violation."' Gov't Mot. at I 0 (quoting
Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987)). In addition, the Government
contends that Plaintiffs various other tort claims should be dismissed, because the court "does not
possess Tucker Act jurisdiction to entertain tort claims." Gov't Mot. at 11.

       In the alternative, the Government argues that some of Plaintiffs claims can be dismissed
pursuant to RCFC 12(b)(6). Specifically, the Government argues that this court should dismiss
the wrongful conviction and imprisonment claim due to Plaintiffs "inability to allege the elements
of section 2513." Gov 't Mot. at 13. Likewise, the constitutional takings claim should be
dismissed, because "it is clear from the complaint that any property seized by the Government was
seized pursuant to the Government's police power in connection with the criminal law matters."
Gov't Mot. at 14.

               2.      Plaintiffs Response.

       Plaintiff did not file a Response to the Government's July 30, 2015 Cross-Motion To
Dismiss.

               3.      The Court's Resolution.

       "[J)urisdiction under the Tucker Act requires the litigant to identify a substantive right for
money damages against the United States separate from the Tucker Act[.]" Todd, 386 F.3d at
1094. In determining whether Plaintiff properly identified a separate substantive right for money
damages, the court is cognizant of its obligation to construe liberally pro se plaintiffs' pleadings.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that a "prose document is to be liberally
construed"). But, the court "does not excuse [a complaint's] failures." Henke, 60 F.3d at 799.

        The May 28, 2015 Complaint alleges three claims: (1) wrongful conviction and
imprisonment; (2) injury by the Government's alleged tortious acts; 6 and (3) violation of Plaintiffs
constitutional rights, including his right to property. For the reasons set forth below, this court
finds that Plaintiff has failed to meet the burden of establishing that this court has jurisdiction over
his claims.

        First, Plaintiff has not demonstrated that his conviction and imprisonment were unjust, so
as to bring his claim within the realm of this court's jurisdiction. Although the court has
jurisdiction "to render judgment upon any claim for damages by any person unjustly convicted of
an offense against the United States and imprisoned," 28 U.S.C. § 1495, its ability to adjudicate
this claim is limited by 28 U.S.C. § 2513(a).



        6
          The May 28, 2015 Complaint seeks relief for "false arrest" and "injuries, surgical
operations, pain and suffering enlisting indefinate [sic) physical paralysis" and "incident,
alternation, mental anguish, emotional duress ... defammation [sic) of character, seizure of [his)
person ... and deprivation during imprisonment[.]" Comp!. at 2.



                                                   5
       Section 2513(a) of the Unjust Conviction Act provides:

       Any person suing under section 1495 of this title must [also] allege and prove that:

       ( 1) His conviction has been reversed or set aside on the ground that he is not guilty
            of the offense of which he was convicted, or on new trial or rehearing he was
            found not guilty of such offense, as appears from the record or certificate of the
            court setting aside or reversing such conviction, or that he has been pardoned
            upon the stated ground of innocence and unjust conviction and

       (2) He did not commit any of the acts charged or his acts, deeds, or omissions in
           connection with such charge constituted no offense against the United States,
           or any State, Territory or the District of Columbia, and he did not by misconduct
           or neglect cause or bring about his own prosecution.

28 U.S.C. § 2513(a).

        In this case, neither the May 28, 2015 Complaint, the July 20, 2015 Amended Complaint
nor the July 20, 2015 Motion For Default Judgment "allege[s] or prove[s]" any of the statutory
requirements, i.e., that Plaintiff received a certificate of innocence or was "pardoned upon the
stated ground of innocence," and that "[h]e did not commit any of the acts charged." 28 U.S.C. §
2513(a). This is because the convicting District Court denied Plaintiffs Motion For The Issuance
Of A Certificate Of Actual Innocence and expressly found that "[Plaintiff could not] demonstrate
that he [was] truly innocent of any offense." Gov't App. A6. As such, the court does not have
jurisdiction to adjudicate Plaintiffs unjust conviction and imprisonment claim.

       Second, Plaintiffs tort claims do not fall within the purview of this court's jurisdiction.
Tort claims are expressly excluded from the provisions of the Tucker Act. See 28 U.S.C. §
149l(a)(l); see also Rick's Mushroom Serv., Inc. v. United States, 521F.3d1338, 1343 (Fed. Cir.
2008) ("The plain language of the Tucker Act excludes from the [United States] Court of Federal
Claims jurisdiction claims sounding in tort."). Therefore, the court does not have jurisdiction to
adjudicate claims relating to the Government's alleged tortious acts.

        Finally, the court cannot adjudicate the claims regarding violations of Plaintiffs
constitutional rights, including his right to property, because neither the May 28, 2015 Complaint
nor the July 20, 2015 Amended Complaint state more than bare allegations that Plaintiffs
constitutional rights were violated, i.e., Plaintiff does not identify any constitutional provisions
under which the court can adjudicate his claims. Moreover, to the extent that the claim relating to
seizure of Plaintiffs property can be construed as a violation of his Fifth Amendment right to
property, Plaintiff does not assert that his property was taken for public use, rather than pursuant
to the criminal laws. See A &D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1150 (Fed. Cir.
2014) ("[The Takings Clause] guarantees just compensation whenever private property is 'taken'
for public use."); see also Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1331 9 Fed. Cir.
2006) ("When property has been seized pursuant to the criminal laws[,] ... such deprivations are
not 'takings' for which the owner is entitled to compensation."). As such, Plaintiffs constitutional
claims are frivolous and carmot be adjudicated by this court. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998) ("Dismissal for lack of


                                                  6
subject-matter jurisdiction because of the inadequacy of the federal claim is proper ... when the
claim is so insubstantial [and] implausible .... ") (internal citations and quotation marks omitted);
see also Moden v. United States, 404 F.3d 1335, 1340--41 (Fed. Cir. 2005) (holding that dismissal
for lack of subject-matter jurisdiction is permissible where a claimant asserts a frivolous claim).

IV.    CONCLUSION.

        For the reasons discussed herein, the Government's July 30, 2015 Motion to Dismiss is
granted. See RCFC 12(b)(l), 12(b)(6). The Clerk is directed to dismiss Plaintiffs May 28, 2015
Complaint and July 20, 2015 Amended Complaint. As such, all remaining pending motions in
this case are denied as moot.

       IT IS SO ORDERED.


                                                      SUSA:
                                                      Judge




                                                  7
