             In the United States Court of Federal Claims
                                          No. 20-0036C
                                              (Pro Se)
                           (Filed: April 21, 2020 | Not for Publication)

                                                 )
 ROBERT L. POOLE,                                )
                                                 )     Keywords: Pro Se; Subject-Matter
                        Plaintiff,               )     Jurisdiction; RCFC 12(b)(1); Unlawful
                                                 )     Imprisonment; Unjust Conviction and
        v.                                       )     Imprisonment; 28 U.S.C. § 1495
                                                 )
 THE UNITED STATES OF AMERICA,                   )
                                                 )
                        Defendant.               )
                                                 )


Robert L. Poole, Columbus, OH, pro se.

Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were L. Misha Preheim, Assistant Director,
Robert E. Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney General, for
Defendant.

                                     OPINION AND ORDER


KAPLAN, Judge.

        Plaintiff Robert L. Poole, proceeding pro se, filed a complaint in this court on January 13,
2020. Docket No. 1. On March 11, 2020, the government filed a motion to dismiss pursuant to
Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). Docket
No. 5. The government argues that Mr. Poole has failed to meet his burden to establish subject-
matter jurisdiction and that his claim should therefore be dismissed. Def.’s Mot. to Dismiss the
Compl. (“Def.’s Mot.”) at 1.

      For the reasons discussed below, the Court finds that it lacks subject-matter jurisdiction
over Mr. Poole’s complaint and, thus, the government’s motion to dismiss is GRANTED.

I.     Background

        Mr. Poole was convicted in a drug conspiracy case after a trial by jury in the United
States District Court for the Northern District of Ohio. Compl. at 1; see Jury Verdict, Bailey v.
United States, No. 3:06-cr-722, Docket No. 155 (N.D. Ohio Jan. 31, 2007). According to his
complaint, Mr. Poole was in prison from about March 13, 2006 until December 4, 2014 and was
on probation from December 4, 2014 until November 30, 2019. Compl. at 2.
         In his complaint, Mr. Poole alleges that the Assistant United States Attorney who
prosecuted his criminal case “did knowingly, willfully, deliberately and with malicious intent to
cause irreparable harm conspired with known and unknown employees of the Ohio Adult Parole
Authority, the Allen County, Ohio Drug Task Force and known and unknown others” to charge
him. Id. at 1. He further alleges that the government “did conspire with [his] defense counsel . . .
to assure inadequate representation to succeed in misrepresenting relied upon evidence” to secure
his conviction. Id. Mr. Poole also argues that the government “again abused the powers of the
United States Department of Justice” by ensuring that he served all five years of his probation.
Id. at 2. He seeks over $300 million in punitive damages for wrongful imprisonment from March
13, 2006 to November 30, 2019.

II.    Legal Standards

        In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, “inquire into jurisdictional facts” to determine whether it has
jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). It is well established
that 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). Nonetheless, even
pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Harris
v. United States, 113 Fed. Cl. 290, 292 (2013).

         The Tucker Act grants the United States Court of Federal Claims the power “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). It serves as a waiver of sovereign immunity and a jurisdictional
grant, but it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish
that “a separate source of substantive law . . . creates the right to money damages.” Id. (quoting
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part)); Rick’s
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must
look beyond the Tucker Act to identify a substantive source of law that creates the right to
recovery of money damages against the United States” (citation omitted)).

III.   The Government’s Motion

       The government has moved to dismiss the complaint pursuant to RCFC 12(b)(1) arguing
that Mr. Poole has failed to state the grounds for the Court’s jurisdiction. Def.’s Mot. at 1. In his
response to the government’s motion, Mr. Poole clarifies that he seeks damages pursuant to 28
U.S.C. § 1495, a claim over which the Court would possess jurisdiction if properly pled. Pl.’s
Mot. to Strike Def.’s Mot. to Dismiss (“Pl.’s Resp.”) at 2, Docket No. 9. 1


1
 The Court notes that Mr. Poole alleges “unlawful imprisonment,” Pl.’s Resp. at 1, though
28 U.S.C. § 1495 provides relief for “unjust conviction and imprisonment.” Construing Mr.

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        The government does not directly address Mr. Poole’s statutory claim. Rather, it argues
that Mr. Poole’s claim is actually one for “unlawful imprisonment,” a violation of the Fifth
Amendment over which this Court lacks jurisdiction. Def.’s Reply in Support of Its Mot. to
Dismiss the Compl. at 2, Docket No. 10 (citing Pl.’s Resp. at 1). The Court agrees with the
government that to the extent Mr. Poole alleges a Fifth Amendment due process violation or any
allegations of criminal conduct, it lacks jurisdiction to adjudicate those claims. See Upshaw v.
United States, 599 F. App’x 387, 388 (Fed. Cir. 2015) (noting that the Court of Federal Claims
lacks jurisdiction over allegations of criminal conduct); United States v. Connelly, 716 F.2d 882,
887 (Fed. Cir. 1983) (explaining that the Court of Federal Claims lacks jurisdiction over Fifth
Amendment due process claims); see also Taylor v. United States, No. 19-1353T, 2020 WL
983245, at *2 (Fed. Cl. Jan. 27, 2020) (citing Brown v. United States, 105 F.3d 621, 623 (Fed.
Cir. 1997); Burman v. United States, 75 Fed. Cl. 727, 729 (2007)) (explaining that damages
claims based on fraud and unlawful imprisonment sound in tort and are therefore beyond this
court’s jurisdiction).

       The Court does have jurisdiction to hear claims properly brought pursuant to 28
U.S.C. § 1495 for unjust conviction and imprisonment. See, e.g., Castro v. United States, 364 F.
App’x 619, 620 (Fed. Cir. 2010); Tucker v. United States, 142 Fed. Cl. 697, 716 n.4 (2019);
Abu-Shawish v. United States, 120 Fed. Cl. 812, 813 (2015).

        Mr. Poole has failed to allege facts sufficient to show that he is entitled to relief under
that provision. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07, 514 (2006); see also RCFC
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). Section 1495 of title 28 provides the Court of Federal Claims with
jurisdiction to “render judgment upon any claim for damages by any person unjustly convicted of
an offense against the United States and imprisoned.” However, a plaintiff bringing such claims
must satisfy the requirements of 28 U.S.C. § 2513. See Castro, 364 F. App’x at 620. That is, a
plaintiff “must 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).




Poole’s complaint liberally, the Court interprets his claim to be one for “unjust conviction and
imprisonment” pursuant to 28 U.S.C. § 1495.


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        Thus, in order for this Court to have jurisdiction, the plaintiff “must obtain a certificate of
innocence from the district court which states that not only was he not guilty of the crime of
conviction, but also that none of his acts related to the charged crime were other crimes.” Abu-
Shawish, 120 Fed. Cl. at 813; see also 28 U.S.C. § 2513(b). Mr. Poole has failed to allege or
otherwise demonstrate that he has obtained a certificate of innocence from the United States
District Court for the Northern District of Ohio or that his innocence has been otherwise
established. Thus, because Mr. Poole has not met the requirements of a claim for monetary relief
pursuant to 28 U.S.C. § 1495, the Court lacks jurisdiction over his complaint.

        Accordingly, the government’s motion to dismiss for lack of subject-matter jurisdiction is
GRANTED and Mr. Poole’s complaint is DISMISSED without prejudice. The Clerk shall
enter judgment accordingly. Each side shall bear its own costs.

       IT IS SO ORDERED.


                                                       Elaine D. Kaplan
                                                       ELAINE D. KAPLAN
                                                       Judge




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