ORIGINAL

3511 the ﬁlim’teh évtateg Qtuurt of erheral @Iaimg
No. 14-757L
FILED

(Filed: October 23, 2014)

CT 2 3 2014
(NOT TO BE PUBLISHED) 0
U.S. COURT OF
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EMANUEL MICHAEL, )
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Plaintiff, )
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v. )
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UNITED STATES, )
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Defendant. )
)

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Emanuel Michael, pro se, Decatur, Georgia.

Kristofor R. Swanson, Trial Attorney, Environment & Natural Resources Division,
United States Department of Justice, Washington, DC, for defendant. With him on the brief
was Sam Hirsch, Acting Assistant Attorney General, Environment & Natural Resources
Division, United States Department of Justice, Washington, DC.

OPINION AND ORDER
LETTOW, Judge.

On behalf of himself and others, including an entity styled the United Nuwaupian Nation
Government (“Nuwaupian Nation”), plaintiff Emanuel Michael ﬁled a pro se complaint in this
court on August 20, 2014 naming the Sheriff of Putnam County, Putnam County, the United
States Federal Bureau of Investigation, and unknown police agents as defendants. See Compl. at
1.1 On August 26, 2014, the court directed Mr. Michael “to show cause . . . why he should be
permitted to represent the other plaintiffs he names in the complaint.” Order to Show Cause,
ECF No. 6. The court acknowledges Mr. Michael’s response to its order, ﬁled September 19,
2014. See Response to Judge’s Order to Show Cause (“Pl.’s Show Cause Response”), ECF No.

1Other than himself, Mr. Michael named as plaintiffs the “United Nuwaupian Nation
Government[;] Yamassee Tribe of Native American[s;] Muscogee, Seminole Creek, Shushuni,

Washita Mound Builders[;] Through the several states[;] and Charter of the [U]nited States of
America, Inc.” Compl. at l.

9. For the reasons stated, the court ﬁnds that Mr. Michael lacks authority to appear on behalf of
the other parties named in the complaint.

Also pending before the court is Mr. Michael’s motion for a preliminary injunction and
application for a temporary restraining order, ﬁled August 20, 2014. See Prelim. Statement of
Actual Facts in Support of Pl.’s Motion for Prelim. Inj. & TRO (“Pl.’s Mot”), ECF No. 2.

Mr. Michael’s motion for injunctive relief is DENIED.

BACKGROUND

In 1993, the Nuwaupian Nation moved to a large tract of land located at 404 Shady Dale
Road in Eatonton, Putnam County, Georgia. Pl.’s Mot. at 8; Compl. at 22, Ex. L. at 8.
Mr. Michael submits that during the years of 1998 to 2000, defendants wrongfully regulated and
stopped construction activity on this property. See Compl. at 22-23; see also P1.’s Mot. at 1-2,
1 1-13.2 According to Mr. Michael, that interference bars the Nuwaupian Nation from having a
“interest in their property,” Pl.’s Mot. at 13, and amounts to “an irreparable violation of its
sovereignty, and threatens the [Nuwaupian] Nation’s right to self-government and economic
development,” id. at 18. Mr. Michael seeks injunctive relief to restrain defendants from
“enforcing local zoning laws[,] and other laws, rules, and regulations against [t]he [Nuwaupian]
Nation and [its] [p]roperty.” Id. at 3; see also Compl. at 25—29.3

 

 

 

2During this time, 404 Shady Dale Road was owned and operated by Dwight D. York,
President of the Nuwaupian Nation. Compl. at 6, ﬂ 9. Mr. York was convicted in 2003 of

(1) engaging in interstate transport of minors with the intent to commit unlawful sexual activity;
(2) unlawfully structuring cash transactions; and (3) conspiring under the Racketeer Inﬂuenced
and Corrupt Organizations Act. See United States v. York, 428 F.3d 1325 (11th Cir. 2005). The
United States consequently commenced a civil forfeiture action against the property based on
probable cause that Mr. York was using the land to commit violations of 18 U.S.C. § 2423(a)
(“Transportation of minors with intent to engage in criminal sexual activity”). Forfeiture Compl.
Count 2, 1m 2, 7, United States v. $3,107.90, et al., No. 5:03—cv—00236—HL (M.D. Ga. July 18,
2003). In 2007, that action culminated in a judgment that forfeited and vested “[a]ll right, title,
and interest” in 404 Shady Dale Road to the United States. Final Order of Forfeiture at 5, United
States v. $3,107. 90, et al., No. 5:03-cv—00236-HL (M.D. Ga. Sept. 24, 2007). The government
avers that “upon information and belief, the United States subsequently sold the property.”
United States’ Opp’n to Pl.’s Mot. for Prelim. Inj. & TRO (“Def’s Opp’n”) at 3, ECF No. 7.

3 Mr. Michael advances the proposition that, by enforcing local zoning laws from 1998 to
2000, defendants committed irreparable harm. See P1.’s Mot. at 15-17; see also Response to
United States’ Opp’n to Pl.’s Mot. for Prelim. Inj. & TRO (“P1.’s Inj. Relief Response”) at 2,
ECF No. 8. Mr. Michael misconstrues the central tenet behind injunctions; the purpose “is not to
remedy past harm but to protect plaintiffs from irreparable injury that will surely result without
their issuance.” Schrier v. University ofColo., 427 F.3d 1253, 1267 (10th Cir. 2005) (emphasis
added) (citing Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)); see also
Apple, Inc. v. Samsung Electronics Co, 678 F.3d 1314, 1334 (Fed. Cir. 2012) (“The purpose of
injunctive relief is to prevent future harm.”) (quoting 13 James Wm. Moore, et al., Moore ’s
Federal Practice § 65.02 [2] (3d ed. 2011)). Indeed, to demonstrate irreparable harm that
justiﬁes injunctive relief, the party must show “immediate and irreparable injury.” Cohen Fin.

2

ANALYSIS
A. Order to Show Cause

Pursuant to Rule 83.1(a)(3) of the Court of Federal Claims (“RCFC”), a pro se plaintiff
may only represent “oneself or a member of one’s immediate family, but may not represent a
corporation, an entity, or any other person in any proceeding before this court.” RCFC
83.1(a)(3). Courts have permitted pro se representation of an Indian tribe only where the federal
government had previously acknowledged the tribe as a sovereign entity. Compare F raass
Survival Sys, Inc. v. Absentee Shawnee Econ. Dev. Auth, 817 F. Supp. 7, 10 (S.D.N.Y. 1993)
(permitting an agency of the Shawnee Tribal Government to represent the tribe pro se due to the
“tribe’s status [as] a distinctive combination of sovereignty and dependency”), with Cherokee of
Lawrence Cnty., Tenn. v. United States, 2006 WL 5668261, at *2 (Fed. Cl. Sept. 1, 2006)
(prohibiting pro se representation of the Cherokee of Lawrence because the group was “not
acknowledged to be an Indian tribe by the federal government”); see also Fast Horse v. United
States, 101 Fed. C1. 544, 548 (2011).

Mr. Michael represents that he is the “Minister of Justice” and “Attorney General” of the
Nuwaupian Nation, Pl.’s Show Cause Response at 2, with plenary power because its leader,
Mr. York, is “incarcerated and is not in [a] position to fully exercise his Tribal or Presidential
duties,” id. at 3. Regardless of Mr. Michael’s position or authority with and in the Nuwaupian
Nation, pro se representation of the Nation is prohibited under RCFC 83.1(a)(3) because the
group has not been federally acknowledged as a sovereign Indian tribe. See Indian Entities
Recognized and Eligible to Receive Services from the United State Bureau of Indian Affairs, 79
Fed. Reg. 4,748, 4,749-52 (Jan. 29, 2014) (listing the entities that the federal government
recognizes as Indian tribes); see also Def.’s Opp’n at 2 n.1.4 Accordingly, Mr. Michael lacks
authority to represent the Nuwaupian Nation or the other plaintiffs named in the complaint; he
may, however, bring a claim on behalf of himself. See RCFC 83.1(a)(3).

.____.. -_ _ ——_ _

Servs., Inc. v. United States, 110 Fed. Cl. 267, 288 (2013) (quoting US. Ass ’n oflmporters of
Textiles & Apparel v. United States, 413 F.3d 1344, 1346 (Fed. Cir. 2005)). Defendant’s actions
in halting construction activity at 404 Shady Dale Road occurred over 14 years ago. Pl.’s Mot. at
1-2, 1 1-13. Moreover, neither Mr. Michael nor other members of the Nuwaupian Nation now
hold title or interest in 404 Shady Dale Road. See supra, at 2 n.2..

 

4In 1999 the Nuwaupian Nation, then calling itself the Yamassee Native American Moors
of the Creek Nation, see Pl.’s Mot. at 7, ﬁled a “letter of intent to petition for acknowledgment
by the Secretary of the Interior that the group exists as an Indian tribe.” Receipt of Petitions for
Federal Acknowledgment of Existence as an Indian Tribe, 64 Fed. Reg. 67,585, (Dec. 2, 1999).
After filing its letter of intent, the Nuwaupian Nation was required to submit “a documented
petition” demonstrating that the group met the requirements for acknowledgement. See
Procedures for Establishing that an American Indian Group Exists as an Indian Tribe, 25 C.F.R.
§§ 83.4-10 (promulgated Feb. 25, 1994). The records indicate that the Nuwaupian Nation did
not submit such petition. See Compl. Ex. 0, at 1 (Letter from R. Lee Fleming to Mr. Michael
(Dec. 20, 2013)) (advising Mr. Michael that as of December 16, 2003, the Ofﬁce of Federal
Acknowledgement “had not received anything from the petitioner beyond the group’s letter of
intent”); see also Def.’s Opp’n. at 2 n.1.

B. Injunctive Relief

The standards for obtaining a temporary restraining order are indistinguishable from
those that must be met before issuing a preliminary injunction. See Bilﬁnger Berger AG Sede
Secondaria Italiana v. United States, 94 Fed. Cl. 389, 391 (2010). In both instances, the movant
has the burden of showing: (1) likelihood of success on the merits; (2) irreparable harm if the
relief is not granted; (3) that the hardship it will suffer without injunctive relief outweighs the
harm to the government and to third parties; and (4) that the grant of injunctive relief is not
contrary to public interests. Sciele Pharma Inc. v. Lupin Ltd, 684 F.3d 1253, 1259 (Fed. Cir.
2012); see also Mazarek v. Armstrong, 520 US. 968, 972 (1997).

Mr. Michael cannot show a likelihood of success on the merits because the court’s
equitable authority does not encompass his claims. “The Court of Federal Claims lacks the
ability to award general equitable relief.” Republic of New Morocco v. United States, 98 Fed. Cl;-
463, 469 (2011); see also LegalAid Soc. ofN. Y. v. United States, 92 Fed. Cl. 285, 301 (2010).
Rather, the court exercises equitable authority under speciﬁc statutory grants, see, e.g., 26 U.SC.
§ 6331(i)(4)(B); 28 U.S.C. § 1491(b)(2); 28 U.S.C. § 1507, and more generally under the limited
circumstances set forth in 28 U.S.C. § 1491(a)(2) where such relief is “‘tied and subordinate to a
moneyjudgment,’” James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting Austin 12.
United States, 206 Ct. Cl. 719, 723 (1975)), see also Flowers v. United States, 321 F. App’x
928, 933 (Fed. Cir. 2008) (afﬁrming the Court of Federal Claim’s holding that the “absence of
money damages in this case divests the court of its ability to grant equitable relief ’).

The court cannot afford Mr. Michael the relief he seeks because his claims are neither
brought within a speciﬁc statutory authorization for equitable remedies nor tied to a money
judgment. Mr. Michael relies on the Equal Protection Clause of the Fourteenth Amendment,
Pl.’s Mot. at 17—18, which “do[es] not mandate payment of money by the government.” LeBlanc
v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). Additionally, he desultorily references the
Fifth Amendment takings clause, but fails to request any monetary compensation resulting from
a regulatory or physical taking of the Nuwaupian Nation’s property. See Pl.’s Inj. Relief Resp. at
2, 4; see also Pl.’s Mot. at 18 (“[T]he [Nuwaupian] [N]ation cannot be compensated monetarily
for defendants’ conduct”). Finally, Mr. Michael’s attempt to obtain independent injunctive
relief under the Declaratory Judgment Act, Pl.’s Mot. at 21, is ineffective because that statute is
not applicable to this court. Nat’l Air Traffic Controllers Ass ’11 v. United States, 160 F.3d 714,
716 (Fed. Cir. 1998) (“The Court of Federal Claims has never been granted general authority to
issue declaratory judgments”). Because the court is without authority to grant equitable relief
regarding Mr. Michael’s claims, he cannot demonstrate a likelihood of success on the merits.

CONCLUSION

Mr. Michael is prohibited from proceeding pro se on behalf of the parties named as
plaintiffs in the complaint other than himself. Accordingly, the other named plaintiffs are
dismissed from this action. The court DENIES Mr. Michael’s motion for a preliminary
injunction and application for a temporary restraining order.

It is so ORDERED.

 

 

 

 

 

Charles F. Lettow '
Judge

