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                                         No. 18-1806C
                                   (Filed: January 22, 2019)


                                            )
 E. VONDRAKE,                               )
                                            )      Pro se; Sua Sponte Dismissal; Lack of
               Pro Se Plaintiff,            )      Subject Matter Jurisdiction.
                                            )
 v.                                         )
                                            )
 THE UNITED STATES,                         )
                                            )
     Defendant.                             )
_________ )


             ORDER OF DISMISSAL FOR LACK OF IDRISDICTION

       Plaintiff Edward Vondrake, proceedingpro se, filed the instant complaint against

the United States ("the government") alleging violations of the Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendments of the United States Constitution. Additionally, Mr.

Vondrake also alleges that he was unjustly convicted, suffered discriminatory treatment

in violation of 42 U.S.C. §§ 1981-86, and was the victim of intentional infliction of

emotional distress. All ofMr. Vondrake's allegations arise from his May 30, 1990 arrest

by the United States Secret Service ("Secret Service") after attempting to deposit money

at a bank in Virginia, his imprisonment while awaiting trial, and his August 14, 1990

guilty plea where he admitted to violating 18 U.S.C. § 1028(a)(l) by producing false

identification cards when attempting to deposit money at a bank in Virginia.



                                                               7017 262D   DD □□   7637 4761
       This is the second complaint Mr. Vondrake has filed with this court based on the

same allegations. See Drake v. United States, No. l 7-581C, 2018 WL 1613869 (Fed. Cl.

April 3, 2018). The court dismissed Mr. Vondrake's initial complaint for lack of subject

matter jurisdiction because his claims arose more than six years prior to the filing of his

complaint and thus were barred by the six-year statute of limitations set forth in 28

u.s.c. § 2501.
       In addition to reciting the same allegation as he made in his earlier 2018

complaint, Mr. Vondrake alleges in this complaint that his case falls within the statute of

limitations in 28 U.S.C. § 250 I because he suffers a legal disability under the provision

which states that a complaint brought by "a person under legal disability ... at the time

the claim accrues may be filed within three years after the disability ceases." Mr.

Vondrake alleges that he suffers from memory loss and other brain damage as a result of

the torture he allegedly endured while imprisoned while awaiting trial in 1990. Because

Mr. Vondrake claims his disability in any case is ongoing, he asserts that his claims are

timely under the§ 2501 exception noted.

       For purposes of this order, the court has assumed Mr. Vondrake's legal disability

allegations are sufficient to satisfy the exception in 28 U.S.C. § 2501. However, Mr.

Vondrake's case must be dismissed in any case because this court does not have subject

matter jurisdiction over any of his constitutional or statutory claims. Accordingly, under




                                              2
Rule 12(h)(3) 1 of the Rules of the United States Court of Federal Claims Mr. Vondrake's

complaint is DISMISSED.

         The jurisdiction of this court is set forth in the Tucker Act, which grants the court

jurisdiction to hear claims against the United States founded upon "any Act of Congress

or any regulation of an executive department ... or for liquidated or unliquidated

damages in cases not sounding in tort." 28 U.S.C. § 149l(a)(l). However, because the

Tucker Act "does not create any substantive right enforceable against the United States

for money damages," a plaintiff must also rely on a relevant money-mandating federal

statute, regulation, or provision of the Constitution to establish jurisdiction. United States

v. Testan, 424 U.S. 392, 398 (1976).

         "Courts have an independent obligation to determine whether subject-matter

jurisdiction exists ... " Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). If the court lacks

jurisdiction, it cannot proceed with the action and must dismiss the case. Arbaugh v. Y&H

Corp., 546 U.S. 500, 514 (2006). Even if neither party challenges subject-matter

jurisdiction, the court must evaluate the existence of subject matter jurisdiction for itself.

Id. at 506. Rule 12(h)(3) provides: "if the court determines at any time that it lacks

subject matter jurisdiction, the court must dismiss the action."

         In determining whether subject matter jurisdiction exists, the court will take

undisputed factual allegations in the complaint as true and will construe them in the light




1 Rule  12(h)(3) provides "[i]fthe court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action."


                                                 3
most favorable to the plaintiff. Estes Express Lines v. United States, 739 F.3d 689, 692

(Fed. Cir. 2014). In addition, the pleadings ofprose plaintiffs will be held '"to less

stringent standards than formal pleadings drafted by lawyers."' Johnson v. United States,

411 F. App'x 303, 305 (Fed. Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972)). However, the court's leniency will not relieve the burden on a prose plaintiff to

meet jurisdictional requirements. Minehan v. United States, 75 Fed. Cl. 249,253 (2007).

       Tested by these standards, the court must dismiss for lack of subject matter all of

Mr. Vondrake's claims. First, this court does not have jurisdiction to entertain claims

arising under either the Equal Protection and Due Process Clauses of the Fourteenth

Amendment, Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013), the Due

Process Clause of the Fifth Amendment, id., or the Fourth Amendment, Brown v. United

States, 105 F.3d 621, 623-24 (Fed. Cir. 1997). Second, to the extent that Mr. Vondrake

contends the United States violated his Sixth Amendment rights, this court lacks

jurisdiction. The Sixth Amendment is not money-mandating. Gable v. United States, 106

Fed. Cl. 294,298 (2012). Third, the court does not have jurisdiction to hear Mr.

Vondrake's allegation that the government improperly denied him bail in violation of the

Eighth Amendment. The Federal Circuit has found that the Eighth Amendment is not

money mandating and thus the Tucker Act does not provide this court with jurisdiction

over such claims. Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The

Court of Federal Claims does not have jurisdiction over claims arising under the Eighth

Amendment, as the Eighth Amendment is not a money-mandating provision.") (internal

quote omitted).


                                             4
       Fourth, this court lacks jurisdiction over Mr. Vondrake's various claims regarding

wrongful treatment by federal officials. The Federal Circuit has made clear that this

court lacks jurisdiction over Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971) actions for civil wrongs committed by agents of the

United States. Brown, 105 F.3d at 624.

       Fifth, this court lacks jurisdiction over Mr. Vondrake's claims that the United

States government and its representatives intentionally inflicted both emotional distress

and bodily harm. These claims sound in tort and are specifically excluded from this

court's jurisdiction. 28 U.S.C. § 149l(a)(l). Similarly, Mr. Vondrake's claims of torture

are outside this court's jurisdiction. Perales v. United States, 133 Fed. Cl. 417, 418

(2017).

       Finally, to the extent that Mr. Vondrake seeks to review or overturn his conviction,

this court does not possess jurisdiction to review criminal convictions or decisions by

district court. Joshua v. United States, 17 F.3d 378, 379-80 (Fed. Cir. 1994). Although

this court may adjudicate claims for money damages related to unjust convictions, Mr.

Vondrake has failed to establish that his conviction was either overturned or that he was

pardoned by the appropriate federal official "upon the stated ground of innocence and

unjust conviction[.]" 28 U.S.C. § 2513(a); see also Brickey v. United States, 116 Fed. Cl.

71, 79 (2014 ). Although, Mr. Vondrake alleges that he was pardoned by the Governor of

Louisiana, the Governor of Louisiana does not possess the authority to grant a pardon for

federal crimes. See U.S. Const. at. II, § 2 (granting pardon power for "offenses against

the United States" to the President); L. Const. art. IV, § 5 (limiting the pardon power of


                                              5
the Governor of Louisiana to offenses against the state). Thus, he does not meet the

statutory criteria for payment.

       For the reasons stated above, Mr. Vondrake's complaint must be DISMISSED in

accordance with Rule 12(h)(3) for lack of jurisdiction and his motion for leave to file in

forma pauperis is DENIED AS MOOT. Additionally, because the court finds that it

does not have jurisdiction the government's motion to stay is DENIED AS MOOT. The

Clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.




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