      In the United States Court of Federal Claims
                                    No. 13-69C
                               (Filed July 31, 2013)
                             NOT FOR PUBLICATION

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WILLIAM OSCAR HARRIS,   *
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             Plaintiff, *
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         v.             *
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THE UNITED STATES,      *
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             Defendant. *
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                   MEMORANDUM OPINION AND ORDER

       This matter, filed by a pro se litigant, purports to be a breach of contract
action. Plaintiff, William Oscar Harris, alleges that he entered into a contract with
then-Treasury Secretary Timothy Geithner (“the Secretary”), which the Secretary
breached. The government has moved to dismiss this complaint, under Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”), for lack
of subject-matter jurisdiction. See Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 4-6. For
the reasons that follow, the government’s motion is GRANTED.

                                I. BACKGROUND

         Plaintiff mailed to the Secretary a signed document entitled an “Assignment
of Fiduciary” (“Assignment”) on November 23, 2012. Compl. at 5. The document
purports to assign Mr. Geithner as the fiduciary of an “International Bill of
Exchange . . . in the amount of $13,000,000 USD.” Id. By its terms, the
Assignment required the Secretary to, “within 31 Business days, after receipt hereof
. . . cause Payee to either forward this to the Drawer a Statement of Account
indicating settlement/discharge adjustments have been made or dishonor of the
instrument with sufficient cause.” Id.

      After the Secretary failed to respond within the time allowed under the
Assignment, plaintiff sent a document entitled “Notice of Default/Breach of
Fiduciary Duty” (“Notice”) to Mr. Geithner. Compl. ¶ 8. The Notice gave the
Secretary seventy-two hours to “return the proceeds of the financial instrument”
tendered with the Assignment. Id. at 13. Mister Geithner did not so tender. See
id. ¶ 10. On January 28, 2013, plaintiff filed the present complaint in this Court.
See id. 1 He alleges that defendant breached an express contract and seeks
monetary damages of $13,000,000. 2 Id. ¶¶ 3, 8, 15. The government’s motion has
been fully briefed. The Court has determined that oral argument was unnecessary
to resolve this motion.

                                   II. DISCUSSION

       Under RCFC 12(b)(1), claims brought before this Court must be dismissed
when it is shown that the Court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, the Court will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326
(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter
jurisdiction the court views “the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate”); CBY Design Builders v. United States, 105 Fed. Cl.
303, 325 (2012). While pro se plaintiffs’ filings are to be liberally construed, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims
which are outside our jurisdiction from being dismissed. See, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court’s jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991).

      This Court’s jurisdiction over the area of contract claims is established by
various provisions of the Tucker Act, including 28 U.S.C. § 1491(a)(1), which
extends jurisdiction over express or implied contracts entered into with the
government. See Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343-
1344 (Fed. Cir. 2008). But “[t]he Tucker Act itself does not create a substantive
cause of action; in order to come within the jurisdictional reach and the waiver of
the Tucker Act, a plaintiff must identify a separate source of substantive law that


1 Along with the complaint, plaintiff filed, without any explanation (other than that
the individuals “have an interest in these proceedings”), the names and addresses of
two individuals to whom he wanted the Clerk’s office to send copies of papers filed
in this case. In light of the disposition of this case, and plaintiff’s failure to explain
the third parties’ interest, the Court DENIES this request.

2 On March 4, 2013, plaintiff filed an amended complaint naming the United States
as defendant in this case. See Pl.’s Am. Compl.
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creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (citations omitted). “In determining whether the Court of Federal
Claims has jurisdiction, all that is required is a determination that the claim is
founded upon a money-mandating source and the plaintiff has made a nonfrivolous
allegation that it is within the class of plaintiffs entitled to recover under the
money-mandating source.” Jan’s Helicopter Service v. Federal Aviation
Administration, 525 F.3d 1299, 1309 (Fed. Cir. 2008). A contract which entitles a
party to money damages in the event of a breach is such a money-mandating source.
See Rick’s Mushroom, 521 F.3d at 1343-1344.

       Defendant argues that plaintiff has made only frivolous allegations of a
contract and that such allegations are insufficient to support subject-matter
jurisdiction. 3 Def.’s Mot. at 4-6. Plaintiff, for his part, does not seem to disagree
with the government on the merits of this argument, but rather contends that the
government has admitted the existence of a contract by failing to properly respond
to his requests for admissions. Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’s Resp.”) at
1-4.

       The government is correct that the plaintiff’s claim must be dismissed as
frivolous and not within our subject-matter jurisdiction. A party does not place a
matter within our jurisdiction by simply calling something a contract which does
not meet the legal definition of one. The Federal Circuit has established “that
insubstantial allegations as to the existence of a money-mandating contract will
warrant dismissal for lack of subject matter jurisdiction.” Tp. of Saddle Brook v.
United States, 104 Fed. Cl. 101, 110 (2012) (citing Rick’s Mushroom, 521 F.3d at
1343-44; Ridge Runner Forestry v. Sec’y of Agric., 297 F.3d 1058, 1060 (Fed. Cir.
2002)).

        Assuming all of plaintiff’s factual allegations to be true, these boil down to
the fact that he sent documents to the Secretary, which the latter (appropriately
and understandably) ignored. This fails to establish subject-matter jurisdiction, as
plaintiff neglects two necessary elements of a contract. First, plaintiff has failed to
plead acceptance. Mister Harris claims that by failing to respond to Mr. Harris’
offer to contract in the time allotted for rejection, the Secretary thereby accepted the
contract. Compl. ¶¶ 6-7. Acceptance by silence requires special circumstances
which are not present in this case. Radioptics, Inc. v. United States, 621 F.2d 1113,
1121 (Ct. Cl. 1980)) (noting that “Silence may not be construed as an acceptance of
an offer in the absence of special circumstances existing prior to the submission of
the offer which would reasonably lead the offeror to conclude otherwise.”). Second,


3 The government also argues, on the same grounds, that plaintiff has failed to
state a claim for which relief can be granted. Def.’s Mot. at 6-9. Because the Court
determines that it lacks subject-matter jurisdiction, defendant’s motion in the
alternative is DENIED-AS-MOOT.


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plaintiff has failed to plead consideration. Nowhere in his complaint does he claim
that he has agreed to some “act, forbearance, or return promise” which he made to
the government; such a promise is required for a valid contract. See Carter v.
United States, 102 Fed. Cl. 61, 67 (2011). Rather, Mr. Harris simply asserts that he
sent the Secretary a document purporting to appoint him as the “trustee” of an
“International Bill of Exchange.” Compl. at 5. Plaintiff does not dispute his failure
to plead these elements of a contract. See Pl.’s Resp. In sum, plaintiff’s claim must
be dismissed on the grounds that the Court lacks subject-matter jurisdiction,
because even accepting all of the factual allegations as true, plaintiff has not pled
the existence of a contract.

       Before disposing of this matter entirely, the Court will briefly address
plaintiff’s argument that the government has admitted the existence of a contract.
On May 10, 2013, Mr. Harris submitted some requests for admissions to the
government. Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss (“Def.’s Reply”) at
3. 4 The government, possibly erroneously, responded that it was not obligated to
respond to those requests until the early meeting of counsel required under
paragraph 3 of RCFC Appendix A. 5 Id.; see also Pl.’s Resp. at 10. Plaintiff argues
that by failing to respond in a timely and proper manner, the government is deemed
to have responded affirmatively to all of his requests for admissions. Pl.’s Resp. at
1-4. As the government points out in reply, however, the plaintiff is incorrect about
the consequences of an improper objection. Def.’s Reply at 6. If plaintiff believed
that the government’s response was inadequate, the proper course of action would
have been to file a motion contesting the sufficiency of the answer under RCFC
36(a)(6). 6 The government’s failure to address the substance of the propounded
requests for admission cannot serve as the basis for our court’s subject-matter
jurisdiction.


4 The Court notes that these requests were served well after the initial deadline for
responding to the government’s motion to dismiss, during a period of enlargement
that was requested (and granted) based on plaintiff’s reduced access to his case files
and the legal library while he was placed in a special housing unit. See Request for
Enlargement at 2; Order (Apr. 16, 2013). The purpose of the enlargement was not
to provide Mr. Harris the occasion to conduct discovery which has no relevance to
an RCFC 12(b)(1) motion.

5 In its reply, the government does not appear to dispute plaintiff’s contention that,
as a pro se prisoner in the custody of the United States, he is exempt from the
restriction on discovery under RCFC 26(a)(1)(B)(iv). See Def.’s Reply at 3-6.

6 In any event, the parties cannot stipulate the existence of a contract to confer
jurisdiction on our court which we would otherwise lack. See S. Cal. Federal Sav. &
Loan Ass'n. v. United States, 422 F.3d 1319,1328 n.3 (Fed. Cir. 2005).


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                                III. CONCLUSION

        For the reasons stated above, the government’s motion to dismiss this case
for lack of subject-matter jurisdiction is GRANTED. The Clerk shall close the
case. 7

IT IS SO ORDERED.




                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




7 Despite the frivolity of this case, the government did not file an opposition to
plaintiff’s application to proceed in forma pauperis, and the Court as a consequence
hereby GRANTS the application.
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