           3Jn tbe Wniteb ~tates QCourt of jfeberal QClaims
                                            No. 15-061C
                                       (Filed: May 21, 2015)

                                                )
 OMARI BEN FOSTER,                              )
                                                )
                         Plaintiff,             )
                                                )       Pro Se; Rule 12(b)(l); Subject-Matter
 v.                                             )       Jurisdiction; Rule 12(b)(6); Failure to
                                                )       State a Claim; In Forma Pauperis.
 THE UNITED STATES,                             )
                                                )
                         Defendant.             )
------------------------------- )
        Omari Ben Foster, Windsor Hill, Md., Plaintiff prose.
        Joshua A. Mandlebaum, Trial Attorney, Scott D. Austin, Assistant Director, Robert E.
Kirschman, Jr., Director, Benjamin C. Mizer, Acting Assistant Attorney General, United States
Department of Justice, Washington, D.C., Attorneys of Record for Defendant.

                           MEMORANDUM OPINION AND ORDER

I.      INTRODUCTION

        Prose plaintiff, Omari Ben Foster, brought this action seeking monetary damages for his
alleged unlawful arrest and wrongful conviction. The government has moved to dismiss
plaintiffs complaint for lack of subject-matter jurisdiction pursuant to Rules 12(b)(l) and
12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), because plaintiff
fails to establish that the Court possesses jurisdiction over his claim and does not state a claim
upon which relief can be granted. In addition, plaintiff has filed a motion to proceed in this
matter informa pauperis, alleging that he lacks the financial resources to pay the Court's filing
fee. Plaintiff has also filed a motion for miscellaneous relief, seeking a docket status, request for
just and speedy trial, and a notice of trial date. For the reasons set forth below, the Court: (1)
GRANTS the government's motion to dismiss; (2) GRANTS plaintiffs motion to proceed in
forma pauperis; and (3) DENIES as moot plaintiffs motion seeking miscellaneous relief.
II.     FACTUAL AND PROCEDURAL BACKGROUND 1

        On January 21, 2015, plaintiff filed a handwritten complaint alleging that he was the
victim of an "unlawful (false) arrest and conviction" in 2007. See generally Complaint. The
cover to the complaint indicates that plaintiff seeks "$4,000 TEN THOUSANDS." Id. Plaintiff
also filed a motion for leave to proceed informa pauperis on January 21, 2015, pursuant to 28
U.S.C. § 1915, which he amended on March 24, 2015. See generally Pl. Mot. to Proceed In
Forma Pauperis; Pl. Arn. Mot. to Proceed In Forma Pauperis. On February 9, 2015, plaintiff
filed a motion for miscellaneous relief, seeking a docket status, a just and speedy trial, and a
notice of trial date. See generally Pl. Misc. Mot.

        On February 26, 2015, the government filed a motion to dismiss this action for lack of
subject-matter jurisdiction pursuant to RCFC 12(b)(l), or, alternatively, for failure to state a
claim pursuant to RCFC 12(b)(6). See generally Def. Mot. In its motion, the government argues
that plaintiff has not alleged any basis for jurisdiction in the complaint, and the Court does not
possess jurisdiction to consider a challenge to the plaintiffs arrest and conviction. Def. Mot. at
3. The government further argues that the factual allegation in the complaint does not raise
plaintiffs monetary claim "above the speculative level." Def. Mot. at 4.

        On March 30, 2015, plaintiff filed a document entitled "(reply) Motion to Dismiss," in
which he failed to address the substantive grounds for dismissal of his complaint. See generally
Pl. Opp. 2 Plaintiff also purported to include a petition for habeas corpus with this filing, but the
only document enclosed with the filing was his high school transcript. Id. at 2. The government
filed its reply brief on April 10, 2015. See generally Def. Rep. Thereafter, plaintiff filed a sur-
reply by leave of the Court on April 22, 2015. See generally Pl. Sur. In this filing, plaintiff


1
  The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
("Cornpl. at _"), defendant's motion to dismiss ("Def. Mot. at _"), plaintiffs opposition to the
motion to dismiss ("Pl. Opp. at_"), defendant's reply (Def. Rep. at_"), and plaintiffs sur-
reply ("Pl. Sur."). Except where otherwise noted, the facts recited here are undisputed.
2
  The Court does not read either plaintiffs opposition to the government's motion to dismiss or
plaintiffs sur-reply to be a motion for sanctions under RCFC 11, because such motions must be
made separately from any other motion and describe the specific conduct that allegedly violates
RCFC 1 l(b). Moreover, in his sur-reply, plaintiff makes clear that he had "no intention on
requesting sanctions .... " See Pl. Sur. at 1.



                                                  2
moved to strike defendant's motion to dismiss on the grounds that it was a "[h]arassment of
procedure as defined as determent, delay or stopping of a process, and frivolous or
uninvestigated claims ... ."Id. at 1.

III.    LEGAL STANDARDS

        A.     Prose Litigants

        The Court recognizes that plaintiff filed this action pro se, without the benefit of counsel,
and so he is "not expected to frame issues with the precision of a common law pleading." Roche
v. US. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). When determining whether a
complaint filed by a pro se plaintiff is sufficient to invoke review by a court, such plaintiffs are
entitled to a liberal construction of their pleadings. Matthews v. United States, 750 F.3d 1320,
1322 (Fed. Cir. 2014). But, there '"is no duty for the trial court to create a claim which [the
plaintiff] has not spelled out in his or her pleading.'" Lengen v. United States, 100 Fed. Cl. 317,
328 (2011) (citations omitted). Although "a pro se plaintiff is held to a less stringent standard
than that of a plaintiff represented by an attorney, ... the pro se plaintiff, nevertheless, bears the
burden of establishing the Court's jurisdiction by a preponderance of the evidence .... " Riles v.
United States, 93 Fed. Cl. 163, 165 (2010) (citations omitted). And so, while the Court may
excuse ambiguities in the plaintiffs complaint, the Court does not excuse the complaint's
failures. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995); see also Demes v.
United States, 52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded prose litigants with respect
to mere formalities does not relieve them of jurisdictional requirements.") (citations omitted).

       B.      Rule 12(b)(l)

       When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction
pursuant to RCFC 12(b)(l), this Court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, plaintiff bears the burden of establishing
subject-matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir.
1998), and must do so by a preponderance of the evidence. Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citations omitted). Should the Court determine that "it
lacks jurisdiction over the subject matter, it must dismiss the claim." Matthews v. United States,
72 Fed. Cl. 274, 278 (Fed. Cl. 2006).


                                                  3
        The Court has an independent obligation to determine whether subject matter jurisdiction
exists to consider a matter. It is well established that "'subject-matter jurisdiction, because it
involves a court's power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006) (citations omitted). "[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they
must raise and decide jurisdictional questions that the parties either overlook or elect not to
press." Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011) (citations
omitted). "[A] court has a duty to inquire into its jurisdiction to hear and decide a case." Special
Devices, Inc., v. OEA Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (citations omitted).

        In that regard, the United States Court of Federal Claims is a court of limited jurisdiction
and the Court "possess[ es] only that power authorized by Constitution and statute .... "
Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). Under the Tucker Act,
the Court has limited jurisdiction to adjudicate "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)(l) (2011). 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).

       To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead a
claim founded upon 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 itself."); 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 .... "). Specifically, a plaintiff must demonstrate that the source of




                                                  4
substantive law upon which he relies "can fairly be interpreted as mandating compensation by
the Federal Government[.]"3 Testan, 424 U.S. at 400 (citation omitted).

        C.      Rule 12(b)(6)

        When deciding a motion to dismiss based upon failure to state a claim pursuant to RCFC
12(b)( 6), this Court must assume that all undisputed facts alleged in the complaint are true and
must draw all reasonable inferences in the non-movant's favor. See Erickson, 551 U.S. at 94.
And so, to survive a motion to dismiss under RCFC 12(b)(6), a complaint must contain facts
sufficient to "state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550
U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ABB Turbo
Systems AG v. Turbousa, Inc., the Federal Circuit explained the interplay between RCFC 8(a)(2)
and RCFC 12(b)(6), which "together establish[es] a notice-pleading standard that is applied, in a
context-specific manner, with the recognition that the imposition of litigation costs must be
justified at the threshold by the presence of factual allegations making relief under the governing
law plausible, not merely speculative." 774 F.3d 979, 984 (Fed. Cir. 2014). This rule requires
that a plaintiff provide a "short and plain statement of the claim showing that the pleader is
entitled to relief," so that the complaint provides fair notice of the nature of claim and the
grounds upon which it rests. RCFC 8(a)(2); see also Twombly, 550 U.S. at 555. Where the
complaint fails to "'state a claim to relief that is plausible on its face,"' the Court must dismiss
the complaint. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). On the other hand,
"[w]hen there are well-pleaded factual allegations, a court should assume their veracity," and
determine whether it is plausible, based on these facts, to find against the defendant. Iqbal, 556
U.S. at 664, 679 ("A claim has facial plausibility when the pleaded factual content allows the




3
  In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims that could provide Tucker Act
jurisdiction: (1) "claims alleging the existence of a contract between the plaintiff and the
government"; (2) "claims where 'the plaintiff has paid money over to the Government, directly
or in effect, and seeks return of all or part of that sum'"; and (3) claims "where money has not
been paid, but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.
369 F.3d 1298, 1301(Fed. Cir. 2004) (citations omitted).



                                                  5
court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). 4
Id. at 663.

IV.     DISCUSSION

        The government moves to dismiss this action on jurisdictional grounds because, (1)
plaintiffs complaint fails to assert a jurisdictional basis for his claim and (2) the Court cannot
entertain a challenge to plaintiffs criminal conviction. Def. Mot. at 3. Alternatively, the
government seeks dismissal of the complaint because the cursory allegation in the complaint
fails to state a claim upon which relief can be granted. Id. at 4. For the reasons discussed below,
the Court grants the government's motion.

        A.      The Court Does Not Possess Jurisdiction to Consider Plaintiff's Claim

                1.      Plaintiff Fails to Establish a Jurisdictional Basis for His Claim

        A plain reading of the complaint shows that plaintiff fails to establish a jurisdictional
basis for this Court to consider his claim. See generally Complaint. As discussed above, it is
well established that plaintiff bears the burden of establishing subject-matter jurisdiction, Alder
Terrace, 161 F.3d at 1377, and he must do so by a preponderance of the evidence. Reynolds,
846 F.2d at 748. To establish jurisdiction, this Court looks to the Tucker Act, which delineates
this Court's limited jurisdiction. 28 U.S.C. § 1491 (2006). The Tucker Act "confers jurisdiction
upon the Court of Federal Claims over the specified categories of actions brought against the
United States .... " Fisher, 402 F.3d at 1172 (citations omitted). These include money damages
claims against the federal government founded upon the Constitution, an act of Congress, a
regulation promulgated by an executive department, an express or implied contract with the
United States, or a claim for liquidated or unliquidated damages in cases not sounding in tort. Id.
(citing 28 U.S.C. § 1491(a)(l)). Therefore, "to come within the jurisdictional reach and the
waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that
creates the right to money damages." Id.

        Here, plaintiff has not identified any jurisdictional basis for his claim in either the
complaint or in his other filings. See generally Complaint; Pl. Op. Rather, plaintiff states in the

4
  RCFC 8(a)(2) and RCFC 12(b)(6) are identical to their counterpart Rules in the Federal Rules
of Civil Procedure.



                                                   6
complaint that he could not identify the exact "statutes and sections" since he was "not allowed
access into the law library of this court." Compl. at 1. Because the complaint and plaintiff's
filings are devoid of any reference to a statute that would confer jurisdiction upon this Court,
plaintiff has failed to satisfy his burden of establishing subject-matter jurisdiction. Alder
Terrace, 161 F.3d at 1377; Reynolds, 846 F.2d at 748.

               2.      The Court Lacks Jurisdiction to Consider a Challenge to Plaintiff's
                       Criminal Conviction

       Notwithstanding the shortcomings of plaintiffs pleadings, the Court recognizes that he is
proceeding prose, and so, plaintiff is "not expected to frame issues with the precision of a
common law pleading." Roche v. US. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987).
Thus, the Court will liberally construe his complaint to determine whether the Court possesses
subject matter jurisdiction over plaintiffs claim. See Matthews, 750 F.3d at 1322.

       A possible reading of plaintiffs complaint is that he seeks to challenge the lawfulness of
his criminal conviction in 2007. See generally Complaint. In that regard, the government
correctly argues that such a challenge of plaintiffs criminal conviction is beyond the scope of
this Court's jurisdiction. Def. Mot. at 3.

       It is well established that this Court does not possess jurisdiction to consider criminal
matters. See 28 U.S.C. § 1491. In Jones v. United States, the United States Court of Appeals for
the Federal Circuit held that this Court lacks jurisdiction to review the judgments of state and
federal courts pertaining to criminal convictions. Jones v. United States, 440 F. App'x 916, 918
(Fed. Cir. 2011) ("To the extent that Jones asked the CFC to review any of the judgments of the
Minnesota state and federal courts with respect to his criminal case, the CFC does not have the
authority to review such decisions."); see also Carter v. United States, 228 Ct. Cl. 898, 900
(1981) (Plaintiff "cannot ... make a collateral attack on his convictions under the guise of a
claim for money damages."). And so, to the extent that plaintiff seeks a review of court
judgments with respect to his criminal conviction, this Court does not have the authority to
review those decisions.




                                                  7
               3.      Plaintiff Fails to Satisfy the Statutory Requirements for an Unjust
                       Conviction and Imprisonment Claim

        To the extent that plaintiff seeks to allege an unjust conviction and imprisonment claim
under 28 U.S.C. §§ 1495 and 2531, the Court also lacks jurisdiction to consider this claim.
Pursuant to Title 28, United States Code section 1495, this 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 (1992). This provision, "must be read in
conjunction with 28 U.S.C. § 2513." Humphrey v. United States, 52 Fed. Cl. 593, 596 (2002),
aff'd, 60 F. App'x 292 (Fed. Cir. 2003) (per curium). Section 2513 provides in pertinent part
that:

        (a) Any person suing under section 1495 of this title 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.

        (b) Proof of the requisite facts shall be by a certificate of the court or pardon
        wherein such facts are alleged to appear, and other evidence thereof shall not be
        received.

28 U.S.C. § 2513(a) and (b) (2004).

        This Court strictly construes the requirement for relief under these statutes. 5 See Vincin
v. United States, 468 F.2d 930, 933 (Ct. Cl. 1912). And so, an unjust conviction and




5 This Court has dismissed cases brought under section 1495 for failure to state a claim upon the
basis that jurisdiction attaches when a plaintiff identifies a money-mandating statute. See, .e.g.,
Sykes v. United States, 105 Fed. Cl. 231 (2012) (citing 28 U.S.C. § 1495). In other instances,
this Court has dismissed section 1495 cases for lack of subject matter jurisdiction-as the Court
does here-because Congress conditioned the exercise of jurisdiction under section 1495 upon the


                                                  8
imprisonment claim must be established either by a certificate granted by the court of conviction
or a pardon. Humphrey, 52 Fed. Cl. at 596 (citing Hadley v. United States, 66 F. Supp. 140, 141
(Ct. Cl. 1946)). In addition, such a certificate or pardon must "either explicitly or by factual
recitation" state that the plaintiff has satisfied the requirements of section 2513. Id. at 597 (citing
Andolschek v. United States, 77 F. Supp. 950, 951 (Ct. Cl. 1948)).

        Plaintiff fails to satisfy the statutory requirements of sections 149 5 and 2513 here.
Plaintiff has not submitted a court-issued certificate showing that his conviction has been
reversed. See generally Complaint and Pl. Op. Nor has plaintiff provided this Court with any
proof of a pardon. Id. As the Federal Circuit recently noted, "28 U.S.C. § 2513 states [the]
requirements for such a suit, making clear that the Court of Federal Claims may not itself review
the conviction and imprisonment" unless the plaintiff has "show[n] that '[h]is conviction has
been reversed or set aside on the ground that he is not guilty ... or that he has been pardoned."'
Carpenter v. United States, No. 2015-5014, 2015 WL 480496, at *2 (Fed. Cir. Feb. 6, 2015)
(citations omitted) ("Proof of the requisite facts shall be by a certificate of the court or pardon
... and other evidence thereof shall not be received."). And so, to the extent that plaintiff alleges
an unjust conviction and imprisonment claim here, the Court does not possess jurisdiction to
consider his claim. 6

       B.       Plaintiff's Motion for Leave to Proceed In Forma Pauperis Satisfies the
                Statutory Requirement

       Plaintiff has also moved to proceed in this matter informapauperis. See generally Pl.
Mot. to Proceed In Forma Pauperis and Pl. Am. Mot. to Proceed In Forma Pauperis. This Court
may authorize commencement of a suit without prepayment of fees when a person submits an


requirements set forth in section 2513. See, e.g., Hazel v. United States, No. 14-310C, 2014 WL
5500038 (Fed. Cl. Oct. 31, 2014).
6
  The government also moves to dismiss the complaint because plaintiff fails to state a claim
upon which relief can be granted. Def. Mot. at 4. Because the Court has already determined that
it does not possess jurisdiction to consider plaintiffs claim, the Court does not need to address
this issue to resolve the government's motion. Nonetheless, the Court also finds that plaintiffs
very cursory complaint does not contain sufficient factual allegations "to raise a right to relief
above the speculative level." ABB Turbo Systems AG, 774 F. 3d. at 984 (internal citation
omitted). And so, dismissal of plaintiffs complaint for failure to state a claim is also
appropriate. RCFC 12(b)(6).



                                                  9
affidavit including a statement of all assets, a declaration that he or she is unable to pay the fees,
and a statement of the nature of the action and a belief that he or she is entitled to redress. See 28
U.S.C. § 1915(a)(l) (The United States Court of Federal Claims, while not generally considered
to be a "Court of the United States" under Title 28, is deemed to be a "Court of the United
States" for purposes of this statute. 28 U.S.C. § 2503(d)). Due to the Court's summary
disposition of this case and plaintiffs pro se status, the Court finds that plaintiff satisfies the
requirements to proceed in forma pauperis for the purpose of resolving the government's motion
to dismiss. And so, the Court grants plaintiffs motion and waives the Court's filing fee.

        C.      Plaintiff's Motion for Miscellaneous Relief is Moot

        Lastly, plaintiff has filed a motion for miscellaneous relief, seeking a docket status,
request for just and speedy trial, and a notice of trial date. See generally Pl. Misc. Mot. Given
the Court's determination to dismiss this matter upon jurisdictional grounds, the Court denies
plaintiffs motion as moot. See, e.g., Wojtczak v. United States, No. 12-449C, 2012 WL
4903025, at *4 (Fed. Cl. Oct. 17, 2012) ("Because ... plaintiff has not raised allegations over
which this court has jurisdiction, the court denies these motions as moot.").

V.      CONCLUSION

        For the foregoing reasons,

        1.      Defendant's Motion to Dismiss, filed February 26, 2015, is GRANTED;

        2.      Plaintiffs Motion for Leave to Proceed In Forma Pauperis, filed January 21,
                2015, is GRANTED; and

       3.      Plaintiffs miscellaneous motion seeking a docket status, request for just and
                speedy trial, and a notice of trial date, filed February 9, 2015 and modified on
               March 24, 2015, is DENIED as moot.

       The Clerk's Office is directed to ENTER final judgment in favor of defendant,
DISMISSING the complaint. No costs.

       IT IS SO ORDERED.




                                                   10
