Case: 19-2300    Document: 20     Page: 1   Filed: 02/07/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  JAMEEL IBRAHIM,
                   Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2019-2300
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00760-CFL, Senior Judge Charles F. Lettow.
                   ______________________

                Decided: February 7, 2020
                 ______________________

    JAMEEL IBRAHIM, Newark, NJ, pro se.

     ERIN MURDOCK-PARK, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for defendant-appellee. Also represented by
 JOSEPH H. HUNT, DEBORAH ANN BYNUM, ROBERT EDWARD
 KIRSCHMAN, JR.
                   ______________________

     Before LOURIE, CHEN, and STOLL, Circuit Judges.
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 2                                    IBRAHIM v. UNITED STATES




 PER CURIAM.
     Mr. Jameel Ibrahim appeals from a decision of the
 United States Court of Federal Claims (the “Claims
 Court”), dismissing his complaint against the United
 States for an alleged breach of an implied-in-law contract.
 Ibrahim v. United States, No. 1:19-cv-00760-CFL, 2019 WL
 3384849 (Fed. Cl. July 26, 2019) (“Decision”). Because the
 Claims Court correctly concluded that it lacked subject
 matter jurisdiction pursuant to the Tucker Act, we affirm.
                         BACKGROUND
     Ibrahim filed a complaint in the Claims Court in May
 2019, alleging that the United States breached an “implied
 by law” contract it had made with Ibrahim on April 26,
 2000. The Claims Court allowed Ibrahim to supplement
 his complaint shortly thereafter.         Supplement to
 Complaint, Ibrahim v. United States, No. 1:19-cv-00760-
 CFL, 2019 WL 3384849 (Fed. Cl. May 28, 2019), ECF No.
 5. It appears from this Supplement that the “contract”
 Ibrahim refers to is a child support order from the state
 court system of New Jersey.
     On January 23, 2019, Ibrahim sent a twelve-page letter
 to various officials of the State of New Jersey, cabinet
 secretaries, and the Supreme Court of the United States,
 styled     a     “Conditional      Acceptance       for    the
 Value/Agreement/Counter Offer to Acceptance of Offer.”
 Supplement at 7. In the letter, Ibrahim alleged that he had
 “received [these parties’] offer and accept[ed]” it, subject to
 conditions set forth in the rest of the letter—for the most
 part, demands that the recipients justify the existence of
 various governmental agencies and practices. Id. The
 letter asserts that failure to do would result in “default,”
 and in turn, an obligation to pay Ibrahim $3.5 million in
 damages. Id. at 14.
     The Claims Court dismissed Ibrahim’s complaint,
 concluding that he had failed to establish the Claims
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 IBRAHIM v. UNITED STATES                                      3



 Court’s jurisdiction over his action because, among other
 reasons, Ibrahim had failed to plausibly allege that any
 contract existed between him and the United States.
 Decision, 2019 WL 3384849, at *3–4. The Claims Court
 also held that dismissal would be proper under Rule
 12(b)(6) of the Rules of the United States Court of Federal
 Claims because Ibrahim’s complaint “allege[d] implausible
 facts about an alleged contract between him and the
 United States government” and provided only the signed
 letter sent by Ibrahim as support for his allegations. Id. at
 *4.
     Ibrahim then filed this appeal. We have appellate
 jurisdiction under 28 U.S.C. § 1295(a)(3).
                          DISCUSSION
     We review dismissals by the Claims Court for lack of
 jurisdiction de novo. Frazer v. United States, 288 F.3d
 1347, 1351 (Fed. Cir. 2012). A plaintiff bears the burden of
 establishing jurisdiction by “supporting [his] allegations by
 competent proof.” Thomson v. Gaskill, 315 U.S. 442, 446
 (1942). A pro se plaintiff is entitled to a liberal construction
 of his complaint, see Haines v. Kerner, 404 U.S. 519, 520
 (1972), but this leniency does not lessen his burden of
 establishing the Claims Court’s subject matter jurisdiction,
 see Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380
 (Fed. Cir. 1987).
     The Claims Court is a court of limited subject matter
 jurisdiction. See Terran ex rel. Terran v. Sec’y of Health &
 Human Servs., 195 F.3d 1302, 1309 (Fed. Cir. 1999). It has
 jurisdiction to “render a judgment upon any claim against
 the United States founded . . . upon any express or implied
 contract with the United States.” 28 U.S.C. § 1491(a).
 Establishing subject matter jurisdiction is a threshold
 issue, Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348
 (Fed. Cir. 2010), and every federal court has an
 “independent obligation to determine whether subject
 matter jurisdiction exists, even in the absence of a
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 4                                  IBRAHIM v. UNITED STATES




 challenge from any party.” Arbaugh v. Y & H Corp., 546
 U.S. 500, 514 (2006). In deciding whether there is subject-
 matter jurisdiction, “the allegations stated in the
 complaint are taken as true and jurisdiction is decided on
 the face of the pleadings.” See Shearin v. United
 States, 992 F.2d 1195, 1195–96 (Fed. Cir. 1993).
     Ibrahim principally argues that the Claims Court erred
 in dismissing his complaint because he failed to establish
 the existence of a contract between him and the United
 States. He contends that his letter was a “counter-offer”
 and that the government’s failure to respond constituted
 an acceptance of a default, unilateral contract.
     The government responds that Ibrahim did not
 plausibly allege the existence of a contract and therefore
 could not invoke the jurisdiction of the Claims Court. The
 government further argues that, even viewed charitably,
 Ibrahim’s letter is no more than a conditional counteroffer,
 and thus, not a contract.
      We agree with the government that Ibrahim failed to
 meet his burden of establishing the jurisdiction of the
 Claims Court. A non-frivolous allegation that a contract
 exists between a plaintiff and the United States is
 sufficient to invoke the subject matter jurisdiction of the
 Claims Court, but dismissal may be proper for lack of
 subject matter jurisdiction “if the claim is ‘wholly
 insubstantial and frivolous.’” Lewis v. United States, 70
 F.3d 597, 602–04 (Fed. Cir. 1995) (quoting Bell v. Hood, 327
 U.S. 678, 682–83 (1946)). As the Claims Court concluded,
 Ibrahim’s complaint and supplement do not set forth any
 non-frivolous factual allegations from which the Claims
 Court could have plausibly concluded that Ibrahim had a
 contract with the United States government. Instead, it
 only appears that Ibrahim sent several governmental
 officials an unsolicited letter, which is not a contract. Cf.
 Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012,
 1019 (Fed. Cir. 1996) (“[T]he essence of a unilateral
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 IBRAHIM v. UNITED STATES                                   5



 contract is that one party’s promise is conditional upon the
 other party’s performance of certain acts and when the
 other party performs, the first party is bound.” (emphasis
 added)). In other words, an offeree’s failure to respond to
 an unsolicited offer does not create a contract, regardless
 of any contrary terms in the offer.
     Even if Ibrahim’s letter were responsive to a previous
 communication of the United States government—a
 scenario which is both wholly unsupported by the
 pleadings     and    highly improbable—a conditional
 counteroffer does not form a contract. See First Commerce
 Corp. v. United States, 335 F.3d 1373, 1381 (Fed. Cir. 2003)
 (“A reply to an offer which purports to accept it but is
 conditional on the offeror’s assent to terms additional to or
 different from those offered is not an acceptance but is a
 counter-offer.”    (quoting RESTATEMENT (SECOND) OF
 CONTRACTS § 59 (1979))). Contract law does not permit one
 to send unsolicited letters to the government (or anyone
 else) declaring that a failure to respond to the letter
 constitutes both formation and breach of a contract,
 entitling the sender to liquidated damages.
      In addition, to the extent Ibrahim alleges that his
 contract with the United States was implied-in-law, the
 Supreme Court has “repeatedly held that [Tucker Act]
 jurisdiction extends only to contracts either express or
 implied in fact, and not to claims on contracts implied in
 law.” Hercules Inc. v. United States, 516 U.S. 417, 423
 (1996) (collecting cases). Thus, the Claims Court would
 still have been required to dismiss Ibrahim’s complaint for
 lack of subject matter jurisdiction.
     Because we conclude that the Claims Court correctly
 held that it lacked subject matter jurisdiction, we need not
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 6                                    IBRAHIM v. UNITED STATES




 reach its alternative ground of dismissal for failure to state
 a claim under Rule 12(b)(6). 1
                         CONCLUSION
     We have considered the rest of Ibrahim’s arguments
 but find them unpersuasive. For the foregoing reasons, the
 judgment of the Claims Court is
                         AFFIRMED




     1    We have previously noted that, while dismissal for
 lack of subject matter jurisdiction may be appropriate in
 some frivolous cases, “the Supreme Court has made clear
 that such jurisdictional dismissals for frivolousness must
 be ‘confin[ed]’ to cases ‘that are very plain.’” Lewis, 70 F.3d
 at 603–04 (Fed. Cir. 1995) (quoting Hart v. B.F. Keith Vau-
 deville Exch., 262 U.S. 271, 274 (1923)). And unlike dis-
 missal for failure to state a claim, jurisdictional dismissal
 does not give rise to claim preclusion. See Lewis, 70 F.3d
 at 603.
