      TJnttle                       @nite! $.tutes @ourt of felersl @lsfmg
                                                                                             No. l6-954C
                                                                                         Filed: June 28, 2017
                                                                                                                                                  FILED
 +* +*           ****     *   ** * t t t t i1.1 t t t *,t * **                  * * **,i. * t *    a   *   ** *
                                                                                                                                                 irlil 2 J tuii
                                                                                                                                               IJS COIJFi   OF
 SYLVAN GODFREY,                                                                                                                              FfDERAL   CLN.II.JS


                                                                                                                           Rules of the United States Court of
                       Plaintiff, pro se,
                                                                                                                               Federal Claims ('RCFC) l s(a)(2)
                                                                                                                               (Amendments Befole Trial); 56
                                                                                                                              (Summary Judgment); 83.I (aX3)
                                                                                                                              @ligibility to Practtce; Pro Se
                                                                                                                              Litigants),
 TIIE TJNITED STATES,


                      Defendant.


 rr   r   '|.
                |i   ** r * **   * +,t:+ r   1.   **   t(
                                                            '*
                                                                 **   {.   ** f * * **   * * *,}   ** ** *

Sylvan Godfrey, Marianna, Flor.ida, plaintifi pro                                                                 se   .



courtney D. Enlow, united states Department of Justice,                                                                         civ    Division, washington, D.c.,
Counsel for the Government.

           MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT,S
                       MOTION FOR SUMMARY JUDGMENT
BRADEN, ChiefJudge.

I,                   RELEVANTFACTUALBACKGROUND.'

       sylvan codfrey, a member ofthe Sioux Indian'riibe ofSouth Dakota, is cunentry
                                                                                       serving
a 365-month prison term at the Federal corrections lnstitute (.,FCI")
                                                                      in Marianna, gorida ttrat
commenced in 2013. See Godfey v. United States,l3l Fed. Ci. 11l,1l4
                                                                                                                                            eol,l).
       On December8,20l0, Congress enacted the Claims Resolution
,-.,
124 stat. 3064 (2010) that authorized,
                                                                 Act, pub. L. No. lll_291,
                                                                                          ratified, and confinned a Decembir 9. 2009 Setrlemenr


      ' The relevant facts are derived from the coul's March 20, 2017 Memorandum Opinion
And Order, Godf.ey v. United Stqtes,l3l Fed. Cl. I I l. 114-15
                                                               Q017), and the April 26,2017
Government's Appendix (,.Gov't App'x at Al-Al l4").


                                                                              ?0I? l,'{50 0000 l,3qh 0ae5
 Agreement in Cobell v. Salazar, Civil Action No. 96-1258, ECF 3660-2 (D,D.C. 2009) ("the
  Settlement Agreement"), whereby tlre Govelnment deposited $ I .4 billion into the
 Accounting/Trust Administration Fund, and $2 billion into the Trust Land Consolidation Fund.
 Govl App'x at A8, A17. The Settlement Agreement also established a class of plaintiffs,
 designated as the Historical Accounting Class, of which Mr. Godfiey is a member. See Godlrey,
  131 Fed- Cl. at7151,see a/su Gov't App'x at A8-A12. Under the terms of the December9,2009
  Settlement Agreement, each member of the Historieal Accounting Class is entitled to $1,000 from
 the Accounting/Trust Administration Fund. Gov't App'x at A29. The settlement Agreement also
 established a separale Trust Administration class; members of that class received a payment of
 $500 plus a prorated share of any funds left over from the Accounting/Trust Administltion Fund.
 Gov't App'x at A30-A31. Mr. Godfrey is a member of the Trust Administration class. Gov't
 App'x at A10l-A102, Al 10. Mr. Godfrey,s father, George Godfrey, Sr., also was a member of
 the two classes. Gov't App'x A102, Al 12, A114. Heirs of class members are also entitled to
 payment. Gov't App',x at A100.

          The parties 1o the December 9, 2009 settlement Agreement designated Garden city Group,
 Inc. ('ccc") to serve as the claims Administrator; GCG was thereby charged with the duty to
 "provide seryices to the Parties to facilitate adminisaative matters and distribution ofthe Amount
 Payable for Iiach Valid Claim in accordance with the terms and conditions of
                                                                                     [the December 9,
 2009 settlement Agreementl." Gov't App'x at A9. The December 9, 2009 settliment
                                                                                           Agreement
 specified that the Government "shall have no role in, nor be held responsibie or liable
                                                                                           inLy way
 for, the.Accounting 'lrust Administration Fund, the holding or investment of
                                                                                    the monies ln the
 Qualifying Bank or the distribution of such monies.,' Gov,t-App'x at A2Z.

II.     PROCEDURALHISTORY.

        on August 4,2016,Mr. Godfrey ("praintiff') filed a complaint in the United states court
 ^_ , Claims alleging
ofFederal                  that the Government violated his statuiory and constitutional rights, as
well as the terms of the December 9,2009 seltlement Agreement. dcr No. 1 at
                                                                                 l-5    c.co;pl.-).
        on september 30, 2016, the Goverru'ent filed a Motion To Dismiss the August 4, 2016
 -
complaint, pursuanr to Rures of the unired states court of Federal claims (,RcFc)
                                                                                        Tiiuxrl ,ra
 l2(b)(6). ECF No. 8. Plainli{Ps Response to the september 30,2016 Motion was
                                                                                     aue on b'ciou".
31' 2016. weeks after the deadline, however, plaintifffailed to fit" uoy."rponr"
                                                                                    o1',i;*rr"" *itt
the court. Therefore, on December 2,2016, the courl issued an order
                                                                       instLircting euintirr to rtow
cause why this case should not be dismissed for failure to prosecute.
                                                                       ECF No. 9,

_  _ -on, December lg,20l6, plaintifffiled
To Defendant's
                                          a Motion For Extension of rime To File opposition
               Moticn To Dismiss,   To Amend complaint, And For Third rarty nepreJJntativ".
ECF No. 10. on January 3, 2016, the court grantea plaintiff
                                                             an enlargement'of ti,"- ;;-fil
response to the Government's september 30,2016 Motion To
                                                             Dismiss, but did not rule on the"
Piaintiff s Deoember 19, 2016 Motion To Amend or Motion For Third p-ty
No.       on January 4,2o17, the Govemment filed a Response to plaintifis
                                                                         n"pr"r"nr^tiu".       rcr
    _11.                                                                  D'ecember 19, 20t 6
Motions. ECF No. 12.

      on January 18, 2017, Plaintifffiled a Motion To Alter or AmeM l'he December
                                                                                  19, 2016
Judgment, that the court considered a response to the september
                                                                30,2016 Motion To Dismiss.
ECF No. 14. Thelein, Plaintiff argued that: (i) another case pending before the United States
Court of Federal Claims, Redboyv. United States,No. 17-19, is "mater.ial to [Plaintiff s] ability to
state the jurisdiction of this court;" (2) the recor.d reflects PlaintifPs effort to oppose the
Government's Motion To Dismiss; and (3) Plaintiff "lacks the ability to pursue his rights as a truly
pro se htigant," because FCI- Marianna did not afford Victor Fourstar, PlaintifPs ,.third-party
representative," aocess to Plaintiffs legal files. ECF No. 14 at 2.

         On March 20,2017, the court granted the Government's September 30, 2016 Motion To
 Dismiss, pursuant to RCFC I2(bxl ), with regard to all of the claims alleged in the August 4, 2016
 complaint, except the claim that the Govemment failed to compensate plaintifffi.rlly as a member
 of the Historical Accounting class. .iee Godfrey,131 Fed. cl.      123-24. plaintiffs December
 19,2016 Motion For'lhird Party Representative requesting that^tMr. Fourstar.serve as Plaintills
 counsel, also was denied under RCFC 83.1(aX3). Id. at1221j.

         On Apld,l26,2017, the Govenunent filed a Motion For Summary Judgment (,,Cov1 Mot',),
pursuant to RCFC 56, together with an Appendix. ECF No. 19, By the April 26, 2017 Motion
For summary Judgment, tlre Govemment al'gues that it was under no contractual obligation ro
make a payment to Plaintiff as an individual member of the Historical Accounting Clasi and, in
the alternative, that Plaintiffwas in fact paid fully as a member of the Historical Accounting Class,
Gov't Mot. at   l.
        On May 24,2017, Plaintiff filed a Response (,,p1. Resp.') and requested leave to amend
the August 4, 2016 complaint. Pl. Resp. at      i.PlaintiJPs May 24,2017 Response was written,
signed, and filed by Mr. Fourstar. Pl. Resp. at 5-6.


_     On May 26,2017, the Govemment filed a Morion To Strike plaintiffs               May 24,2017
Response    and a Reply In Support   of Motion For summary Judgmenl             plaintiffs
                                                                          a Response To
RequestFor Third Party Reprcsentation, and a Response To plaintiffs Request For Leave To
Amend the August 4, 2016 complaint ("Gov't Reply"). on June 16,2017,tf,e court convened a
telephone conference, wherein the Government withdrew the May 26, 2017 Motion To strike.

III.    DISCUSSION.

        A.      Jurisdiction,

         Th9 court previously determined that it has jurisdiction to adjudicate the allegation in the
August 4, 2016 complaint that the Govemment breached the terms of the settlemeniAgreement,
because it "could fairly be interpreted as contemplating money damages in the Ivent
                                                                                                  the
Government underpaid a member of the Histodcal eccounting class." Gidfray,l3l
                                                                                          Fed. cl. at
I 22 (citarions omitted).


       B.       Stending.

                  also previously delermined that Plaintiffhas standing to seek adjudication of his
       .The_court
claim that the Govemment breached the terms of the Settlement Agreement,
                                                                              as:

       [t]he Decernber 9 ,2009 cobel settrement Agreement provides thar, ..each member of the
       Historical Accounting Class shall be paid a per capita amount of g1,000,00 after
                                                                                        Final
          Approval. This wilt be a per-person, not a per-account, payment." Cobell v. Salamr,Civtl
          Action No. 96-1258, ECF No. 3660-2 at tf E.3a, The August 4,2016 Complaint alleges
          that the Government breached these terms, because Plaintiff is a member of the Historical
          Accounting Class, but only received $880. Compl. at 1-2. Under these circumstrnces, the
          court has determined that the December 9, 2009 Cobel/ Settlement Agreement could fairly
          be interpreted as contemplating money damages in tJre event that the Govemment
          underpaid a member of the Historical Accounting Class.

Godfrey, 131 Fed. Cl. at 122.

                 Relevant Legal Standards.

                 1,     Standard Of Review For A Motion For Summary Judgment, Pureulnt
                        To RCFC 56(a).

         If there is no genuine issue as to any material fact, the moving party is entitled to summary
judgment as a matter of law. See Andersonv. Liberty Lobby, Lnc.,477 U.5.242,255 (1986);see
a/so RCFC 56(a) ("The court shall granl summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled tojudgrnent as a matter oflaw.').
A material fact is one that might significantly affect the oulcome of the suit under applicable law.
see Anderson,477 u.s. at 248 ("As to matedaliry, rhe substantive law will identify which facts
are matetial. Only disputes over facts that might affect the outcome ofthe suit under the goveming
law will properly pr€clude the enlry of summary judgrnent. Faotual disputes that are irrelevant or
unnecessary will not be counted. . . . Thar is, while the materiality determination rests on thc
substantive law, it is the substantive law's identification of which facts are critical and which facts
are irrelevant that governs."). The existenc€ of " some alleged factual dispute between the parties
will not defeat an otherwise properly suppofied motion for srunmaf,y judgnent[.]" ld. at 249
(emphasis in original). Where the nonmoving party only proffers evidence that is .,melely
colorable, or is not significantly probative, summary judgment may b€ granted,', Id. at 249-50
(citations omitted).

        The party moving for sunmmry judgment has the initial burden of demonstratins the
absence  of any genuine issue of material fact, see celotex corp. v. carrett, 477 u.s.317:32s
(1986). If the moving parry canies its burden to demonsfate an absence ofany genuine issue of
material fac1, then the burden of pmof shifts to the nonmoving party to "set forth specific facts
showing that there is a genuine issue Jbf trial." Anderson,477 u.s, at 250. The court is rcouired
   rcsolve any doubts about factual issues in favor ofthe nonmoving party. see Matsushiti Elec.
!o
Indus. Co. v Zenith Radio Corp., 4?5 U.S. 574, SS7 (1987). In doing so, all presumptions and
inferences drawn from the evidence must be resolved in favor of the norunoving party. Id.
Nevertheless, the court must weigh the persuasiveness and plausibility of such evidenci ani view
it "through the prism of the substantive evidentiary burden." anderson,477 u.s. at 254. rn
opposing a_motion for surnmary judgment, plaintiffs may not rely on "[m]ele denials or conclusory
statements[,]" Barmag Barmer Maschinenfcbrik AG v. Murata Machinery, Ltd,731 F.2d g3_,
836 (Fed. Cir. 1984).
                        2.    Standard Of Review For Pro   ,Se   Litigants.

            Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
     represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se
     complaints, "however inartfirlly pleaded," are held to "less stringent standards than formal
     pleadhgs drafted by lawyers').

              D.        The Government's April26,2017 Motion For Summary Judgment.

                        1.    The Government's Argument.

            The Govemment argues that it does not have a contractual obligation to distribute $1,000
     to Plaintiff as a member of the Historical Accounting Class. Gov,t Mot. at 2. Although the
     settlement Agreement required the Government to pay money into the Accounting/Trust
     Administrafion Fund and the Trust Land Consolidation Fund, the Settlement Agreement specified
     that the Government would have "no lole in, nor be held responsible or liable in any way lor" the
     distibution of the payments to class members. Gov't Mot. at I L Instead, such payments lvere to
     be handled by GCO, as the Claims Administrator, so that any bleach of contract action concerns
     Plaintiff and GCG, not the Government. Gov't Mot. at I l-12.

          In addition, the Govemment proffered evidence that GcG mailed plaintiff a check for
     $                                                        plaintiffon January g, 201 3. Gov't
         1,000 on December 31,2012, andit was sigred and cashed by
 App'x at Al0l, A104. In addition, the Government proffered evidence showing that plaintiff
 admitted to receiving the $1,000 check inan August l0,20l5letter he sent to GCG. cov't App'x
 at A106. Therefore, there can be no genuine dispute that plaintiff received the money he alliges
 that he is due. Gov't Mot. at 12.

                        2.   PlaintifPsResponse.

                ff responds that the Govemment has a contractual obligation to pay the fi:ll g1,000
              Plainti
 amount to the members of the Historical Accounting class and that the ,.Bad Men,, clause of lhe
 Fort Laramie Treatiesz supports this contention. pl. Resp. at 3-5. plaintiffadds, however, that ne
 did not receive the $1,000 and theevidence submitted by the ooverrment is vague and iikely to
 have been fabricated. Pl. Resp. at 3-5.

                        3.   The Courtts Rerolution.

        "To recover for a breach ofcontract, a pafiy must allege and establish: (l) a valid contract
betweenlhe parties, (2) an obligation or duty arising out ofthe contract, (3) a breach ofthat rluty,
T$ q) lamages caused by the breach." ,sar carlos In. & Drainage Disi. v. united states, gTT
1.2:9
      957,959 (Fed. cir. 1989). The tJnited states court of Appeals for.the Federal circuit has
held that judicial interpretation of oontract language begins *itt, tttr ..plain language of
                                                                                                 the
agreement[.]" Foley v, united states,       ll
                                          F.3d 1.032,1034 (Fed. cir. 1993). Indeed,-coirt, ,..uy
nol look to extrinsic evidence" to interpret unambiguous oonlaot language, see Teg-raradigm
lnvtl , Inc. v. united stares, 465 F.3d 1329, 1338 (Ired. cir. 2006). The Decem6er 9, 20-09
settlement Agreement provides that the Govemment "shau have no roi" in, nor be held
                                                                                        responsible

'1
     Treaty ofFort Laramie, l5 Stat. 635.
 or fiable in any way for, the AccountinglTrust Adminish'ation Fund . . . or the distibulion ofsuch
 monies." Gov't App'x at A27 (emphasis added). As such, the Settlement Agrcement expressly
 relieves the Government fi'om any duty to distdbute any funds from the Accounting/Trust
 Administration Fund to the members of the Historical Accounting Class. Therefore, as a matter
 of law, there is no genuine issue of material fact as to whether the Government is liable to Plaintiff
 for $ I,000.

          Even if the December 9, 2009 Setdement Agreement obligated the Govemment to deliver
 Plaintiff $1,000, summary judgment is warranted, because Plaintiff received the money that he is
 owed. On Decembet 31,2012 GCG mailed Plaintiff a $1,000 check that was signed and cashed
 on January 8, 2013. Gov't App'x at A101, At04. In addition, on August 10, 2015, plaintiff
 informed GCG that he received the $1,000 check. Gov't App'x at A106. plaintiff counters only
 that he did not receive tlle $ 1,000 and suggests that the Government's evidence is fabricated. Pl.
 Resp. at 3-5. Conclusory allegations, however, fail to create a genuine issue of material fact for
 trial' see Bamtag Barger Maschinenfabrik AG,731 F'.2d ar 835-36 (holding that "[m]ere denials
 or conclusory statements ar^e insufficient" to oppose a motion for summary judgnent).

         For these reasons, the court grants the Governmenl's Motion For Summary Judgment.

        E.         Plaintiff s May 24,2017 Motion To Amend And Request For Third party
                   Representation.

                   l.    PlatntiffsArgument,
        Plaintiff asserts that the Govemment and GCG are perp€tuating an "on-Going common
scheme" to "deprive and exploif 'Plaintiffof his conlractuairights by depriving him of-the money
he is cwed as a member of the Historical Accounting class. pl. Resp. at 3, iherefore, plaintiff
requests leave to amend the August 4,2016 complaint to add tori L. castaneda and Ryan Zinke
of GC_G as defendants. Pl. Resp. at4. In addition, plaintiff requests leave to amend the Augusr 4,
2016 complaint to reflect that he was not paid the conect amount of money as a member-of
                                                                                                the
Trust Administration class or as an heir to the estate ofGeorge Godfrey, sr., who was due payment
as a member of the Historical Accounting class and the Trust Adminishation class. pl.hisp.
                                                                                                  at
5
  ' .Therefore, Plaintiff requests leave to amend the August 4, 2016 complaint to initiate a class
action against the Government on these new claims. pl. Resp. at 3. Finalli, plaintiff requests that
Mr. Fourstar be allowed to serve as his Third pady Representative. pl. Resp. at 2.

                 2,     The Government's Response,

 .      fr"-              responds that the courl should reject plaintifps     request to amend the
               -cor9{*ent
ayegs. t +, 2016  complaint, as  it would be futile, because tfie courr does not have jurisdiction to
{11acg9 ctaims against private parlies. see Brown v. united states, 105 F .3d 621, 6z41rea. Cir.
 1997). Plaintiffs claim as an heir to the estate of George Godfrey, sr., cannot create a
action against the Government, because the Governmentls under no obligation                 "uur"of
                                                                                  to make payments
to individual mernbers of the Historical Accounting class or Trust Administration class,
                                                                                               Gov,t
Reply at 4. And, Plaintiffs request to amend the-August 4, 2016 complaint to initiate
                                                                                              a class
action is prohibited as a matter of law, because he is a pro se litjgant. sei Green lJnited
                                                                                    v.         states,
No, l5-988, 201s WL 8529463, at *l (Fed. Ct. Dec, 11, 2015t (citing RCFC Sr.t(a)(3)).
                                                                                                 The
 Government adds that Plaintiffs request to have Mr, Foumtar serve as his counsel was rejected by
 the court. since Mr. Fourstar is not a licensed attornev nor is he a member of Plaintiffs immediate
 family. Gov't Reply at 10.

                         The Court's Resolution.

         RCFC ls(a)(l) affords a party the opportunity to amend a pleading once as a matter of
 course, within twenty-one days after service of the pleading or "if the pleading is on€ to which a
 responsive pleading is required, 2l days after service of a responsive pleading or 21 days after
 service of a motion under RCFC 12(b), (e), or (f), whichever is earlior." Otherwise, a party may
 amend a pleading "only with the opposing palty's written consent or the court's leave." RCFC
 l5(a)(2), In this case, PlaintifPs May 24,2017 Motion To Amend was filed 293 days after
 Plaintiffs service of the August 4, 2016 Complaint. Plaintiff s May 24,2017 Motion To Amend
 also was filed 236 days after the Govemment's September 30, 2016 Motion To Dismiss.
 Therefore, aI this juncture, Plaintiff may amend the August 4, 2016 Complaint only with the
 consent of the opposing party or by the court's leave. See RCFC l5(a)(2), The Government
 opposes PlaintifPs request. Gov't Reply at 7.

      RCFC l5(a)(2) provides that "[t]he court should freely give leave [to amend] whenjustice
 sorequires." Bu1, the court may exercise its discretion to deny leave, if the request evidences
"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virlue
of allowance of the amendment, [or] futilily of amendment." Foman v. oii*,11[ v.3. hg, nz
(1962)- In addition, "[w]hen a party faces the possibility of being denied leave to amend on the
ground of futility, that party must . . . proffer sufficient facts supporting the amended pleading
                                                                                                   that
theclaim could survive a dispositive prehial motion." Kemin Fiods, L.c. ,. pig*"niot vegiates
DelCentroS.A. deC.Y.,464 F.3d 1339, 1354-55 (Fed. Cir.2005).

        The United States Court of Fedelal Claims does not have jurisdiction to adjudicate cases
against private parties. see 28 U.s.c. g 149 i (a)(1); se a also Brown v. united states,105 F.3d 62 l,
 !2! ,(Fed, cir. 1997) ("The Tucker Act gtants the [united states] cout of federal claims
jurisdiction over suits against the united States, not against individual federal
                                                                                  officials.").
Thetefore, amending the August 4, 2016 complaint to add GCG, Ms. castaneda, and Mr. Zinke
as defendanls   would be futile.

        The court also has determined that the Government is under no contractual oblisation to
ensure that individual members of t]le December 9,2009 settlement Agreement receive
                                                                                           iayment.
Therpfore, Plaintiff s proposed amendment to include claims against thi Government that
                                                                                             ie was
not paid in full as a member of the Trust Adminishation Class or as an heir to the estate of
                                                                                             George
Godfrey, Sr., would be futile.

        Finally, RCFC 83.1(a)(3) bars individuals who are not attorneys from representing ,.any
  .
other person" other than the per se litigant or a member of rheir immed.iate ram y,
proposed amendment to file a class action on behalfofsimilarly situated
                                                                                       Haitiri"
                                                                         members ofihe Historical
Accounting class, with Plaintiff representing the class as a pro se litigant would not
                                                                                       sruvive ,,a
dispositive prerrial motion." see Kemin poias, LC., 4@ F3d at 1355I Accordingy,
                                                                                       rtainti'rrs
proposed amendment to transform this case into a class action would
                                                                      be futile.
IV.   CONCLUSION.

       For thcse rcrsos, lhc Oormnrrent's ABrrI26,2017 Motion For S"rnrrrfity ltdgn d it
granbd. ,Sbe RCFC 56. In addition, PlaintilPs l[ay 23, 2017 Motion To Aaund rrd l[otion For
Tbird Prty Rlprc@idive re denied. ,Sba RCPC l5(aX2); 83.1(a)(3).

     Accodingly, ths Clcrk of tbc Uniud States Cout of F€d€r.l Cllins i8 dircotrd to srhr
ldgment on bdulf of the Oovcrnnont,
      ITISSOORDEREI'.


                                                 SUTANG:BRAI}EN
