In the Gnited States Court of Federal Claims

 

No, 19-334C
Filed: September 27, 2019
NOT FOR PUBLICATION
)
LOUIS A. BANKS & DB, a minor child, —)
)
Plaintiffs, }
) Pro se; RCFC 12(b}(1); Subject-Matter
Vv. } Jurisdiction; 12(b}(6); Failure To State A
} Claim; Money-Mandating Source Of
THE UNITED STATES, ) Law; Breach Of Contract; Defauit
) Judgment,
Defendant. )
)

 

Louis A. Banks, et al., Washington, DC, plaintiffs pro se.

Tanya B. Koenig, Trial Attorney, L. Reginald T. Blades, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge
I. INTRODUCTION

Plaintiffs pro se, Louis E. Banks and his minor child, DB, bring this action challenging
the United States Department of Justice’s failure to appear in a civil proceeding before the
Superior Court of the District of Columbia pursuant to the Tucker Act, 28 U.S.C. § 1491. See
generally Compl. As relief, plaintiffs seek to recover $230 million in monetary damages from

the United States. /d at 3.

The government has moved to dismiss this matter for lack of subject-matter jurisdiction
and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and
(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def.
Mot. Plaintiffs have also filed motions to proceed in this matter in forma pauperis, for entry of
default judgment and for summary judgment. See generally Pl. Mot. for Default. For the

reasons discussed below, the Court: (1) GRANTS the government’s motion to dismiss; (2)

 
GRANTS plaintiffs’ motion to proceed in forma pauperis; (3) DENTES-AS-MOOT plaintiffs’
motions for default judgment and for summary judgment; and (4) DISMESSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND!
A. Factual Background

Plaintiffs’ complaint is difficult to follow. But, it appears that plaintiffs ailege that the
United States Department of Justice improperly failed to appear at a civil proceeding before the
Superior Court of the District of Columbia. Compl. at 2. In this regard, plaintiffs attach as an
exhibit to their complaint a final notice of a summons issued to the Department of Justice on
January 30, 2017, related to Louis Banks v. District of Columbia, et al., No. 2017CA006401
(D.C. Super. Ct. 2017). Pl. Ex. at 4. As relief, plaintiffs seek to recover $230 million in

monetary damages from the United States. Compl. at 3.
B. Procedural History

Plaintiffs commenced this action and filed a motion to proceed in forma pauperis on
February 28, 2019. See generally Compl.; Pl. Mot. On April 29, 2019, the government filed a
motion to dismiss this matter pursuant to RCFC 12(b)(1) and (b)(6). See generally Def. Mot.

On May 24, 2019, plaintiffs filed a response and opposition to the government’s motion
to dismiss and motions for a default judgment and for summary judgment. See generally Pl.
Resp. On June 12, 2019, the government filed a reply in support of its motion to dismiss. See
generally Def, Rep.

On June 20, 2019, plaintiffs filed a second motion for default judgment. See generally
Pl. Mot. for Default. On July 2, 2019, the government filed a response and opposition to
plaintiffs’ motions for default judgment. See generally Def. Mot.

These matters having been fully briefed, the Court resolves the pending motions.

 

| The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Comp!.”) and
the exhibits attached thereto (“PI. Ex.”); the government’s motion to dismiss (“Def. Mot.”); and plaintiffs’
response thereto (“PI. Resp.”). Untess otherwise noted herein, the facts recited are undisputed.

 

 
WI. LEGAL STANDARDS
A. Pro Se Litigants

Plaintiffs are proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App’x 919,
926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.
2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to survive
a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to
plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 8S. Ct.
594 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less
stringent standards than formal pleadings drafted by lawyers”); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014). But, there “is no duty on the part of the trial court to create a
claim which [the plaintiff] has not spelled out in his pleading.” Lengen v. United States, 100
Fed. Cl. 317, 328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin
v. United States, 33 Fed. Cl. 285, 293 (1995)).

While “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) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)), And so,
the Court may excuse ambiguities, but not defects, in the complaint. Colbert v. United States,
617 F. App’x 981, 983 (Fed. Cir. 2015); see also Demes v. United States, 52 Fed, Cl, 365, 368
(2002) (“{T]he leniency afforded pro se litigants with respect to mere formalities does not relieve

them of jurisdictional requirements.”).
B. RCFC 12(b)(1)

When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(1), 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. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also RCFC 12(b)(1). But,
plaintiffs bear the burden of establishing subject-matter jurisdiction, and they must do so by a

preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

 

 
(Fed. Cir. 1988). 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 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and “possess[es] only that power authorized by Constitution and statute... .” Kokkonen v.
Guardian Life Ins. Co, of Am., 511 U.S. 375, 377 (1994), The Tucker Act grants the Court
jurisdiction over:

[A]ny 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)(1). The Tucker Act is, however, “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) (alterations original).
And so, to pursue a substantive right against the United States under the Tucker Act, plaintiffs
must identify and plead a money-mandating constitutional provision, statute, or regulation; an
express or implied contract with the United States; or an illegal exaction of money by the United
States. Cabral v. United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir, 2005)); see also Martinez v, United States, 333 F.3d 1295,
1302 (Fed. Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes
if it ‘can fairly be interpreted as mandating compensation for damages sustained as a result of the
breach of the duties [it] impose[s].’” Fisher, 402 F.3d 1167, 1173 (Fed, Cir. 2005) (quoting
United States v. Mitchell, 463 U.S. 206, 217 (1983)).

C. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(b)(6), this Court must also assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s
favor. See Redondo v. United States, 542 ¥. App’x 908, 910 (Fed. Cir. 2013), 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 Atl. Corp. v. Twombly, 550 US. 544, 570
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

 
When the complaint fails to “state a claim to relief that is plausible on its face,” the Court
must dismiss the complaint. /gba/l, 556 U.S. at 678 (citation omitted). 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 upon these facts, to find against the defendant. fd. at
663-64, 678 (“A claim has facial plausibility when the pleaded factual content allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”).
D. Contracts With The United States And RCFC 9()

Lastly, this Court possesses subject-matter jurisdiction to consider breach of contract
claims against the United States based upon an express or implied-in-fact contract. 28 U.S.C. §
1491(a)(1). See Aboo v, United States, 86 Fed. Cl. 618, 626 (2009). But, plaintiffs bear the
burden of proving the existence of a contract with the United States and they must demonstrate
that there is “something more than a cloud of evidence that could be consistent with a contract to
prove a contract and enforceable contract rights.” D & N Bank v. United States, 331 F.3d 1374,
1377 (Fed. Cir. 2003).

To pursue a breach of contract claim against the United States, plaintiffs must have
privity of contract with the United States. Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263
(Fed. Cir. 2005) (citations omitted) (“[T]he ‘government consents to be sued only by those with
whom it has privity of contract.’”); see also Trauma Serv. Grp. v. United States, 104 F.3d 1321,
1327 (Fed. Cir. 1997) (ruling that plaintiff had failed to state a meritorious claim because it had
not identified any particular government representative who entered into the alleged contract).
Plaintiffs must also support their contract claim with well-pleaded allegations going to each
element of a contract; see Crewzers Fire Crew Transp., Inc. v. United States, 741 F.3d 1380,
1382 (Fed. Cir. 2014) (holding that to invoke the jurisdiction of this Court under the Tucker Act,
a plaintiff must present a well-pleaded allegation that its claims arose out of a valid contract with
the United States); see also RCFC 9(k) (“In pleading a claim founded on a contract or treaty, a
party must identify the substantive provisions of the contract or treaty on which the party

relies.”); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 715 (2010).

The requirements for establishing a contract with the United States are identical for
express and implied-in-fact contracts. See Night Vision Corp. v, United States, 469 F.3d 1369,
1375 (Fed. Cir. 2006); Huntington Promotional & Supply, LLC v. United States, 114 Fed. C1.

 

 
760, 767 (2014) (“The elements are the same for an express or implied-in-fact contract... .”).
Specifically, plaintiffs must show: (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the part of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp., 104 F.3d at
1325. In this regard, a government official’s authority to bind the United States must be express
orimplied. Roy v. United States, 38 Fed. Cl. 184, 188-89 (1997), dismissed, 124 F.3d 224 (Fed.
Cir. 1997). And so, “the [g]overnment, unlike private parties, cannot be bound by the apparent

authority of its agents.” /d. at 187.

In addition, RCFC 9(k) requires that a party identify the substantive provisions of the
contract on which the party relies when pleading a claim founded on a contract with the United
States. RCFC 9(k). This rule ensures that the Court knows the relevant provisions of a contract
to render a decision on a breach of contract claim. Gonzalez-McCaulley Inv. Grp., Inc., 93 Fed.

Cl. at 715.
IV. LEGAL ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction
and for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(1) and
(b)(6), upon the grounds that plaintiffs’ claims are not based upon an express or implied-in-fact
contract with the government, or a money-mandating provision of law. See generally Def. Mot.
In their response and opposition to the government’s motion to dismiss, plaintiffs argue that the
Court possesses subject-matter jurisdiction to consider their claims, because the Court may
consider monetary claims that arise under the United States Constitution. Pl. Resp. at 1.
Plaintiffs have also moved to proceed in this matter in forma pauperis and for default judgment
and for summary judgment pursuant to RCFC 55 and 56. See generally Pl. Mot. to Proceed In

Forma Pauperis, see generally P|. Resp.

For the reasons discussed below, a plain reading of the complaint makes clear that
plaintiffs have not shown that any of their claims fall within the Court’s limited jurisdiction
under the Tucker Act. Plaintiffs have, however, satisfied the statutory requirements to proceed
in this matter without paying the Court’s filing fee. And so, the Court: (1) GRANTS the

government’s motion to dismiss; (2) GRANTS plaintiffs’ motion to proceed in forma pauperis;

 
(3) DENIES-AS-MOOT plaintiffs’ motions for default judgment and for summary judgment;
and (4) DISMISSES the complaint.
A. The Court Does Not Possess Subject-Matter
Jurisdiction To Consider Plaintiffs’ Claims

The government persuasively argues that the Court must dismiss this matter for lack of

subject-matter jurisdiction for two reasons.
1. The Court May Not Consider Plaintiffs’ Statutory Claims

As an initial matter, plaintiffs have not identified a money-mandating source of law to
support their claims against the government. See generally Pl. Mot. To pursue a substantive
right against the United States under the Tucker Act, plaintiffs must identify and plead a money-
mandating constitutional provision, statute, or regulation; an express or implied contract with the
United States; or an illegal exaction of money by the United States. Cabral v. United States, 317
F, App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302 (Fed. Cir, 2003), The
Federal Circuit has held that “a statute or regulation is money-mandating for jurisdictional
purposes if it ‘can fairly be interpreted as mandating compensation for damages sustained as a
result of the breach of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (quoting United
States v. Mitchell, 463 U.S, 206, 217 (1983)).

In the complaint, plaintiffs appear to challenge the United States Department of Justice’s
failure to appear in a civil proceeding before the Superior Court of the District of Columbia,
Compl, at 2. To support this claim, plaintiffs refer to two federal statutes—20 U.S.C. § 7101
(addressing education as a part of the Safe and Drug-Free Schools and Communities Act) and 28
U.S.C. § 2508 (addressing government counterclaims brought in the United States Court of
Federal Claims). Compl. at 1; Pl, Ex. at 1. But, neither of these statutes are moncy-mandating,
nor do they appear to be related to plaintiffs’ claims. Jd Because plaintiffs fail to identify a
money-mandating source of law to support their claims, the Court must dismiss these statutory
claims for lack of subject-matter jurisdiction. Cabral, 317 F. App’x at 981 (citing Fisher, 402
F.3d at 1172); RCFC 12(b)(1).

The Court must also dismiss plaintiffs’ civil rights claim. In the complaint, plaintiffs

refer to the “Civil Rights Act of 1964” and allege that “[the Department of Education and] DOJ

 

 
executive department are responsible for enforcing federal civil rights laws... .” Compl. at 1.
To the extent that plaintiffs seek to bring a civil rights claim in this matter, the Court may not
consider such a claim under the Tucker Act. It is well-established that this Court does not
possess jurisdiction over civil rights claims. See e.g., Jones v. United States, 104 Fed. Cl, 92, 98
(2012) (explaining that the Court of Federal Claims has no jurisdiction over claims based on,
among other causes of action, alleged “violations of . . . civil rights”). And so, the Court must

also dismiss plaintiffs’ civil rights claim for lack of subject-matter jurisdiction. RCFC 12(b)(1).
2. Plaintiffs Fail To Establish A Contract With The United States

To the extent that plaintiffs allege a breach of contract claim in the complaint, the Court
must also dismiss this claim because plaintiffs fail to establish the existence of an express or
implied-in-fact contract with the United States. D & N Bank v. United States, 331 F.3d 1374,
1382 (Fed. Cir. 2003) (holding that plaintiffs bear the burden of proving the existence of a
contract with the United States.). As discussed above, plaintiffs allege that the United States
Department of Justice improperly failed to appear at a civil proceeding before the Superior Court
of the District of Columbia. Compl. at 2, But, plaintiffs’ complaint is devoid of any facts to
show that they have entered into a contract with the government regarding such an obligation.
See generally Compl. And so, the Court must dismiss plaintiffs’ breach of contract claim for
lack of subject- matter jurisdiction. RCFC 12(b)(1); see Aboo v. United States, 86 Fed, Cl. 618,
626 (2009).

B. The Court Denies Plaintiffs’ Motions

In addition, the Court must DENY plaintiffs’ pending motions for default judgment and
for summary judgment. In their response and opposition to the government’s motion to dismiss,
plaintiffs appear to move for a default judgment against the government and for summary
judgment in their favor. Pl. Resp. at 1-2. Plaintiffs have also filed a separate motion for default
judgment. See generally Pl. Mot. for Default. Because the Court has determined that it does not
possess subject-matter jurisdiction to consider any of plaintiffs’ claims, the Court denies these
motions as moot. See Wojtczak v. United States, No. 12-499C, 2012 WL 4903025, at *4 (Fed.
Cl. Oct. 17, 2012) (“Because plaintiff still has not raised allegations over which this court has

jurisdiction, the court denies these motions as moot.”).

 
C, Plaintiffs May Proceed In Forma Pauperis

As a final matter, the Court GRANTS plaintiffs’ motion to proceed in this matter without
paying the Court’s filing fee. Plaintiffs have moved to proceed in this matter in forma pauperis.
See generally Pl. Mot. to Proceed Jn Forma Pauperis, This Court may authorize the
commencement of a lawsuit without prepayment of fees when plaintiffs submit an affidavit
including a statement of all assets, a declaration that plaintiffs are unable to pay the fees, and a
statement of the nature of the action and a belief that plaintiffs are entitled to redress. See 28
U.S.C. § 1915(a)(1); see also id. § 2503(d). In this case, plaintiffs submitted an application for
leave to proceed in this matter in forma pauperis indicating that Mr. Banks is currently
unemployed. See Pl. Mot. to Proceed in Forma Pauperis. And so, the Court concludes that
plaintiffs have satisfied the statutory requirements to proceed in this matter fn forma pauperis for

the purpose of resolving the government’s motion to dismiss.
V. CONCLUSION

In sum, the most generous reading of the complaint makes clear that the Court does not
possess subject-matter jurisdiction to consider any of plaintiffs’ claims. Plaintiffs have,
however, satisfied the statutory requirements to proceed in this matter without paying the Court’s

filing fee.
And so, for the foregoing reasons, the Court:
1. GRANTS the government’s motion to dismiss;
2. GRANTS plaintiffs’ motion to proceed in forma pauperis;

3. DENIES-AS-MOOT plaintiffs’ motions for default judgment and for summary

judgment; and
4. DISMISSES the complaint.

The Clerk shall enter judgment accordingly.

 
Each party shall bear its own costs.

IT IS SO ORDERED.

 

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