OR|G|NAL

In the United States Court of F ederal Claims

No. 14-206 C
Filed: October 1, 2014  
***$************************************ y
* UCT - 1 2014
*
U.S. COUF{T OF
DENNIS SHIPMAN, * F
* EDEFIAL CLA{MS
plaintiff pro Se, >z= .lurisdiction;
»»= Motion to Dismiss, RCFC l2(b)(l),
v. * 12(1>)(6);
»x= Pro Se;
THE UNITED STATES, >l= Summary Judgrnent, RCFC 56.
*
Defendant. *
*
*

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Dennis Shipman, Baltimore, Maryland, Plaintiff, pro se.

Stuart F. Delery, United States Department of Justice, Acting Assistant Attorney General,
Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
I. RELEVANT FACTUAL BACKGROUND.l

ln November 2013, the General Services Administration ("GSA") conducted an online
auction of 29 Hewlett-Packard laser printers. Gov’t Resp. App. at 1-4. The GSA informed
successful bidders via email and required full payment to be submitted within two business days.
Gov’t Resp. App. at 6. The GSA also required that successful bidders remove any purchased
property from the GSA within 10 business days. Gov’t Resp. App. at l0.

Plaintiff submitted a bid for the printers. On Novernber 19, 2013, the GSA informed
Plaintiff via email that he was a winning bidder and must submit full payment within two
business days from the date and time the email notification was sent to him. Gov’t Resp. App. at
14-19. The GSA also informed Plaintiff that he must remove the printers within 10 business
days from the date and time he received the email notification Gov’t Resp. App. at 14-l9.

1 The relevant facts discussed herein were derived from the March 13, 2014 Complaint,
unless otherwise specified

After the 10 days passed, contract officers and property custodians contacted Plaintiff, requesting
that he remove the printers. Plaintiff requested a "reasonable accommodation" and extension,
but the GSA did not respond.

The GSA terminated Plaintiff" s contract, disposed of the printers, and retained Plaintiff’ s
$45 payment. During this time, a contract officer in Regi0n 3 allegedly appended derogatory
information to Plaintiff’s account. Plaintiff subsequently asked the GSA Office of the Inspector
General to look into the matter, without response.

II. PROCEDURAL HISTORY.

Plaintiff states that he filed a Complaint in the United States District Court for the Eastern
District of Pennsylvania on an unspecified date but that it was returned unfiled.

On March l3, 2014, Plaintiff filed a Complaint in the United States Court of Federal
Claims alleging: a taking of Plaintiff’s private property for public use without just compensation
under the Fifth Amendment of the Constitution of the United States; a violation of Plaintiff" s
constitutional right to "equal access" pursuant to 42 U.S.C. § l2l0l et seq.; and a violation of the
Due Process Clause of the Fifth or Fourteenth Amendment, because the GSA determined that
Plaintiff was in default without a hearing. The Complaint seeks monetary damages and an
injunction to prohibit the Government from disseminating derogatory information about
Plaintiff’ s account. On the same day, Plaintiff also filed an Application to Proceed In Forma
Pauperis, which the court granted.

On May 12, 2014, Defendant (the "Government") filed a Motion to Dismiss or, in the
alternative, Motion for Summary Judgment, pursuant to RCFC Rules l2(b)(l), l2(b)(6) and 56

("Gov’t Resp." and "Gov’t Resp. App." l~3 8).
III. DISCUSSION.
A. Jurisdicti0n.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. § l49l, "to render judgment upon 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. § l49l(a)(l). 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).

Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify
and plead 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 . . . ."); see also Fz'sher v. United States, 402 F.3d ll67,

1172 (Fed. Cir. 2005) (en banc) ("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. . . . [T]hat source must be ‘money-mandating."’). Specifically, a plaintiff must
demonstrate that the source of substantive law upon which he relies "can fairly be interpreted as
mandating compensation by the Federal Government." United States v. Mz`tchell, 463 U.S. 206,
216-217 (1983) (quoting Testan, 424 U.S. at 400). And, the plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence. See Reynola’s v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) ("[O]nce the [trial] court’s subject matter
jurisdiction [is] put in question . . . . [the plaintiff] bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence.").

B. Standard Of Review F0r Pro Se Litigants.

The pleadings of a pro se plaintiff 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 inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). lt has been the tradition of this court to examine the record "to
see if [a pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. United States,
412 F.2d 1285, 1292 (Ct. Cl. l969). Nevertheless, while the court may excuse ambiguities in a
pro se plaintiff’ s cornplaint, the court "does not excuse [a complaint’s] failures."
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

C. Standard Of Review For A Motion T0 Dismiss Pursuant T0 RCFC 12(b)(1).

A challenge to the United States Court of Federal Claims’ "general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] l2(b)(l) motion."
Palmer v. United States, l68 F.?>d l3l0, 1313 (Fed. Cir. 1999); see also RCFC l2(b)(l)
(allowing a party to assert, by motion, "lack of subject-matter jurisdiction"). When considering
whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to
assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences

in plaintiffs favor." Henke, 60 F.3d at 797.
D. Standard Of Review F0r A Motion T0 Dismiss Pursuant T0 RCFC 12(b)(6).

A challenge to the United States Court of Federal Claims’ "[ability] to exercise its
general power with regard to the facts peculiar to the specific claim . . . . is raised by a [Rule]
l2(b)(6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC l2(b)(6) (allowing a party to
assert, by rnotion, "failure to state a claim upon which relief can be granted"). When considering
whether to dismiss an action for failure to state a claim, the court must assess whether the
complaint "allege[s] facts ‘plausibly suggesting (not merely consistent with)’ a showing of
entitlement to relief." Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)); see also Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) ("[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss."). In other words, "[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678. In determining factual plausibility, the

court engages in "context-specific task" that draws upon "its judicial experience and common
sense." Iqbal, 550 U.S. at 679.

As a general matter, the court reviews the facts in a favorable light to the plaintiff. See
Bank of Guam, 578 F.3d at 1326. Nevertheless, "[f]actual allegations must be enough to raise a
right to relief above the speculative level . . . on the assumption that all the allegations in the
complaint are true." Twombly, 550 U.S. at 555 (internal citations ornitted). But see Iqbal, 556
U.S. at 678 ("[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions."). Thereafter, "if it appears ‘beyond doubt that
[plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief[,]"’
then this court should dismiss the action. Davis v. Monroe Cnty. Ba'. of Ea'uc., 526 U.S. 629, 654
(1999) (quoting Conley v. Gz`bson, 355 U.S. 41, 45~46 (1957)).

E. Standard Of Review For Summary Judgment.

On a motion for summary judgment, the moving party must establish that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. See Duramed Pharms., Inc. v. Pacz'dock Labs., Inc., 644 F.3d 1376, 1380 (Fed. Cir. 2011);
see also RCFC 5 6(a), (c). Only genuine disputes of material fact that might affect the outcome
of the suit preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) ("As to materiality, the substantive law will identify which facts are material.
Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted."). The "existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment." Id. at
247-48. "[C]ourts are required to view the facts and draw reasonable inferences ‘in the light
most favorable to the party opposing the [summary judgment] motion."’ Scott v. Harris, 550
U.S. 372, 378 (2007) (quoting Um`ted States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per
curiam); Saucier v. Kaz‘z, 533 U.S. 194, 201 (2001)).

F. The G0vernment’s May 12, 2014 Motion T0 Dismiss Or, In The Alternative,
Motion For Summary Judgment.

1. The Government’s Argument.

The Governrnent moves to dismiss Plaintiff’ s March 13, 2014 Complaint, as it fails to
state a claim on which relief may be granted. Gov’t Resp. at 6. The Government claims that
Plaintiff s asserted takings claims properly should be characterized as a breach of contract
instead of a "‘taking [of P]laintiff’s private property for public use without just compensation,"
because Plaintiff failed to "allege some rights existing independently of the auction contract in
this case." Gov’t Resp. at 6. lf Plaintiff’ s claims properly are characterized as a breach of
contract, the Complaint fails to state a claim on which relief may be granted, because the
Government did not breach any contract with Plaintiff. Gov’t Resp. at 7. Plaintiff failed to
remove the printers from Government property, even after afforded extensions of time. Pursuant
to the auction’s terms and conditions, the GSA cancelled its contract with Plaintiff and returned
the $45 payment to him. Gov’t Resp. at 7. Therefore, the Complaint fails to assert any facts

"that would entitle [Plaintiff] to a legal remedy in this case" and should be dismissed. Gov’t
Resp. at 7.

In the event that the court does not dismiss Plaintiff’s complaint for failure to state a
claim upon which relief may be granted, the court should grant summary judgment in the
Government’s favor, because "there is no genuine dispute as to any material fact and the
Government is entitled to judgment as a matter of law" under RCFC 56(c). Gov’t Resp. at 7.
There is no dispute that Plaintiff did not remove the printers by December 6, 2013 and was in
default of the terms of the auction contract that prompted the GSA to cancel the contract. Gov’t
Resp. at 8. The Govemment also claims that there is no genuine dispute that the GSA returned
the $45 payment to Plaintiff. Gov’t Resp. at 8. The GSA "completed the necessary
documentation to refund [Plaintiff s] $45 payment, and credited that payment back to
[Plaintiff’s] credit card" on December 6, 2013, the same day the GSA cancelled the auction
contract. Gov’t Resp. at 8. Therefore, there is no genuine dispute as to any material fact. Gov’t
Resp. at 8.

Finally, the court does not have subject matter jurisdiction to entertain claims based upon
the Due Process Clause of the Fifth Amendment, the Due Process Clause or the Equal Protection
Clause of the Fourteenth Amendment, or other alleged violations of the United States
Constitution. Gov’t Resp. at 8.

2. The Plaintiff’ s Response.
Plaintiff did not respond to the Government’s May 12, 2014 Motion.
3. The C0urt’s Resolution.

a. The March 13, 2014 Complaint Fails T0 Allege A Breach Of A
Government C0ntract.

In applying both RCFC 12(b)(1) and 12(b)(6), the court must "assume all factual
allegations [of the complaint] to be true and . . . draw all reasonable inferences in plaintiffs
favor." Henke, 60 F.3d at 797. Even if the court assumes that a plaintiff’s factual submissions
are true, the complaint still has not alleged sufficient facts to support a reasonable inference that
a plaintiff is owed any monetary damages.

The l\/[arch 13, 2014 Complaint improperly characterizes one of the alleged claims
against the Government as a takings claim. Compl. 1111 1, 16. As a threshold matter, a takings
claim does not arise under a government contract, because "the government is acting in its
proprietary rather than its sovereign capacity, and because remedies are provided by the
contract." St. Chrz`stopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed. Cir. 2008)
(quoting Sun Oz`l C0. v. United States, 572 F.2d 786, 818 (Ct. Cl. 1978) ("[T]he concept of a
taking as a compensable claim theory has limited application to the relative rights of party
litigants when those rights have been voluntarily created by contract.")); see also Barlow &
Haun, Inc. v. United States, 87 Fed. Cl. 428, 439 (2009) ("[W]hen the Government enters into a
contract in a commercial capacity, the concept of a Fifth Amendment taking has limited
applicability."). As Plaintiff s alleged property rights in GSA’s printers arose from the terms of
the auction, the proper cause of action is a breach of contract claim, not a taking.

Even assuming all factual allegations of the Complaint are true, the GSA did not breach
the auction contract, as the terms and conditions clearly provide that successful bidders must
submit full payment within two business days and must remove any purchased property from the
GSA within 10 business days. Gov’t Resp. at 3. Plaintiff failed to remove the printers from the
GSA’s premises, even after being granted numerous extensions of time. Under these
circumstances, the auction contract afforded GSA the right to cancel the contract with Plaintiff.
Gov’t Resp. at 7.

b. The United States Court Of Federal Claims Does Not Have
Subject Matter Jurisdiction T0 Adjudicate The Constitutional
Claims Or The Equal Access Claim Asserted In The March 13,
2014 Complaint.

The Complaint also alleges that the Government violated Plaintiff s constitutional right to
equal access, pursuant to 42 U.S.C. 12101 et seq., and due process under the Fifth and
Fourteenth Amendment when the GSA determined that Plaintiff was in default without a
hearing. Compl. 1[11 6-7, 17-18. The United States Court of Federal Claims’ authority to grant
equitable remedies is limited to relief that is "an incident of and collateral to" a monetary
judgment. See 28 U.S.C. § 149l(a)(2); see also Fisher v. United States, 402 F.3d 1167, 1173
(Fed. Cir. 2005) ("[T]he determination that the source is money-mandating shall be
determinative both as to the question of the court’s jurisdiction and thereafter as to the question
of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of
action.").

Therefore, the court does not have subject matter jurisdiction over claims alleging a
violation of the Due Process Clause of the Fifth or Fourteenth Amendment, because neither
constitutional provision requires that payment of money by the Government. See LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); see also Collins v. United States, 67 F.3d
284, 288 (Fed. Cir. 1995) ("[T]he due process clause does not obligate the government to pay
money damages.").

In addition, the court does not have subject matter jurisdiction over claims alleging a
violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 1210l et seq.,
because "the ADA is not a money-mandating source of law." Allen v. United States, 546 F.
App’x 949, 951 (Fed. Cir. 2013) (citing Searles v. United States, 88 Fed. Cl. 801, 805 (2009)).

The declaratory and injunctive relief sought by Plaintiff is not "an incident of and
collateral to" a monetary judgment. 28 U.S.C. § 149l(a)(2). Therefore, the court does not have

jurisdiction to adjudicate such claims when they are the "primary focus of the plaintiffs suit."
Rice v. United States, 31 Fed. Cl. 156, 164 (1994), ajj"d 48 F.3d 1236 (Fed. Cir. 1995). As such,
Plaintiff’s constitutional and Section l2l0l claims must be dismissed.

IV. CONCLUSION.

For these reasons, the G0vernment’s May 12, 2014 Motion to Dismiss is granted. See
RCFC 12(b)(1). Accordingly, the Clerk is directed to dismiss the March 13, 2014 Complaint.

IT IS SO ORDERED.

SUSA G. BRADEN
Judge

