     In the United States Court of Federal Claims
                                          No. 12-773 C
                                      Filed: June 25, 2013

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                                      *
MERLE RICHARD SCHMIDT,                *
                                      *                   Jurisdiction;
      Plaintiff, pro se,              *                   Motion to Dismiss, RCFC 12(b)(1);
                                      *                   Pro Se;
v.                                    *                   U.S. CONST. amends. I, VII, IX.
                                      *
THE UNITED STATES,                    *
                                      *
      Defendant.                      *
                                      *
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Merle Richard Schmidt, Deep River, Iowa, Plaintiff, pro se.

Gregory Daniel Page, United States Department of Justice, Environment and Natural Resources
Division, Natural Resources Section, Washington, D.C., Counsel for the Government.

                  MEMORANDUM OPINION AND FINAL JUDGMENT

Braden, Judge.

I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY.

        On November 13, 2012, Merle Richard Schmidt (“Plaintiff”) filed a Complaint
(“Compl.”) in the United States Court of Federal Claims seeking a declaratory judgment that he
is the owner of a certain plot of land located in Iowa. Compl. ¶¶ V.2-3. The Complaint alleges
that Plaintiff is entitled to this land, because he is the trustee of River Valley Family Trust
(“Trust”), but “was subjected to armed ouster from the land” for “non-derivative color of title
sold in fraud at tax sale.” Compl. ¶¶ IV.16, 23-24. The Complaint further alleges that the Iowa
County Sheriff was scheduled to serve as magistrate to adjudicate this issue, but failed to appear
at the proceeding. Compl. ¶¶ IV.16, 27-28. The Complaint also alleges that “[t]he people did on
their own volition” convene a jury and found that title to the land belonged to the Trust. Compl.
¶¶ IV.29-30. The Complaint further alleges that Plaintiff sought to have the Sheriff enforce this
determination, but was prevented from doing so by the intervention of Iowa County’s Attorney.
Compl. ¶ IV.34. Plaintiff next attempted to enforce his claim in the United States District Court
for the Northern District of Iowa, by filing an Action of Ejectment, but that court “hi-jack[ed]
and abrogate[d]” that effort. Compl. ¶¶ IV.35-36. Consequently, the November 13, 2012
Complaint alleges that the United States District Court’s action violated the Seventh Amendment
of the United States Constitution and that Plaintiff is entitled to possession of the land. Compl. ¶
V.3.

        The November 13, 2012 Complaint also alleges that Plaintiff is the owner of a land
patent, through which the Government is obligated under contract to afford Plaintiff possession
of the land. Compl. ¶¶ I.2, V.2. The alleged actions of the United States District Court for the
Northern District of Iowa, and the State of Iowa, had the effect of impairing the obligation of this
contract in contravention of the United States Constitution. Compl. ¶¶ I.1, IV.40. Plaintiff is
entitled to declaratory judgment of entitlement to the land at issue, because a patent is the highest
form of title. Compl. ¶ V.2.

        Along with his November 13, 2012 Complaint, Plaintiff submitted Exhibit A, containing
an “Affidavit of Claim against the United States,” and two letters addressed to the United States
President and Attorney General. In addition, Plaintiff provided Exhibits 1 and 2, Abstracts of
Title for the land in question.

        The court granted the Government’s December 11, 2012 and February 6, 2013 Motions
For Enlargement Of Time, because of the Government’s difficulty in finding and communicating
with the Plaintiff. On February 25, 2013 the Government filed a Motion To Dismiss (“Gov’t
Mot.”), arguing lack of subject matter jurisdiction and, alternatively, failure to state a claim for
relief, pursuant to RCFC 12(b)(1) and 12(b)(6), respectively. On March 25, 2013, Plaintiff
submitted a Cross Motion In Response To Defendant’s Motion To Dismiss Under RCFC
12(b)(1) And 12(b)(6) (“Pl. Resp.”). On April 25, 2013 the Government filed a Consolidated
Opposition to Plaintiff’s Cross-Motion And Reply In Support Of Defendant’s Motion To
Dismiss (“Gov’t Reply”), to which Plaintiff replied on May 6, 2013 (“Pl. Reply”).
II.    DISCUSSION.

       A.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. § 1491, “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. § 1491(a)(1). 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. 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 Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a

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plaintiff must identify a separate source of substantive law that creates the right to money
damages” (i.e., the source must be ‘money-mandating’)). Specifically, a plaintiff must
demonstrate that the source of substantive law upon which he relies “can be fairly interpreted as
mandating compensation by the Federal Government.” United States v. Mitchell, 463 U.S. 206,
216 (1983). And, the plaintiff bears the burden of establishing jurisdiction by a preponderance
of the evidence. See Reynolds 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 For 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”). It 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. 1969). Nevertheless, while the court may excuse ambiguities in a
pro se plaintiff’s complaint, 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 To Dismiss Pursuant To 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] 12(b)(1) motion[.]”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every
defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, or
third-party claim, shall be asserted in the responsive pleading thereto if one is required, except
that the following defenses may at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter[.]”). 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 plaintiff’s favor.” Henke, 60 F.3d at
797.

        D.      The Government’s February 25, 2013 Motion To Dismiss.

                1.      The Government’s Argument.
        The November 13, 2012 Complaint does not make allegations sufficient to establish
subject matter jurisdiction. Gov’t Mot. at 1. Specifically, the Complaint cites no constitutional
provision, federal law, or contract that provides Plaintiff with a substantive right to money
damages. Gov’t Mot. at 7. Article I, Section 10 of the Constitution prohibits state action, not
federal action. Gov’t Mot. at 7. Likewise, the Ninth Amendment to the Constitution does not
establish a right to money damages. Gov’t Mot. at 7-8. Nor is the Government a party to any
alleged contracts or land patents. Gov’t Mot. at 8. Plaintiff’s exhibits show only that the United
States conveyed the land at issue to private parties in either 1879 or 1913, and never reacquired
it. Gov’t Mot. at 8-9. In addition, it appears that Plaintiff acquired all the land at issue from

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private parties, not the United States, either through probate or other transactions. Gov’t Mot. at
9-10. Moreover, the land at issue is now occupied by a private party, through a purchase at a tax
sale to which the United States was not a party. Gov’t Mot. at 11. As such, the November 13,
2012 Complaint should be dismissed.
        Plaintiff’s March 25, 2013 Cross Motion raises a takings claim not alleged in the
November 13, 2012 Complaint. The Government replies that the March 25, 2013 Cross Motion
fails to allege that the land was “occupied or otherwise harmed by the authorized actions of
federal employees, federal agencies, or federal instrumentalities.” Gov’t Reply at 4-5. Neither
the November 13, 2012 Complaint, nor the March 25, 2013 Cross Motion establish any contract
with the United States, or that any federal entity violated a constitutional provision or federal
statute. Gov’t Reply at 6. Neither Plaintiff nor the Trust was a party to any of the claimed land
patents referenced to establish jurisdiction. Gov’t Reply at 5-6. And, the two letters sent to
President Obama do not establish jurisdiction because they are not contracts with the United
States. Gov’t Reply at 6.
        In the alternative, the Government asserts that the November 13, 2012 Complaint fails to
state a claim upon which relief can be granted, because the majority of Plaintiff’s claims were
mere legal conclusions, and the court does not have jurisdiction over the allegations that remain.
Gov’t Mot. at 11-13.

               2.      The Plaintiff’s Response.
        Plaintiff seeks a judgment granting the Trust possession of the land and “costs” in the
amount of $10,730,000. Pl. Resp. at 2-3. Plaintiff’s right to $10,730,000 was “conclusively
established administratively” by the failure of the United States to respond to two letters sent to
it. Pl. Resp. at 2-3; see Pl. Resp., Exhibit A (copies of letters addressed to President Barack
Obama c/o Eric Holder, stating that the United States is liable for $10,730,000 in damages for its
role in abrogating the obligation of land patents and sustaining ongoing racketeering activity in
connection with the land).
        The March 25, 2013 Cross Motion “specifically invokes the First, Seventh and Ninth
Articles of Amendment to the Constitution while invoking the organic law.” Pl. Resp. at 9; Pl.
Reply at 5. In addition, Plaintiff asserts that the patents are binding contracts. Pl. Reply at 8.
The March 25, 2013 Cross Motion also raises a takings claim for the first time, stating that “[t]he
defendant has unlawfully taken land from River Valley Family Trust for public use without
paying a just compensation therefor.” Pl. Resp. at 12.
        Plaintiff lists “the ‘gold and silver coin’ clause” (art. I, § 10, cl. 1) as a money-mandating
constitutional provision, but does not make clear how it relates to his case. Pl. Reply at 5; see
also Exhibit 1 at 3 (documenting the history of title for the land). Because the federal district
judge who dismissed Plaintiff’s case in the United States District Court for the Northern District
of Iowa is paid by the Government, there is a basis for jurisdiction. Pl. Reply at 7. Plaintiff
further asserts that the State of Iowa is an instrumentality of the Government for the purpose of
28 U.S.C. § 1491, and therefore the Government has denied the Plaintiff his Seventh
Amendment rights. Pl. Reply at 7-8. Plaintiff also contends that the United States District Court
abrogated Plaintiff’s Action for Ejectment and unlawfully “re-examine[d facts tried by a jury]


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other than according to the rules of the common law,” in violation of the Seventh Amendment.
Pl. Reply at 7.

               3.      The Court’s Resolution.

      Plaintiff’s pleadings can be read to assert jurisdiction on the basis of various acts of
Congress, alleged contracts, and constitutional violations. Each of these is considered in turn.

                       i.     The United States Court Of Federal Claims Does Not Have
                              Jurisdiction To Adjudicate Claims Against A Federal District
                              Court Judge.
        Despite Plaintiff’s claims to the contrary (Compl. ¶¶ III.9-10.), the United States
citizenship of the members of the Iowa courts does not extend to this court jurisdiction over
Plaintiff’s claims against the United States. Plaintiff’s dispute with the United States District
Court for the Northern District of Iowa is not adjudicable in the United States Court of Federal
Claims, and in any event, is not a contractual relationship. The decisions of a Federal District
Court Judge in denying Plaintiff’s claims cannot create a claim over which the United States
Court of Federal Claims has jurisdiction. See Brown v. United States, 105 F.3d 621, 624 (Fed.
Cir. 1997) (“The Tucker Act grants the Court of Federal Claims jurisdiction over suits against
the United States, not against individual federal officials.”).
                       ii.    Acts Of Congress Have Not Established A Contract Between
                              Plaintiff And The United States.
        The unspecified “Acts of Congress” to which Plaintiff refers (Pl. Reply at 2) do not create
contracts allowing for a right of action against the Government. Legislation providing for the
sale of federal lands merely authorized those sales to private citizens, and set their terms. See,
e.g., Act of April 24, 1820, ch. 51, 3 Stat. 566. Although there was a contractual relationship
involving the United States and the original patent grantee, there is no current contractual
relationship or dispute between the United States and Plaintiff. See Exhibit 2 at 3 (showing that
all land at issue was sold to, and remains under the ownership of, private parties). The United
States Court of Federal Claims, therefore, does not have jurisdiction to adjudicate claims on
these land patents.
                       iii.   A Fifth Amendment Taking Has Not Occurred.
       The Tucker Act confers jurisdiction on the United States Court of Federal Claims in
takings cases. See 28 U.S.C. § 1491(a)(1) (providing jurisdiction for “any claim against the
United States founded . . . upon the Constitution”); see also Lion Raisins, Inc. v. United States,
416 F.3d 1356, 1362 (“[The Tucker Act] includes on its face all takings claims against the
United States.”). The November 13, 2012 Complaint, however, does not allege a takings claim,
and even considering the allegation in the responsive brief, Plaintiff does not suggest any federal
involvement with the land at issue. See Pl. Resp. at 12. Plaintiff argues only that private citizens
and the State of Iowa were involved in the “taking” of his property. See Pl. Resp. at 12. As
such, Plaintiff misstates the Government’s role. See Pl. Resp. at 12 (“The defendant has
unlawfully taken land from River Valley Family Trust for public use without paying a just
compensation therefor.”). Under certain circumstances, a private citizen may have a takings

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claim against a state. See Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897)
(incorporating eminent domain under the Fourteenth Amendment). The United States Court of
Federal Claims, however, only has jurisdiction over takings claims against the federal
government.
                       iv.     None Of Plaintiff’s Constitutional Claims Provide A Money-
                               Mandating Source Of Law.
       Plaintiff “invokes” the First Amendment, but does not expand on its applicability. Pl.
Resp. at 9. The First Amendment, however, does not create a right to money damages. See U.S.
CONST. amend I; United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (“[T]he literal
terms of the first amendment neither explicitly nor implicitly obligate the federal government to
pay damages.”). Therefore, it cannot serve as a basis for jurisdiction in the United States Court
of Federal Claims. See Mitchell, 463 U.S. at 216 (1983) (holding that the claim must be one for
money damages against the United States to be “cognizable under the Tucker Act”).
        The March 25, 2013 Cross Motion alleges a violation of Article 1, Section 10 of the
United States Constitution, with references to the Contracts Clause and the “gold and silver coin
clause.” See U.S. CONST. art. 1, § 10, cl. 1; Pl. Resp. ¶ III.28. These constitutional provisions,
however, place limits on the states, but do not create any money-mandating rights vis-à-vis the
United States. See, e.g., Pension Ben. Guar. Corp. v. R.A. Gray & Co., 476 U.S. 717, 732 & n.9
(1984) (“It could not justifiably be claimed that the Contract Clause applies . . . to actions of the
National Government.”).

        Next, Plaintiff argues there has been an abridgement of his Seventh Amendment rights.
See Pl. Reply at 8 (stating that United States District Court Judge Linda Reade “abrogated the
authority of Amendment VII”). The court recognizes that the Seventh Amendment provides the
right to a trial by jury in certain cases where damages can be awarded. See generally Feltner v.
Columbia Pictures Television, 523 U.S. 340, 346 (1998) (recognizing right to a jury trial in
copyright infringement suits). But the Seventh Amendment does not provide a right of action to
recover damages from the United States where a jury verdict is overturned. See U.S. CONST.
amend. VII; Jan’s Helicopter Serv. Inc. v. F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (holding
that jurisdiction in the United States Court of Federal Claims requires a money-mandating source
for the claim). Since the Seventh Amendment does not contain a money-mandating provision, it
cannot serve as a basis for jurisdiction in the United States Court of Federal Claims. See Fisher,
402 F.3d at 1174 (requiring a “fair inference” that there is a money-mandating jurisdictional
basis).
        Plaintiff also argues that the Ninth Amendment is applicable, but does not explain why.
Pl. Resp. at 9. The Ninth Amendment states that, “[t]he enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others retained by the people.” U.S.
CONST. amend. IX. The Amendment contains no money-mandating provision, and therefore
cannot serve as a basis for jurisdiction. See, e.g., Fry v. United States, 72 Fed. Cl. 500, 508
(2006) (holding that the Ninth Amendment does not create jurisdiction in the United States Court
of Federal Claims).




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III.   CONCLUSION.
        In sum, Plaintiff has not identified “a separate source of substantive law that creates the
right to money damages.” Fisher, 402 F.3d at 1172. Plaintiff’s land dispute was brought in the
United States District Court for the Northern District of Iowa and dismissed. Plaintiff has no
dispute with the United States and the court does not have jurisdiction to adjudicate Plaintiff’s
claims. Therefore, the court has no occasion to consider the adequacy of Plaintiff’s pleadings
under RCFC 12(b)(6).

      For these reasons, the Government’s February 25, 2013 Motion To Dismiss is granted.
See RCFC 12(b)(1). Accordingly, the Clerk is directed to dismiss the November 13, 2012
Complaint.

       IT IS SO ORDERED.

                                                                    ___________________
                                                                    SUSAN G. BRADEN
                                                                    Judge




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