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                                                     No. 15-786C
                                              Filed: November 23, 2015
                                              NOT TO BE PUBLISHED                      FILED
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                                                           *                          Nov 2 3 20t5
DEAN R. SEELY,                                                                      U.S. COURT OF
                                                                                   FEDEML CLAIMS
        Plaintiff, pro se,



THE IINITED STATES,

        Defendant.

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                                   *
Dean R. Seefy, Mount Pl easant,UIah, pro se.

Aaron E. Woodward, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

                         MEMORANDUM OPINION AND FINAL ORDER
BRADEN,
              "Izdge.

I.      RELEVANTFACTUALBACKGROUND.I

        On September 17,2002, Dean Seely pleaded guilty to one count of armed bank robbery in
the United States District Court for the District of Utah and was sentenced to forty-one months in
prison. 9/10/15 Gov't. Mot. App. A1; see also 18 U.S.C. $ 2113.2


        'The relevant facts were derived from Plaintiffs August 31,2015 Amended Complaint
("Am. Compl."). The facts also were derived from the Appendix to the Govemment's Motion to
Dismiss Amended Complaint ("9/10/15 Gov't Mot App."). See Moyer v. United States,190 F.3d
 1314, 1318 (Fed. Cir. 1999) ("Factfinding is proper when considering a motion to dismiss where
the jurisdictional facts in the complaint. . . are challenged."). As such, consideration of the
Appendix to the Govemment's September 10,2015 Motion To Dismiss is appropriate, because
the documents contained therein provide the factual basis for whether the court has jurisdiction.

        2                              st
            Section 21 13 of the 2l         Century Department of Justice Appropriations Authorization Act,
in relevant paft, provides:

        Whoever, by force or violence, or by intimidation, takes or attempts to take from
        the person or presence of another . . . [s]hall be fined under this title or imprisoned
        not more than twenty years, or both" and that anyone who "assaults any person, or
        puts in jeopardy the life ofany person by the use of dangerous weapon or device,
        on August 26,2003, Mr. Seely also pled guilty to one count of sexual exploitation of
children in the United States District Court for the District of Utah, and was sentenced to 160
months inprison. 9/10/15 Gov't. Mot. App. A7; see also 18 U.S.C. $ 2551.1

il.    PROCEDURALHISTORY.
                                                     a complaint in the united states court of
       on July 27,2015, Mr. Seely (,.Plaintiff') filed
Federal Claims. The July 27 ,2015 Complaint alleges that the United States District Court for the
District of Utah was an "improper venue," because that court is "not a true United States court,
'ordained and established' with the 'judicial power' of the United States." Compl. flfl 6-7. The
 July 27,2015 Complaint also alleges that the Government violated Plaintiffs rights under the
Fourth, Fifth, Sixth, seventh, Eighth, and Ninth Amendments to the United states constitution.
Compl. fl'lf 7-8.

       On August 17,2015, the Govemment filed a Motion To Dismiss ("8lI7ll5 Gov't Mot."),
pursuant to Rules 12(b)(1) and 12(bX6) ofthe Rules ofthe United States Court ofFederal Claims
f.RCFC).

       On August 31,2015, Plaintiff filed a Motion For Leave To Amend Complaint and his
Amended complaint was attached. The August 31, 2015 Amended complaint incorporated
paragraphs l-5 ofthe July 27, 2015 Complaint and amended paragraphs 6-18 ofthe July 27,2015
Complaint. The August 31,2015 Amended Complaint, however, removed the Fourth, Sixth,
Seventh, Eighth, and Ninth Amendment claims.

        In sum, the August 31, 2015 Amended Complaint alleges that: 1) because the United States
District Court for the District of Utah is "not a true United States court," pursuant to Article III of
the Constitution, Plaintiff s convictions by an "unqualified and defective" grand jury violated the




       shall be fined under this title or imprisoned not more than twenty-five years, or
       both.

18 U.S.C. $ 2113.

       3
           Section 225 1 of the Protect Our Children Act Of 2008, in relevant part, provides:

       Any person who employs, uses, persuades, induces, entices, or coerces any minor
       to engage in, or who transports any minor in or affecting interstate or foreign
       commerce . . . of the United States, with the intent that such minor engage in, any
       sexually explicit conduct for the purpose ofproducing any visual depiction ofsuch
       conduct or for the purpose of producing any visual depiction of such conduct . . .
       shall be fined under this title and imprisoned not less than 15 years nor more than
        30 years.

18 U.S.C. S 2251.
Fifth Amendmenta of the United States Constitution and seeks $72,000,000; 2) Plaintiffs rights
under 28 U.S.C. $ 1861s were violated; and 3) unnamed agencies and departments of the United
States committed fraud by failing to respond to Plaintiffs inquiries about the legal status of the
United States District Court for the District of Utah. Am. Compl. flfl 6, 13-16.

        On September 2, 2015, the United States Court of Federal Claims granted Plaintiff        s

Motion For Leave To Amend Complaint.

       On September 10, 2015, the Govemment submitted a Motion To Dismiss The Amended
Complaint ("9/10/15 Gov't Mot."). That same day, the Govemment also filed an Appendix to its
Motion To Dismiss The Amended Complaint. On October 6, 2015,the Govemment's September
10, 2015 Motion was filed by leave of the undersigned judge.

        Plaintiff did not file a Resoonse to the Government's September 10, 2015 Motion To
Dismiss.

TL      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." 28U.S.C. $ 1a91(a)(1). The Tucker Act, however, is "ajurisdictional
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
Claimsl whenever the substantive right exists." UnitedStqtesv. Testan,424U.5.392,398 (1976).

        To pursue a substantive right under the Tucker Act, a plaintiff must identifu 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]uisdiction under the Tucker Act requires the litigant to
identiff 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
TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidenti$aseparate
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 substaative
law upon which he relies "can fairly be interpreted as mandating compensation by the Federal

        4
       U.S. CONST. amend. V, in relevant part, provides, 'No person shall be held to answer for
        or otherwise infamous crime, unless on a presentment or indictment of a grand jury[.]"
a capital,
U.S. CONST. amend. V.

        5Section 1861 ofthe Jury Selection and Service Act of 1968 provides, "[A]ll litigants in
Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at
random from a fair cross section of the community[.]" 28 U.S.C. $ 1861.
 Govemment[.]" Testan, 424 U.S. at 400. And, a 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 plaintiffl bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").

        B,       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 inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). Courts traditionally examine the record "to see if la pro sef
plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. Ct. 456,
468 (1969). Nevertheless, although the court may excuse ambiguities in a pro se plaintiffs
complaint, the court "does not excuse [a complaint's] failures." Henke v. United States,60F.3d
795,799 (Fed. Cir. 1995).

        C.       Standards For Motion To Dismiss.

                 1.    Under RCFC r2@Xl).

        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(bX1) motion[.]"
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a paxty may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court
"must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all
reasonable inferences in favor ofthe plaintiff." Trusted Integration, Inc.v. United States,659 F.3d
1159, 1163 (Fed. Cir. 2011).

                 2.    UnderRCFC 12(bX6).

        A challenge to the United States Court ofFederal Claims' "[ability] to exercise its general
power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(bX6)
motion[.]" Palmer,168 F.3d at l3l3;' see alsoRCFC 12(bX6) C'Every defense to a claim for relief
in any pleading must be assefted in the responsive pleading . . . . But a party may assert the
following defenses by motion: . . . (6) 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 "a claim has been stated adequately" and then whether "it may be supported by [a]
showing [ofi any set of facts consistent with the allegations in the complaint           ." Bell Atl.
Corp. v. Twombl/, 550 U.S. 544, 563 (2007). The plaintiff s factual allegations must be
substantial enough to raise the right to relief "above the speculative level." Id. at 555. The court
must accept all factual allegations in the complaint as true and make all reasonable inferences in
favor ofthe olaintiff. 1d.
       D.      The Government's September 10,2015 Motion To Dismiss The Amended
               Complaint.

                1      The Government's Argument.

       The Govemment argues that the August 31,2015 Amended Complaint does not allege a
substantivebasisforjurisdictionandcitestotheTuckerActonlynominally.9/10/15Gov'tMot.
at 5. The Amended Complaint requires the court to dismiss the claim because the United States
Court of Federal Claims does not have jurisdiction to adjudicate criminal actions or appeals from
a United States District Court's rulings. 9/10i15 Gov't Mot. at 5-6. Finally, the Amended
Complaint should be dismissed, because the Fifth Amendment is not money-mandating. 9/10/15
Gov't Mot. at 6.

               2,      The Court's Resolution.

         First, with respect to the Amended Complaint's claim that Plaintiff s Fifth Amendment
right to a grandjury was violated, the Grand Jury Clause ofthe Fifth Amendment does not mandate
money damages. See Gahagan v. United States,72 Fed. Cl. 157, 160 (2006) ("The Fifth
Amendment to the United States Constitution is recognized as specifically allowing money
damages in two circumstances: (1) the taking ofprivate property for public use; and (2) due process
violations resulting in an illegal exaction [.]"). The court, however, does not have jurisdiction to
adjudicate Plaintiff s Grand Jury Clause claim.

         Second, the court does not have jurisdiction to adjudicate the Amended Complaint's claim
that the Govemment violated 28 U.S.C. $ 1861. Section 1861 of the United States Code provides
that "all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community." 28 U.S.C. $ 1861. Again,
there is no substartive right for money damages in Section 1861, even if the Government violates
the statute.

        Third, Article III, clause I of the United States Constitution provides, "The judicial power
of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish." It is undisputed that Utah has been fully
admitted into the Union as a state since 1896. See Utah Diy. of State Lands v. {1S,482 U.S. 193,
199-200 (1987) ("The Utah Enabling Act of July 16, 1894, provided that Utah was 'to be admitted
into the Union on an equal footing with the original States."'). 28 U.S.C. g 133(a) delegates
authority to the President ofthe United States of America "to appoint, by and with the advice and
consent of the Senate, district judges for . . . Utah." 28 U.S.C. $ 133(a). Given that Utah is an
admitted state and given the President's authority to appoint federal district judges in Utah, the
United States District Court for the District of Utah is a valid Article III court ofthe United States.

       Finally, a claim must "reasonably plead the particularities ofthe charge to comply with the
requirements of [RCFC] 9(b)."6 BMY Combat Sys. v. (lnited States,26 Cl. Ct. 846, 850 (1992).
The Amended Complaint, however, "do[es] not specify the specific actors" and is based on aa

       " RCFC 9(b), in relevant part, provides, "In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake." RCFC 9(b).
enoneous interpretation of the legal status   ofa United   States District   Court. .Id. Therefore, the
claim for fraud must be dismissed.

IV.    CONCLUSION.

      For the these reasons, the Govemment's August l7,2015 Motion To Dismiss is granted.
See RCFC l2OXl). The Clerk is directed to enter judgnent and dismiss the August 31, 2015
Amended Complaint.

       IT IS SO ORDERED.


                                                                    BRADEN
                                                     Judge
