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                                                                                     No. 13-839
                                                                               Filed: March 21,2014
                                                                            NOT TO BE PUBLISHED                        FILED
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                                                                                                         'i           MAR   21   2014

KARL ROBERT IRWIN,

               Plaintiff, pro
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                                                 se,




THE UNITED STATES,

               Defendant.

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Karl Robert lrwin, Bismark, North Dakota, Plaintiff, pro                                                      se.

Sean McNamara, United States Department of Justice, Washington, D.C., Counsel for the
Government.

                                              MEMORANDUM OPINION AND FINAL ORDER

BRADEN,-radge.

I.            RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.I

         Pro se Plaintiff Karl Robert lrwin, currently a prisoner at the Federal Correctional
Institute in Oxford, Wisconsin, filed a Complaint in the United States Court of Federal Claims on
October 28,2013. The Complaint alleges that on November 20,2004 the Drug Enforcement
Administration C'DEA) seized $14,977 and a 1998 Ford Pickup truck, valued at $11,125, from


               ' The relevant facts
                             discussed herein were derived fiom the october 29,2013 complaint
and attachments ("P1. Attach 1-4"). The attachments are four forms relating to Plaintiffs arrest
and the seizure of a truck and money: (1) DEA Form 48a, entitled "Disposition of Non-Drug
Evidence," dated December 29,2004,listing the seized non-drug evidence as a "check" with an
estimated value of$14,977 (Pl. Attach 1); (2) a second DEA Form 48a, entitled "Disposition of
Non-Drug Evidence," also dated December 29, 2004, listing a ..1998 Ford XLT Supercab
Flareside 4wD Pickup" (Pl. Attach 2); (3) an April 28, 2005 Declaration of Forfeiture of
*514,977.00
              [in] U.S. Cunency" to the Government (Pl. Attach 3); and (4) a Declaration of
Forfeiture forfeiting the "1998 Ford XLT Supercab Flareside 4wD pickup" to the Government,
with a partially redacted date, but showing April 26,2005 as the date when a facsimile of the
form was received in the DEA's Fargo, North Dakota Office (pl. Attach 4).
Plaintiff. Compl. l. Since these seizures occurred when Plaintiff was arrested on drug charges,
but the evidence seized was classified "non-drug evidence," the forfeiture was a taking of
Plaintiffs personal property without just compensation in contravention of the Fifth Amendment
to the United States Constitution. Compl. 1, 3; Pl. Attach 1-2 (DEA Forms 48a). The
Complaint also alleges that the seizure violated 21 U.S.C. $ 881.' Compl. 3. The Complaint
also appears to assert two due process claims: first, the Govemment's seizure violated the Due
Process Clause; second, applying the statute of limitations to bar Plaintiffs claim would be a
substantive due process violation. Compl. 1-2. Finally, the Complaint appears to allege a
Bivens catse of action. Compl. 1-2 (citing Bivens v. Six Unknown Fed. Narcotics Agents,403
U.S. 388, 392-397 (1971) (holding that a plaintiff may assert a cause of action for money
damages when federal officials, acting under color of federal authority, violate rights protected
by the Fourth Amendment to the United States Constitution)); see aiso ld (including an
Assistant united states Attomey and "all unknown agents" as defendants in the case caption).

       The Complaint seeks $322,240 in compensatory damages and $2,000,000 in punitive
damages. Compl. 3.

        On December 26,2013, the Government filed a Motion to Dismiss, pusuant to RCFC
12(bX1) and 12(b)(6). on January 13,2014, Plaintiff filed a Response. The Govemment did not
file a Reply.

il.    DISCUSSION.

       A.        Jurisdiction.

       The united states court of Federal claims has jurisdiction under the Tucker Act, 2g
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

       2
          Section 881 is part of the controlled substances Act, pub. L. gl-513, g4 stat. 1242
(1970) (as amended). section 881 provides, in relevant part, that the following are subject to
forfeiture by the Govemment:

       (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are
       intended for use, to transport, or in any manner to facilitate the transportation,
       sale, receipt, possession, or concealment [of controlled substances.l

                                             +*'t

       (6) All moneys, negotiable instruments, securities, or other thinss of value
                                                                        -a
       fumished or intended to be fumished by any person in exchange for controlled
       substance or listed chemical in violation of this subchapter, all proceeds traceable
       to such an exchange, and all moneys, negotiable instruments, and securities used
       or intended to be used to facilitate any violation of this subchapter.

2l u.s.c.   gg 881(4), (6).
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 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) ("[Ilurisdiction under the Tucker
Act requires the litigant to identifr 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 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 Govemment." United Stdtes v. Mitchell,463 U.S. 206,
 216 (1983) (quoting Testan,424 U.S. at 400). 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 plaintiffl 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 staadard 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'1o
 see if lapro sel 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 plaintiffs complaint, the court "does not excuse [a complaint's] failures."
Henke v. United States,60 F.3d 795, 799 (Fed. Cir. 1995).

        C.      Standards For Decision On Motion To Dismiss.

                1.     Pursuant To RCFC 12(bX1).

        A challenge to the United States Court ofFederal 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 a/so RCFC 12(b)(1) ("Every
defense to a claim for reliefin any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (l) 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 plaintiffs favor." Henke v. United States, 60 F.3d 795,
 797 (Fed. Cir. 1995).
       Nonetheless, the plaintiff bears the bwden ofestablishing 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 plaintif!
bears the burden of establishing subject matter jurisdiction by a preponderance of the
evidence.").

               2.      PursuantTo RCFC f2@X6).

        A challenge to the United States Court of Federal Claims' "[ability] to exercise its
general power with regard to the facts peculiar to the specifrc claim . . . is raised by a [Rule]
12(bX6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC l2(bx6) ("Every defense to a
claim for relief in any pleading must be asserted 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
$anted[.]").

        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 [ofj any set of facts consistent with the allegations in the complaint." Bell Atl.
Corp. v. Twombt, 550 U.S. 544, 563 (2007). The plaintiffs factual allegations must be
substantial enough to raise the right to relief "above the speculative level," accepting all factual
allegations in the complaint as true and making all reasonable inferences in favor ofthe plaintiff.
Id. at 555.

        D.      The Court's Resolution Of The Government's December 26,2013 Motion To
                Dismiss.

        Plaintiff has failed to meet the burden of establishing subject matter jurisdiction for the
reasons set forth below.

                1.      PlaintifPs Takings Claim         Is   Time-Barred By The Statute Of
                       Limitations.

        Pursuant   to section 2501, "every claim of which the United States Court of Federal
Claims has   jurisdiction shall be barred unless the petition thereon is filed within six years after
such claim first accrues." 28 U.S.C. $ 2501; see also Goodrich v. United States, 434 F.3d 1329,
1333 (Fed. Cir. 2006) ("A claim brought in the United States Court of Federal Claims must be
filed within six years of its accrual date."). It is firmly established that a cause of action against
the Govemment has accrued "when all the events have occurred which fix the alleged liability
of the [Govemment] and entitle the plaintiff to institute an action." Hopland Band of Pomo
Indians v. United States,855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Mittapalli v. United
States,867 F.2d 616, * I (Fed. Cir. 1989) ("[A] cause of action against the govemment has 'first
accrued' only when all the events which fix the govemment's alleged liability have occurred and
the plaintiff was or should have been aware of their existence." (citation omitted)). Relevant to
this case, a takings claim accrues when the Govemment action that allegedly constitutes a taking
occurs. ,See Alliance of Descendants ofTex. Land Grants v. United States,37 F.3d 1478, 1481
(Fed. Cir. 1994) (explaining that a "claim under the Fifth Amendment accrues when that taking
action occurs").


        The Complaint alleges that the seizure of the truck and money occurred during
Plaintiff s arrest on November 20,2004. Compl. 1. DEA Forms 48a both are dated December
29,2004, and the Declaration of Forfeiture bears a date of April 28, 2005. These events fix the
Government's alleged liability and Plaintiff "knew or should have known" his claim existed at
this point, because the DEA assumed possession of his truck and money at the time ofhis arrest.
See Kinsey v. United States,852F.2d 556,557 n.r (Fed. Cir. 1988). Construing the facts in the
Complaint in the manner most favorable to Plaintiff, April 28, 2005 is the latest date on which
his claims accrued.


        The October 28,2013 Complaint was filed more than eight years after April 28,2005
and thus it is well outside the statute of limitations imposed by Section 2501. "This court's six-
year limitations period is jurisdictional and may not be equitably tolled." Ramos v. United
States, I12 Fed. Cl. 79, 85 (2013). The court understands Plaintiffs argument that application
of the statute of limitations runs afoul of a constitutional protection. That argument has been
explicitly rejected, however, by both the United States Supreme Court and the United States
Court ofAppeals for the Federal Circuit. See Blockv. North Dakota,46l U.S.273,292(1983)
("A constitutional claim can become time-barred just as any other claim can. Nothing in the
Constitution requires otherwise." (citations omitted)); see also Hair v. United Stales, 350 F.3d
1253, 1260 (Fed. Cir. 2003) (holding that the constitutional right to just compensation is not
absolute, because "the remedy afforded by the Fifth Amendment is subject to a reasonable time
bar designed to protect other important societal values"); see also Lopez v. Sec'y of Navy, 15
Fed. App'x 781,784 (Fed. Cir. 2001) (rejecting both a facial and as applied challenge to
application of this court's statute of limitations). Thus, Plaintiffs takings claim is time-barred
and must be dismissed.'




             'To
             the extent that Plaintiff asserts that the Government's seizure ofhis property
constituted a taking, Plaintiff cannot state a claim showing entitlement to relief:

             When property has been seized pursuant to the criminal laws or subjected to fu
             rem forfeirne proceedings, such deprivations are not 'takings' for which the
             owner is entitled to compensation. The same rule applies even if the property is
             seized as evidence in a criminal investieation or as the susDected instrumentalitv
             of a crime[.]

Acadia Technologt, Inc. v. United States, 458 F.3d 1327, 1331 (Fed. Cir. 2006) (intemal
citations omitted); see also Kam-Almaz v. United States,682 F.3d 1364, 1371 (Fed. Cir.2012)
(explaining that property seized and retained pursuant to the police power is not taken for a
"public use" in the context ofthe Takings Clause); Amerisource Corp. v. United States,525 F.3d
I 149,   1   153 (Fed. Cir. 2008) (same).
               2.      The United States Court Of Federal Claims Does                 Not   Have
                       Jurisdiction To Adjudicate Due Process Claims.

         To the extent that Plaintiff asserts the Govemment's seizure of his property was a
violation ofthe Due Process Clause ofthe Fifth Amendment, the court also lacks jurisdiction to
adjudicate that claim, as this constitutional provision "does not obligate the [G]overnment to pay
money damages ." Collins v. United States, 67 F .3d 284, 288 (Fed. Cir. 1995). In other words,
the Due Process Clause is not a money-mandating provision of the Constitution. See
LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) ("[C]ounts alleging violation[s]
of. . . rights under the Due Process Clauses of the Fifth and Fourteenth Amendments . . . . [are
not] a sufficient basis for jurisdiction because they do not mandate payment of money by the
[G]overnment."); see also Acadia Technology, Inc., 458 F.3d at 1334 ("A violation of due
process rights . . . does not give rise to a claim for money damages against the United States in
the Court of Federal Claims."). Therefore, PlaintifPs due process claims must be dismissed.

               3.     The United States Court Of Federal Claims Does Not Have
                      Jurisdiction To Adjudicate Allegations Of Unlawful Forfeiture Under
                      The Controlled Substances Act.

         To the extent that the Complaint alleges the Govemment's seizure of his truck and money
 was an improper forfeiture under 21 U.S.C. $ 881, the United States Court of Federal Claims
 does not have jurisdiction to adjudicate such a claim. See Fischer v. United States, 96 Fed. Cl.
 70,79 (2011) (holding that the United States Court of Federal Claims does not have jurisdiction
to adjudicate claims alleging a violation of 21 U.S.C. $ 881); Crocker v. United States, 125 F.3d
 1475, 1477 (Fed .Cir. 1997) ("[W]hile [the law] can be read as recognizing tle district courts'
jurisdiction over a forfeiture ofseized property or money under the Controlled Substances Act, it
does not suggest the Court of Federal Claims has similar subject matter jurisdiction.").
Therefore, the claims alleged in the Complaint under Section 881 must be dismissed.

               4.     The United States Court Of Federal Claims Does Not                    Have
                      Jurisdiction To Adjudicate A Bivens Action.

         Although the Complaint does not specifically allege a "Bivens action," it cites Bivens to
 substantiate a right to relief. Compl. 2 (citing Bivens,403 U.S. at 392). To the extent that a
Bivens action is alleged, the United States Court of Federal Claims also does not have
jurisdiction to adjudicate that claim. See Brown v. United States, 105 F.3d 621,624 (Fed. Cir.
 1997) (holding lhat "Bivens actions . . . lie outside the jurisdiction of the Court of Federal
 Claims"); see also Taylor v. United States, 113 Fed. Cl. 17I, I73 (2013) ("[T]his [c]ourt lacks
jurisdiction over Bivens actions for civil wrongs committed by agents of the United States");
 Gallo-Rodriguez v. United States, 513 Fed. App'x 971,973 (Fed. Cir. 2013) (explaining that a
Bivens action cannot form the basis for Tucker Act iurisdiction). Therefore, the Bivens claim
must be dismissed.
ilI.   CONCLUSION.

       For these reasons, the Govemment's December 26,2013 Motion to Dismiss is granted
and the Clerk of Court is directed to dismiss the October 28.2013 Complaint.

       IT IS SO ORDERED.
