                        ORIGI AL
Jfn tbe Wniteb         ~tates      (!Court of jfeberal (!Claims
                                  No. 15-360C
                            (Filed: October 30, 2015)


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ISRAEL OWEN HA WK.INS, JR.,                                  FILED
                      Plaintiff,                           OCT 3 0 2015
                                                         U.S. COURT OF
v.                                                      FEDERAL CLAIMS

THE UNITED STATES,

                      Defendant.

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                                    ORDER

        On April 9, 2015, plaintiff filed his complaint against the United States.
We understand plaintiffs complaint as alleging that the Government
wrongfully interfered with his property rights through unlawful market
manipulation and devaluation of his common stock shares in his company,
Petro America, so as to result in the unconstitutional deprivation of just
compensation in violation of the Takings Clause of the Fifth Amendment.
Plaintiff seeks $25 billion in actual and punitive damages, as well as injunctive
relief.
                                BACKGROUND

       Plaintiff alleges that the federal government destroyed the value of his
shares in a company that he started, Petro America. These claims relate to a
criminal investigation into plaintiffs business activities with Petro America,
which resulted in criminal conviction for various crimes including securities
fraud and conspiracy. As far as we understand, plaintiff contends that during
the course of the investigation, defendant manipulated the market through
negative press releases about plaintiffs company, which in tum devalued his
shares. According to plaintiff, this devaluation of his shares constituted a
taking without just compensation.
        Pending is defendant's motion to dismiss pursuant to Rules 12(b)(l)
and 12(b)(6) of the Rules of the United States Court of Federal Claims
("RCFC"), filed June 8, 2015. Defendant argues that this court does not
possess jurisdiction over the Government's decision to investigate and bring
criminal charges against a plaintiff, and that property seized during a criminal
investigation cannot constitute a taking. Defendant further argues that the court
does not have jurisdiction over claims against the various Government
employees identified in the complaint, is without power to award declaratory
or injunctive relief in this circumstance, and is without power to award
punitive damages. Lastly, defendant contends that even if this court possesses
jurisdiction, the Government's action was not a taking because property seized
during a criminal investigation is not taken for public use. Plaintiff did not
respond to the government's motion to dismiss.

                                 DISCUSSION

        The Tucker Act gives this court jurisdiction over claims against the
United States founded upon the Constitution, any Act of Congress or
regulation, or an express or implied contract with the United States. 28 U.S.C.
§ 149l(a)(l) (2011). However, not every claim involving the Constitution is
within the jurisdiction of this court. Eastport S.S. Corp. v. United States, 178
Ct. Cl. 599, 605 (1967). The Constitutional provision, statute, or regulation
upon which the claim is based must be money-mandating. Fisher v. United
States, 402 F.3d 1167, 1173 (2005). Moreover, this court has no jurisdiction
to award punitive damages. Environmental Safety Consultants, Inc. v. United
States, 95 Fed. Cl. 77, 98 (2010). Claims under the Takings Clause, however,
are within this court's Tucker Act jurisdiction. Howard v. United States, 106
Fed. Cl. 343, 354 (2012).

        When deciding a motion to dismiss for lack of subject matter
jurisdiction under RCFC 12(b)(l), this court must presume all undisputed
factual allegations to be true and must draw all reasonable inferences in the
non-movant's factor. Uusi, LLCv. United States, 110 Fed. Cl. 604, 608 (2013).
Although pro se plaintiffs are held to a more lenient standard, the plaintiff still
has the burden of establishing subject matter jurisdiction by a preponderance
of the evidence. Barnes v. United States, 122 Fed.Cl. 581, 582 (2015).

        To survive a motion to dismiss for failure to state a claim upon which
relief can be granted, a plaintiff must plead plausible facts that "allow[] the
court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged." Id. at 583 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The court will grant a motion to dismiss for failure to state a claim
when it is clear that the plaintiff can prove no set of facts that would entitle
him to relief. Id.

        As stated above, we are without power to award punitive damages to
plaintiff. Environmental Safety Consultants, 95 Fed. Cl. At 98. Moreover, we
do not have jurisdiction over private individuals as defendants, and therefore
cannot adjudicate any of plaintiffs claims with respect to the numerous
individuals he named as defendants in their individual capacity in his
complaint. Hufford v. United States, 87 Fed. Cl. 696, 702 (2009). However,
with regard to plaintiffs claims that the Government has interfered with the
use and enjoyment of his property without awarding just compensation, we do
have jurisdiction, as this constitutes a claim under the Fifth Amendment
Takings Clause. Nonetheless, we grant defendant's motion to dismiss because
plaintiff has failed to state a claim upon which relief can be granted.

       To the extent that plaintiff alleges that the devaluation of his shares
was, in effect, a seizure of his property, he cannot sustain a takings claim.
Property seized during the course of a criminal investigation is taken pursuant
to a government power other than eminent domain, and therefore is not taken
for "public use" as required to state a claim under the Takings Clause. See
Amerisource Corp v. United States, 525 F.3d 1149, 1153-54 (Fed. Cir. 2008).
Accordingly, any interference with plaintiffs property rights did not constitute
a taking for "public use" and plaintiff has failed to state a claim pursuant to the
Takings Clause of the Fifth Amendment.

       If plaintiff is alleging anything other than a physical invasion of his
property, the only other viable takings claim under the Fifth Amendment is a
regulatory taking. This type of taking occurs when a regulation has deprived
the owner's property of its entire economically beneficial or productive use.
See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). Plaintiffs
complaint has made no mention of regulatory interference with his property,
and thus he cannot maintain a takings claim under this theory.

                                CONCLUSION

       We therefore dismiss, without prejudice, those portions of plaintiffs
complaint directed at defendants other than the United States, as well as his
claims for punitive damages and equitable relief. The remainder of plaintiffs

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complaint we dismiss pursuant to RCFC 12(b)( 6), as plaintiff has failed to
provide any set of facts that would entitled him to relief under the Takings
Clause of the Fifth Amendment. The clerk of court is directed to enter
judgment accordingly. No costs.

                                         L/(A~           j)            .
                                         ERIC G. BR~-7/PVl
                                         Judge




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