                                                          oRr0lNAt
               Iln     t\t @nitr! $ltatts [.ourt of /r[prs[ @Isims
                                                              No. l3-363C
                                                          (Filed: June 4,2014)


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  JULIO VILLARS,                                                                   FILED
                                      Plainrifl,                           :*
                                                                                   JUN 4   2rI4
                         v.                                                r.


  THE UNITED STATES,                                                             'H;?-??'&1ffi
                                                                            *
                                      Defendant.                            *
                                                                            *
 * * * * * * *,t,*,* + * * + * {( * * * * * * * :} * * * * * :r * * * * 1(
                                                                           **


                                                    OPINION AND ORDER

 DAMICH,            Judge.

          In this action, Plaintifr Julio villars, acting pro se,
                                                                     alleges that the united states
  ("Defendant")t breached an impried-in-fa.t               .'"rtr, 'piaintiff,
                                                                               who, purswmt to the
                                                  "ontrii
  alleged contract, provided services as a confidential human
                                                                      source c,cHs,) in exchanle
 for an S Visa' ' which could lead to legar permanent residence
                                                                         in trre unitei a.il;. d;
 Plaintifls contract-based claims constitute counrs I, II and IV ofthe
                                                                                 complaint.l piririiir
 further claims that Defbndant took his property without just
                                                                      compensation in violation of
 the Fifth Amendment (count III). Defendant hu,
 lack of subject matter jurisdiction, on the grounds
                                                                                       I
                                                       -ou"d to dir.iss counts r, unJrv io.
                                                        that theseclaims request the remedy of



        ' Plaintiffnames a number of entities and individuals in his complaint
                                                                                 as
"Defendants" other than the Unitedstates. compl. r. ar
                                                     fl       *r" onty proier deiendant in
this court is the united States, the court dismisses
                                                     the claims against these individuals
and entities see Llnited States.v sherwood,3l2
                                                   u.s. 5g4, 58s (194r); Brownv. (Jnired
States, 105 F.3d 621, 624 (Fed,.Cir. 1997).
           2
         Pursuant to 8 U.S.C. $.1 l0l(aX15)(S), the Attomey
                                                               General has been granted
the authority to issue a nonimmigrant S Visa to a person ,,in
                                                              possession ofcritical reliable
informationconcemingacriminilorganizariono.'""i;;.i;;...[who]...hassupplied
such information to Federar or state law enforcement
                                                        u,rtho.iti", or a Federal or state
court; and . . . whose presence in the united states
                                                     the Attomey General determines is
essential to the success ofan authorized criminal
                                                   investisation. . . _,,
  specific performance. Defendant further moves to dismiss count III for failure to state a
  claim upon which relief can be granted.

             Because the Court finds that Plaintiffs counts I, II and IV seek the remedy of
  specific performance, a remedy not afforded to this Court, it must grant Defendant's
  motion with regard to these claims. Further, the court must dismiss count III because
  Plaintiff has failed to state a claim upon which relief can be granted. Therefore, for the
  reasons that follow, Defendant's motions to dismiss are GRANTED.

        L        Background Facts

           In early 2008, Plaintiff alleges that while incarcerated and awaiting deportation
                                                                                               to
  Honduras by Immigration and customs Enforcement ("rcE"), plaintiff
                                                                               co.-ntu"t.a, uy
  letter' Federal law enforcement agencies including the'Federar Bureau
                                                                              of Investigiion
  ("FBI") and the Drug Enforcement Administration                   offering to act as a.i
                                                          1"oEa";,
  informant' complainr ("compl.") nn 12,45. In hii letter, plaintiff
                                                                       $ecified that he was
  willing to act as an informant in exchange for receiving the infbrmant
                                                                         s visa which
  would enable him to later become a legal permanent ,"-.id"nt.
                                                                  Compl. fl 2.

        In late 2008, plaintiff became a CHS, Def. Br., Ex. 1,2013
                                                                   Decl. of          William
 Roecker-u 6 ("Ex. l"), and continued as a CHS
                                               throughbctober           2010. Compl. flli
 During this time, plaintiff assisted in the ur.ert of sr.Ipe"ts
                                                                 and the ai."orr".y'or ili.gur
 drugs, Compl. 11112,41, and was paid at various
                                                      ti... fo. U, efforts. Ex. f 1 S.- -
 Plaintiffalso agreed to have a tracling device installed on
                                                                 his truck and for his business
 telephones to be monitored by the Govemment
                                                    while acting as a cHS. compl. fltT 36-3s
 This relationship, plaintiff contends, created
                                                 an imptiJi-n-Lct contract ;;r*;"'i;ir;;
 and the FBI. See generally Compl.

          In 2009 and 2010, plaintiff was arrested for driving
                                                               under the influence C,DUD.
 Ex' I tffl 10, 1l' As a result of rhe second DUI u,,"rt, pi;i*tff
                                                                   *as designared for
 deportation. Compl. fl 33. However, in order for plaintiff
                                                              to remain in the country
                                                                                   to
testifu at the criminal trials for which he had actedas
office obtained a material witness warrant. S* grrrroity
                                                        a cn!, irr"    tirril&;;;?#.",.
remained detained under the material witn".s
                                                            Co"rpl-;;.rt_tb.";i;;i;.
                                                 *fiaot frJm Nou",nb". 10, 2010 to
!::y     !:201l- Compl. fl 39. His detention, pr"irtiii"ir"g*, caused him to have his
truck repossessed and his family evicted. 1d


    .  At some point, the United states Attomey,s office
                                                         determined that plaintiff s
tesllmony was no longer needed and for some
                                              unkno*n reason, praintiff was released
rather than being deporred back to_Hondurar.
in Chicago, Illinois. See pl. Br. 15; Compl.
                                              E". ifir      il,l3.
                                                               To date, plaintiff resides
                                             16. fl
    II.        Procedural History

            on May 29,2013 praintiff filed   a four-count complaint in this
alleges that the FBI breached an implied-in-ruo
                                                                              court. praintiff
                                                .onou"i-i'count I), breached an implied
  covenant ofgood faith and fair dealing (Count II), and that the agency conspired to
  breach and interfere with an implied-in-fact contract (Count IV). Plaintiff asserts that
  "his only purpose to enter into a contract with the United States govemment was to reap
   the Immigration benefits offered in the Immigration and Naturalization Act, 8 U.S.C. $
   l10l(a)(15)(S) [to] get the S VISA and become [a] legal permanent resident." Compl. fl
   55. Plaintiff further claims that Defendant took his property without just compensation in
   violation of the Fifth Amendment by (l) installing a transmitter on his truck, using his
   vehicle and monitoring his telephones and (2) by incarcerating him as a material riritness
   which lead him to lose his truck and company (count III). In response, Defendant filed
   a motion to dismiss Plaintiff s complaint, or in the alternative, a motion for summary
  judgment pursuant to Rulesl2 (bX6) and 56 ofthe Rules of
                                                                  the united states court of
   Federal claims ('RCFC").3 plaintiff timely responded in opposiriona           il D.i";l;;
  replied.


    - On April 29,2014, the Court ordered supplemental briefrng with regard to
  whetherihis court hadjurisdiction over plaintiff s contract ctaimsl
                                                                       court 5rder (Dkt #
  f!' Anril 29'2014). The court ordered the parties to address the question as to wiether
 this court had jurisdiction to order the Attomey General
                                                           to issue an S visa which would
 enable Plaintiffto later become a legal permanlnt
                                                    resident. Simurtaneous briefs were to
 be filed- o,n or before May 12'2014, 1d. Defendant
                                                      complied and moved to dismiss
 counts I, II and IV of plaintiff s complaint pusuant
                                                      to R^CFC 12(bx1). plaintiff did not
 timely   respond.

       III.    Standard of Review

          A.   Pro Se Standard

         To begin, parlies acting pr-o.se are generally held ..ress
     ^                                                            to        stringent standards,, than
professionallawyers. see,e.g.,Hainesv.krrrrr,'qiii.i.5t9,5t0_it'i;?4["or,nr,J
that allegations contained in a pro se compraint
                                                        be herd to ,.less strrngent standards than

 iil
rtL'
        g:i1l1ql i':T9,
     'vvz)
                            !f y"      se
                                          ;.pi u n' v' i'i,,i      i,' zs c
                                                                            a
                                                                               d 13
            ( [rJne preadlngs orpro "") litigants should be held to F. 3lesser3 5, 1 3 5 7 (Fed.
                                                                                    standardih;
rhose drafted by professionar lawyers
                                          . . . .). Nevertheless, '[t]he a.t trrur
acted pro se in the.drafting of his complainr                                        trpruinird"^
excuse its failure, ifsuch rhere be." Iienkev.
                                                   n'uy .*pfuin iL amUiguities, Uirt  il;;;1r,
                                                     irittairo,u,60F.3d795,799(Fed.           cir.
 1995).




        r Because
                   the Court finds the case ripe for dismissal,
                                                                the Court need not address
Defendant's altemative motion for summary
                                               iudgment and denies the motion as moot.
       a
          In his response in opp,osition, plaintiffalso
                                                        requests discovery. In light ofthis
opinion, the Court also deniei rne request as
                                               moot.
               B. Motion to Dismiss under RCFC l2(bxl)
               A motion brought pursuant to RCFC 12(b)(l) challenges the Court's subject
   matter jurisdiction. see RCFC 12(bX1). Subject matter jurisdiction may be challenged at
   any time by the parties, or as is the case here, by the court saa sponte. Boothv. unied
   states,990F.2d617,620 (Fed. cir. 1993). Indeed, this court,slurisdiction to enterrain
   claims and grant relief, like all Federal courts, depends on the extent to which the
                                                                                       united
          na1 waived sovereign  immunity. United Siates v. Testan, 424 tJ.S. 3g2,3g9
   !_t11eg
   ( I 976).The burden of establishing the court's subject matter jurisdiction rests
                                                                                     with the
  plainriff, who must establishj urisdic tion. Lujan v.-Defenders
                                                                  Lywnan|r,504 u.s. 555,
  561 (1992); McNuu v. Gen. Motors Acc,eprance Corp. of Ina.,ig|U.{.
                                                                          hA, ne geli4.
  Even so, when faced with a motion to dismiss for lack of
                                                           subject matter jurisdiction, a-'
  court must assume that      a
                           undisputed facts alleged in the complaint              *. i-.,
                                                                                and it must
  drawallreasonableinferencesintheplaintiffs-favor. scheue)v,Rhodes,ciei.i.iii
  236 (1974); see also Henke v. (lniteiSrates,60 F.3d
                                                      295, 797 (Fed.Cir.              1995).

           C.     Motion to Dismiss under RCF.C l2(bx6)

         RCFC l2(bx6) allowsfor the dismissal of a
                                                        complaint if, assuming the truth of ail
 the allegations, the complaint fails to state
                                               ""r"i. "p"r irrtich(Fed.ci..iooz].-ivi"""'a
 matterof law. Lindsavv. unitedstates,2g5Fsdi52,1257
                                                                    relief may be granted as
 analyzing a motion to dismiss under RCFC
                                                rztuitolirt" L"rrt must
 the complainr's undisputed fa*ual allegario;;;;;;iJ."nstrue also accept as true
 favorabletoplainriff. Goutd, Inc.".                                     them in a light most
 and "the. [f]actual allegations must be
                                          uin;iitoi,slJ;za        n71,1274(Fed.Cir. l99l),
                                         enough to ,ui." u.igfrt to relief above
 speculative level.,' Belt Attantic Corp.                                         the
                                             rirr*fiy,-iii U".s. S++, 555 (2007.
                                            ".
     IV.         Discussion

          Defendant raises two
         trral gris  .",n,".i.,:"Tilil,i;f  ,T;:Ji';ffi::#tl""f:il:il*
 1g3es
 seeks specific performance ralher
                                     than money    d;;g;.
                                                                                            ,:ii'h,j   ,"
                                                            G"ona, Defendant            argues that
 Lt1'r1tt{n",
                not adequarely pleaded a
 state a claim upon which relief may
                                          ,Jil; il;il,       ti.,.rrtir.., his complaint fails to
                                       be granied.

         A. This Court Lacks Jurisdiction        over Counts I,   II   and   IV
        Defendant argues that by plaintiffs
                                            own words the alleged implied-in_fact
contract never contemplated monetary
                                       damages uut trtui inri.uo the actual
                                                                            relief plaintiff
seeks is specific performance.
                                   fnur,b"f.na'_t;;;;",        counts I, II and IV fall
beyond thejurisdiction of this coun
                                    as provided by the Tucker act.

        Pursuant to the Tucker Act' 2g
                                       u.s.c. $ l4g l , this court maintains jurisdiction
entertain monetary claims founded                                                         to
                                    upon ttt"r*ing, iiurri           united states
Constitution, money-mandating statutes
                                         and reguraitions'o, "r,rr"
I49l(axl) A contract whichintirles p*vi""-."".y "ont u"tr. 2s u.s.c. $
                                       "
                                                          iu,iug., in the event of a breach
   is such a money-mandating source. See Rick's Mushroom Service, Inc. v. United States,
   521 F.3d 1338, 1343-44 (Fed. Cir. 2008). However, "consent to suit under the Tucker
   Act does not extend to every contract." Holmes v. United States,657 F.3d 1303, 1309.
   For instance, a contract claim seeking specific performance is not a remedy that this court
   is empowered to grant. Nat 'l Center for Mfg. Sciences v. United States, 114 F .3d 196,
   198 (Fed. cir. 1997). But because there is a presumption that money damages flow fiom
   a breach of contract, see Holmes,657 F.3d atl3l4; see also sanders v. united states,
  252 F '3d' 1329, 1334 (Fed. cir. 2001) (in govemment contracts there is a presumption
  that a damages remedy will be available upon the breach ofan agreementj, wher; a
  contract "could involve purely nonmonetary relief. . . it
                                                                [i]s proper for the court to
  require a demonsfation that the_agreements coutd fairly be interpreted as contemplating
  money damages in the event of b reach." Holmes,6sT F.3d, at Ii15. In
                                                                                 this instance,
                                                                                                 '
  "[t]his court may require a plaintiff to render proofthat the contract can fairly be
  interpreted as mandating compensation by the Federal Government.,,
                                                                               Higbie v. United
          1 t: Fed.,Ct. 35 8, 363 -64 (20 | 3) (quoring
  :!:::,', omltted).                                    Hot me s, 657 F.3d ut r :Ts luaaitionui
  clranons

          In this case, Plaintiffa eges  in his complaint that the "only purpose,' to enter into
 the alleged implied-in-fact contract was to receive
                                                        legal permanent residence through an
 S Visa and that he "never asked to be m_onetary[illy
                                                          ,".,nin..ur.d... S", Co,"pi. ;fl ;;_;;.
 It is therefore clear to the court that by plaintiiisiwn
 conracrrever contemplated monetary damages, but
                                                              words the           i;;ii"i_i;_f;;--'
                                                                         "ll.g"d
                                                          instead tt at th. rlli"f pLi"tiff i.
 seeking is specific performance_of the utt.g"i
 Plaintiff is requesting the specific perfo..i"." "ont.u"i*iit,
                                                                   o"r.na*t. sp""rn""'y,
                                                   oiii6 uriegea implied-in-fact contract by
 asking this court to order the Attoiney General
 Visa. This Court does not possess jurisai",.","
                                                    ortrr" uni"a     sti.,  t" i.rr"li;;.{ "
 Court must dismiss
                                                      g;,;h        relief. In light of this, the
                       Counts r, rt anj ry f". il;l-;f;;j';Latter       jurisdiction.
         B. There are no Cognizable Takings          Claims Upon Which Relief can be
             Granted

         The Takings Clause ofthe Fifth Amendment
                                                          states thar .,private property
 not be taken forl public use, wirhout   jusr.;p;;:;;;;:;.s.        coNST. amend. V. A
                                                                                           [shall
 claimanr alleging a Fifth Amendmeni
                                          taktd;;i;;:;;show            that the united srates, bv
                                                                                         v!E,vo, vr
                 actior, tooka private propert! int...rt ro. puiti.
 ::::lry..1fi.
compensarion.', Short v. United St r"r.
present case, Plaintiffa'eses two.
                                                                      "r.;i,h";l;r;
                                             5O f,.3d 9g4, rc06@ed. Cir. f llS;.
                                                                                     fn tne
                                     takings ctartns, neiihe. orwhich are
First, Plaintiff alleges thatbefena-,,"-"t                                    a cognizable claim.
                                               ni. p.?p"r,, *iifr"rr:rst compensation in
violation of the Fifth Amendment by. incar."."',i"g
caused him to lose his truck
                                                       liir u.l-ut".,ut witness which then
as a material witness does not -o  ttu.r.ing *-f-].'ilil          of this, plainriff s detention
                                qqger a takings .tuirn uni".1n. Fifth Amendment. ,See
Hurtado.v   Ltnitedstates'+touil:za,iss:89(6i,;'crh"detentionofamaterial
wrtness, in short, is simolv not a ,taking,
                                            una". tfre pilih'Amendment. . . .,,) Second,
Plaintiff alleges rhat bv instalinga fan-smitter
                                                 on rr" i."r.'ov using his vehicles while
CHS, and by monitoring his relelhones,                                                      a
                                            ,h";"i;;;;;;L'o    toot tris property without iust
compensation. This argument also fails as Plaintiff consented to its use.5 Compl. lltf 14,
36-37 F.C,C. v. Florida Power Corp.,480 U.S. 245, 252 (9e7); Ruckelshaus v.
Monsanto Co.,467 U.S. 986, 1007 (1984). Therefore, the Court dismisses Plaintiffs
takings claims under RCFC 12(bX6) for failure to state a claim upon which reliefcan be
granted.

   V.      Conclusion

          For the reasons set forth above the Court GRANTS Defendant's Motion to
Dismiss Counts I, II and IV for lack of subject matter jurisdiction pursuant to RCFC
 l2(b)(1) and GRANTS Defendant's Motion to Dismiss Plaintiff s takings claims for
 failure to state a claim pursuant to RCFC 12OX6). The Clerk is directed to enter
judgment accordingly.


                                                              EDWARD      J:   AMICH
                                                              Senior Judge




        5 In his
                  responsive brief, Plaintiffalso asserts that he was coerced into consenting
to wearing a radio transmitter. Pl. Br. 10. Even if the Court were to credit this allegation,
this court lacks jurisdiction for such a claim. See Crocker v. United States, 125 F.3d
147 5, 1476 (Fed. Cir. 1997) (Tucker Act does not create jurisdiction in the Court of
Federal Claims for a party contesting the propriety ofa seizure); Tabb Lakes, Ltd. v.
united states,10 F.3d 796, 802 (Fed. Cir. 1993) ("[The] claimant musr concede the
validity of the government action which is the basis ofthe takings claim to bring suit
under the Tucker Act.).
