                                       ORIGINAL
             3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claims
                                          No. 14-1184C

                                       (Filed: April 17, 2015)
                                                                                       FILED
                                     (NOT TO BE PUBLISHED)

 **********************************                                                  APR 1 7 2015
                                               )                                   U.S. COURT OF
 ERIC ATKINS,                                  )                                  FEOliRAL CLAIMS
                                               )
                        Plaintiff,             )
                                               )
        v.                                     )
                                               )
 UNITED STATES,                                )
                                               )
                        Defendant.             )
                                               )
 **********************************

       Eric Atkins, pro se, Miami, Florida.

        Amelia Lister-Sobotkin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the brief
were Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman,
Jr., Director, and Allison Kidd-Miller, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.


                                      OPINION AND ORDER

LETTOW, Judge.

        Plaintiff, Eric Atkins, seeks relief for alleged tortious and unconstitutional acts committed
by "[t]he police." See Comp!. iii! 1-4. Pending before the court is the government's motion to
dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the Court
of Federal Claims ("RCFC"). See Def.'s Mot. to Dismiss ("Def.'s Mot.") at 1, ECF No. 5. Also
pending before the court is Mr. Atkins' application to proceed informa pauperis. See Pl.'s
Application to Proceed In Forma Pauperis, ECF No. 3.

                                         BACKGROUND

       Mr. Atkins' complaint recites accusations against unnamed police officials and an
unidentified police department. Comp!. iii! 1-4. Mr. Atkins has not stated the particular
circumstances about the police action of which he complains, but he broadly recites that the
police "acted in an unpleasant way," "violated [his] civil rights," and engaged in
"unconstitutional" conduct. Comp!. iii! 1-3. Mr. Atkins also attached to his complaint a letter
regarding administrative claims he previously filed with the Office for Civil Rights ("OCR"), a
component of the Department of Justice. See Comp!. Attach. 1 (Letter from Michael L. Alston
to Atkins (Nov. 20, 2014)). 1 In this letter, Mr. Alston notified Mr. Atkins that OCR "[did] not
have jurisdiction over any of the claims [he had] made" and had "administratively closed [his]
[c]omplaint." Id. Accordingly, Mr. Atkins appears to be seeking review ofOCR's decision that
it lacked jurisdiction to address his claims. See Comp!. at 1 ("This [complaint] is to collect the
following claims from the Department of Justice (OCR) .... "). In terms of relief, Mr. Atkins
demands $250,000 in "[a]ggravated," "[e]xemplary, "[c]ivil rights," and "[p]unitive" damages.
Comp!. iii! 1-4.

                                ST AND ARDS FOR DECISION

        The Tucker Act grants this court "jurisdiction 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. § 149l(a)(l).
The Act waives sovereign immunity, thus permitting a claimant to sue the United States for
monetary damages. United States v. Mitchell, 463 U.S. 206, 212 (1983). However, the Act itself
does not provide a substantive right to monetary relief against the United States. United States v.
Testan, 424 U.S. 392, 398 (1976); see also Martinez v. United States, 333 F.3d 1295, 1302-03
(Fed. Cir. 2003) (en bane). "A substantive right must be found in some other source of law."
Mitchell, 463 U.S. at 216. To satisfy the juridical requirements of the Tucker Act, the plaintiff
must establish an independent right to monetary damages by identifying a substantive source of
law that mandates payment from the United States for the injury suffered. Testan, 424 U.S. at
400; see also Ferreira v. United States, 501 F.3d 1349, 1351-52 (Fed. Cir. 2007) ("[T]o establish
jurisdiction under the Tucker Act for a suit for money damages, 'a plaintiff must identify a
separate source of substantive law that creates the right to money damages,' in other words, 'that

       1
         The Office for Civil Rights within the Office of Justice Programs at the Department of
Justice investigates complaints from individuals who allege unlawful discrimination by an
agency that receives Justice Department funding. See Office of Justice Programs, Frequently
Asked Questions on Filing Civil Rights Complaints, available at http://ojp.gov/about/ocr/
faq_ocr.htm#complaint. OCR has the power to enforce several nondiscrimination statutes,
including claims brought under the Omnibus Crime Control and Safe Streets Act of 1968, 42
U.S.C. § 3789d. Section 3789d may be related to Mr. Atkins' allegations before OCR because it
"concerns discriminatory behavior of law enforcement agencies that receive funding under the
United States Department of Justice, Office of Justice Programs." Aguirre v. San Leandro
Police Dep't, No. 10-04364 CW, 2011 WL 738292, at *3 (N.D. Cal. Feb. 22, 2011); see also
Jones v. Jones, No. CIV.A. 2:03CV417, 2004 WL 3214457, at *4 (E.D. Va. June 15, 2004),
ajf'd, 117 Fed. Appx. 873 (4th Cir. 2004) ("In general, [Section 3 789d] concerns discriminatory
behavior as it pertains to law enforcement or criminal justice agencies.").




                                                 2
source must be 'money-mandating."') (quoting Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en bane in relevant part)).

        Before addressing the merits, the court "must satisfy itself that it has jurisdiction to hear
and decide a case." Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004) (quoting
PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed. Cir. 2002)) (internal quotation
marks omitted). When deciding a motion to dismiss under Rule 12(b)(l) for lack of subject
matter jurisdiction, the court will "normally consider the facts alleged in the complaint to be true
and correct." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The plaintiff bears the burden of
"alleg[ing] in his pleading the facts essential to show [subject matter] jurisdiction" by a
preponderance of the evidence. McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S.
178, 189 (1936); see also Reynolds, 846 F.2d at 748.

                                           ANALYSIS

                                    A. Subject Matter Jurisdiction

        As a preliminary matter, Mr. Atkins raises claims against improper parties. Although the
caption of the complaint lists the United States as the sole defendant, Mr. Atkins challenges the
conduct of an unidentified police department and at least one of its officers. See Comp!. iii! 1-4.
This court does not have jurisdiction to hear claims against states, localities, or state and local
governmental entities, officials, or employees. "[T]he only proper defendant for any matter
before this court is the United States, not its officers nor any other individual." Stephenson v.
United States, 58 Fed. Cl. 186, 190 (2003) (emphasis in original) (citing United States v.
Sherwood, 312 U.S. 584, 588 (1941)); see also 28 U.S.C. § 1491. Therefore, in the absence of
any allegation against the United States, this court is not vested with jurisdiction merely because
Mr. Atkins has named the United States as a defendant. See May Co. v. United States, 38 Fed.
Cl. 414, 416 (1997) (dismissing complaint where plaintiff did not "even intimate how the United
States ... was or would have been involved in the (dispute].") (emphasis in original).

        Mr. Atkins also has not identified "any substantive right enforceable against the United
States" that would confer jurisdiction upon this court. See Testan, 424 U.S. at 398. Mr. Atkins'
claim for damages resulting from "unpleasant" actions of"[t]he police" appears to be a claim
which sounds in tort. See Comp!. iJ 1. This court, however, does not possess jurisdiction to
adjudicate tort claims. See Rick's Mushroom Serv., Inc. v. United States, 521F.3d1338, 1343
(Fed. Cir. 2008) ("The plain language of the Tucker Act excludes from th[is court's] jurisdiction
claims sounding in tort."); see also Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir.
2003) (noting that the Tucker Act limits this court's jurisdiction to "cases not sounding in tort")
(quoting 28 U.S.C. § 149l(a)(l)) (emphasis in original). Mr. Atkins further alleges that "[t]he
police conduct was an unconstitutional action." Comp!. iJ 2. This claim is also jurisdictionally
unavailing because it does not invoke a money-mandating constitutional provision. See Miller v.
United States, 67 Fed. Cl. 195, 199 (2005) ("Although this court may exercise jurisdiction over
claims 'founded ... upon the Constitution,' the scope of this court's jurisdiction over
constitutional claims is limited to claims arising under provisions of the Constitution that
mandate the payment of money.") (citing 28 U.S.C. § 1491). Finally, Mr. Atkins charges the


                                                  3
police with violations of "[his] civil rights," Comp!. '\[ 3, but it is axiomatic that civil rights
violations are excluded from this court's jurisdictional purview. See, e.g., Hernandez v. United
States, 93 Fed. Cl. 193, 198 (2010) ("The court does not have jurisdiction over claims arising
under the Civil Rights Act, as jurisdiction over such claims resides exclusively in the federal
district courts."); Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) ("As courts have
repeatedly held, there is no Tucker Act jurisdiction in the Court of Federal Claims to entertain
claims involving race, sex, and age discrimination or other claims involving civil rights
violations. "). 2

        Finally, to the extent that Mr. Atkins is contesting OCR's decision, this claim also falls
outside the realm of this court's jurisdiction. Under the Administrative Procedure Act ("AP A"), a
court may set aside an agency decision ifthat decision was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA on its own,
however, does not confer jurisdiction, see Califano v. Sanders, 430 U.S. 99, 105 (1977) ("[T]he
AP A is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency
actions."); Union Bank & Trust Co. v. United States, 27 Fed. Cl. 403, 404 (1992), ajf'd, 6 F.3d
788 (Fed. Cir. 1993), and it particularly does not provide for monetary relief, compare Johnson
v. United States, 105 Fed. Cl. 85, 91-92 (2012) (stating that "the APA does not authorize an
award of money damages at all; to the contrary, [S]ection lO(a) of the APA, 5 U.S.C. § 702,
specifically limits the Act to actions seeking relief other than money damages.") (quoting
Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006)) (internal quotation marks omitted)
(alteration in original), and Synernet Corp. v. United States, 41 Fed. Cl. 375, 382 (1998), ajf'd,
215 F.3d 1348 (Fed. Cir. 1999) (citing cases), with Rollock Co. v. United States, 115 Fed. Cl.
317, 329 (2014) (determining that it had subject matter jurisdiction over plaintiffs' claims
brought under the Contract Disputes Act and the Tucker Act, where the claim under the Tucker
Act sought review of a decision by the National Park Service denying moving expenses
potentially available under agreements executed pursuant to the Uniform Relocation Assistance
and Real Property Acquisition Policies Act, 42 U.S.C. §§ 4601-55). Hence, the APA does not
provide the court with juridical power to hear the merits of Mr. Atkins' claims. 3

                                     B. Possibility of Transfer

       Mr. Atkins has not requested that the court transfer his case to a district court.
Nonetheless, the court will consider the possibility of a transfer because Mr. Atkins is proceeding
prose. See Pleasant-Bey v. United States, 99 Fed. Cl. 363, 368 (2011). While dismissal is
generally required as a matter of law if a court lacks jurisdiction to decide the merits of a case,

        2
        Mr. Atkins requests punitive damages as "punishment for the police officer and the
police department." Comp!.'\[ 4. Even if the court had jurisdiction over Mr. Atkins' claims, it
would lack the power to award punitive damages. See Trevino v. United States, 113 Fed. Cl.
204, 209-10 (2013), ajf'd, 557 Fed. Appx. 995 (Fed. Cir. 2014).
       3
          Section 3 789d authorizes an aggrieved person to institute a civil action after exhaustion
of administrative remedies, but such an action may only be filed "in an appropriate United States
district court or in a State court of general jurisdiction." 42 U.S.C. § 3789d(c)(4)(A). See Sims
v. Montgomery Cnty. Comm 'n, 873 F. Supp. 585, 608-09 (M.D. Ala. 1994). This court is not
encompassed within the jurisdictional grant of Subparagraph 3789d(c )( 4)(A).
                                                  4
see Johnson, 105 Fed. Cl. at 91, in limited instances, the court may transfer the action to a
federal court that would have jurisdiction, see Gray v. United States, 69 Fed. Cl. 95, 98 (2005).
Pursuant to 28 U.S.C. § 1631, transfer ofa case is appropriate if"(!) the transferor court lacks
jurisdiction; (2) the action could have been brought in the transferee court at the time it was filed;
and (3) transfer is in the interest of justice." Zoltek Corp. v. United States, 672 F.3d 1309, 1314
(Fed. Cir. 2012); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 819
(1988); Sodexho Marriott Mgmt., Inc. v. United States, 61 Fed. Cl. 229, 241 (2004).

        As the government correctly notes, "it is not in the interest of justice to transfer
Mr. Atkins' case to another court because ... [his] complaint is facially insufficient." Def.'s
Mot. at 7; see also Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987)
("The phrase 'if it is in the interest of justice' relates to claims which are nonfrivolous and as
such should be decided on the merits.") (citing Zinger Constr. Co. v. United States, 753 F.2d
1053, 1055 (Fed. Cir. 1985)); Faulkner v. United States, 43 Fed. Cl. 54, 56 (1999) ("If such
transfer 'would nevertheless be futile given the weakness of plaintiffs case on the merits,' the
deciding court may decline to transfer the case and dismiss it.") (quoting Siegal v. United States,
38 Fed. Cl. 386, 390-91 (1997)). Mr. Atkins' claims are devoid of any factual support; he has
merely offered "naked assertions" of wrongdoing by police which do not form a basis for relief.
As a result, no district court could exercise jurisdiction over his claims. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (noting that a complaint "does not require 'detailed factual
allegations,'" but must put forward more than '"naked assertion[s]' devoid of'further factual
enhancement,"' or "the-defendant-unlawfully-harmed-me-accusation[ s]. ") (quoting Bell At!.
Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). 4

                                      CONCLUSION

        For the reasons stated, the government's motion to dismiss is GRANTED, and
Mr. Atkins' complaint is dismissed pursuant to RCFC l 2(b)(!) for lack of subject matter
jurisdiction. The clerk shall enter judgment in accord with this disposition. 5

        No costs.

        It is so ORDERED.


                                               Charles F. Lettow
                                               Judge




        4
        Because Mr. Atkins has failed to identify the police department or the police officers
involved in the alleged improper acts or provide the location of where such conduct occurred, no
cogent determination on where to transfer the case is even possible.
        5Mr.   Atkins' application for leave to proceed informa pauperis is GRANTED.
                                                  5
