      Jfn tbe mlniteb ~tates ~ourt of jfeberal ~laims
                                    No. 15-329C
                               (Filed July 31, 2015)
                             NOT FOR PUBLICATION

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                         *                                        FILED
                         *
NATALIA V. COOK,         *
                         *                                       JUL 31 2015
              Plaintiff, *                                      U.S. COURT OF
         v.              *                                     FEDERAL CLAIMS
                         *
THE UNITED STATES, and   *
                         *
              Defendant. *
                         *
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                   MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Pending before the Court is defendant's motion to dismiss the case for lack of
subject-matter jurisdiction and for failure to state a claim upon which relief can be
granted, filed under Rules 12(b)(l) and 12(b)(6) of the Rules of the United States
Court of Federal Claims ("RCFC"). Because plaintiff has missed the deadline to
respond, July 2, 2015, dismissal under RCFC 41(b) is warranted. But taking into
consideration plaintiffs prose status, the Court has taken the additional step of
reviewing her complaint and the government's motion to confirm whether
jurisdiction over the subject matter is lacking, and has found this to be the case.

                                I. BACKGROUND

       On March 31, 2015, plaintiff Natalia V. Cook filed this prose action against
the United States and the City of New York. Compl. at 1. Plaintiff raises four
claims in her complaint: (1) the New York City Department of Homeless Services
("DHS") and other municipal entities did not provide her with the basic services
required by state and Federal law; (2) DHS committed an intentional tort by
preventing her from finding work; (3) New York City maintains shelters that violate
basic constitutional and human rights; and (4) in violation of the Fifth Amendment,
DHS took plaintiffs property without providing just compensation. Compl. at 4-5.
       In response, defendant filed a motion to dismiss this case under RCFC
12(b)(l) and 12(b)(6). Defendant challenges each of the plaintiffs claims. First,
defendant argues that DHS and other municipal entities cannot be sued in this
Court because the Court of Federal Claims only has jurisdiction to hear cases
against the federal government. Def. Mot. at 5. Second, defendant argues that the
Tucker Act does not give this Court authority to hear plaintiffs tort claim. Id. at 5-
6. Third, defendant argues that the Fourth and Fourteenth Amendments are not
money-mandating and that the plaintiff cannot use them for monetary recovery. Id.
at 6. Finally, defendant contends that while this Court would have jurisdiction to
entertain a takings claim brought against the federal government under the Fifth
Amendment, if so construed the takings claim should be dismissed under 12(b)(6)
because plaintiff has not provided enough detail to satisfy her pleading
requirement . Id. at 7.

                                  II. DISCUSSION

A. Applicable Legal Standard

       Whether a federal court has jurisdiction to decide the me1·its of a case is a
threshold matter. Steel Co. v. Citizens for a Better Enu't, 523 U.S. 83, 94 (1998)
(quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). "Without jurisdiction the
couTt canno proceed at all in any cause. Jurisdiction is the power to declare the
law, and when it cease to exist, the 011.ly function remaining to the court is that of
announcing the fact and dismis ing the case." Exparte McCardle, 74 U.S. at 514.
The parties or the court sua sponte may challenge the existence of subject matter
jurisdiction at any time. Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804);
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); James v. United
States, 86 Fed. Cl. 391 394 (2009).

       When considering whether to dismiss for lack of jurisdiction, a court assumes
that the allegation in the complaint are true and construes those allegations in the
plaintiffs favor. Henhe v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). Prose
plaintiffs complaints, ' 'however inartfully pleaded,' are held 'to less stringent
 tandard than formal pleadings drafted by lawyers ... .'" Hughes v. Rowe, 449
U.S. 5, 10 n.7 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
However while "leniency with re pect to mere formalities should be extended to a
prose party," Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir.
1987), a pro se plaintiff is not excused from his or her burden of proving, by
preponderance of the evidence, that the court possesses jurisdiction. See Henke, 60
F.3d at 799; McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 188-89 (1936);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).




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B. Analysis

       Under the Tucker Act, the United States Court of Federal Claims has
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. § 1491(a)(l). Congress has thus given our Court the power to hear and
award claims for money damages to which parties are entitled by virtue of specific
laws, usually referred to as a "money-mandating statute." See Contreras v. United
States, 64 Fed. Cl. 583, 588 (2005).

       1. Subject-Matter Jurisdiction

       The government is correct that the complaint does not concern matters
within our jurisdiction under the Tucker Act, 28 U.S.C. § 1491. While a prose
plaintiffs filings must be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), this lenient standard cannot save claims which are outside this court's
jurisdiction from being dismissed. See, e.g., Henke v. United States, 60 F.3d 795,
799 (Fed. Cir. 1995).

       Because this Court can only hear claims against the federal government, see
RCFC lO(a), we do not have jurisdiction over plaintiffs claims against the City of
New York and its municipalities for violations of state law. That is, "[c]laims
founded on state law are ... outside the scope of the limited jurisdiction of the
Court of Federal Claims." See Hicks v. United States, 118 Fed. Cl. 76 (2014)
(quoting Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007). The
actions of a state or municipal government are not taken by the federal government,
and cannot be the basis for a claim within our jurisdiction. Gharb v. United States,
No. 12-911C, 2013 WL 4828589, at *6 (Fed. Cl. Sept. 9, 2013).

       This Court lacks subject matter jurisdiction on other grounds, as well. This
court cannot hear Ms. Cook's tort claims because the Tucker Act expressly limits
our jurisdiction to "cases not sounding in tort." 28 U.S.C. § 1491(a)(l); see also
Sellers v. United States, 110 Fed. Cl. 62, 67 (2013). Further, plaintiffs reliance on
the Fourth and Fourteenth Amendments is misplaced because they are not money-
mandating. And if a statute is not money-mandating, the plaintiff cannot use it to
recover. See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (holding
that the Fourteenth Amendment is not mandating); see also Jones v. United States,
104 Fed. Cl. 92, 99 (2012) (holding that "with the exception of the takings clause of
the Fifth Amendment ... the other Amendments do not require the United States
to pay money for a violation."). Finally, although plaintiff relies on the Fifth
Amendment for her takings claim (which is money-mandating), her claim is against
the City of New York and not the federal government and must be dismissed for lack

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of subject matter jurisdiction, as discussed above. See Souders v. S.C. Pub. Serv.
Auth., 497 F. 3d 1303, 1307 (Fed. Cir. 2007).

      2. Other Matters

       The government's motion in the alternative, under RCFC 12(b)(6), need not
be reached. It rests on the possibility of construing Ms. Cook's takings claim as
concerning the federal government. But while a takings claim based on state or
local government actions may be entertained by our court when a complaint alleges
that the non-federal government entity was acting as an agent of the United States,
see Rose Acre Farms, Inc., v. United States, 373 F.3d 1177, 1196 (Fed. Cir. 2004);
Hasson v. United States, 41 Fed. Cl. 149, 150 (1998), no such allegation may be
reasonably inferred from Ms. Cook's complaint.

       Plaintiffs application for in forma pauperis status is GRANTED. She is
relieved of the obligation to pay the filing fee for this case.

                                III. CONCLUSION

       For the foregoing reasons, the Court GRANTS defendant's motion to dismiss
this case for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(l). The
Clerk shall close the case.

IT IS SO ORDERED.




                                       Judge




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