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        lln      tbe        @nfte[ $rtutes @ourt of fr e\erst @tsfms
                                           No. 13-975 C
                                       Filed: April 23,2014
                                    NOT TO BE PUBLISHED
                                                            FILED
                                                                                                                                         APR 2      3   2014
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                                                                                                                                     U.S. CCURT OF
                                                                                                                                    FEDERAL CLAIMS
ANTONIO COLBERT,

              Plaintiff, pro se,



THE L]NITED STATES,

              Defendant.


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Antonio Colbert, Washinglon, D.C., Plaintiff , pro                                                      se.

Joshua Ethan Kurland, United States Department of Justice,                                                            civil Division, washington, D.c.,
Counsel for the Govemment.

                                      MEMORANDUM OPINIONAND FINAL ORDER

BRADEN, -/adge.

I.           RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.'

        On December ll, 2013, Plaintiff filed a Complaint in the United States Court of Federal
claims, alleging that the Social Security Administration C'ssA) did not comply with an order
issued by the District of columbia superior Court "to stop deducting money from
                                                                                      [plaintiffs]
monthly benefits . . . and to pay back fees deducted."2 compl. 2. The complaint also allegei
that the SSA "criminally violated [Plaintiffs] 5th,8th and 9th Amendmint Constitutional
[r]ights" and was "involv[ed] with [plaintiff s] [i]dentity being stolen.,' Compl. l.

             I   The relevant facts discussed herein were derived fiom                                                         the December I              l,    2013
Comolaint.

       ' The case referenced by Plaintiff is Colbert v. Social Security Administration, No. 2011
cA  582 (D.c. Sup. ct. sep. 9,20ll) (dismissed for want of prosecution), appeal dismissed as
untimelyfiled, No. l1-1725 (D.C. Ct. App. Feb. 27,2013) Qter curiam).


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                                                                                                              RECEIPT         o.cell l-80G222-1811
        The Complaint seeks $7,500 for withdrawals made by the SSA between July 2012 and
February 2013, together with $10,000 for "back fees." Compl. 2. The Complaint also seeks an
injunction to prevent the SSA from deducting money from Plaintiff s monthly benefits in the
future. Compl. 2. Finally, the Complaint requests $20,000 in punitive damages.' Compl. 1

      On January 22,2014, Plaintiff filed a Motion To Strike. On February 10, 2014, the
Govemment filed a Motion To Dismiss And Response To Plaintiffs Motion To Strike. On
February 21,2014, Plaintiff filed a Motion For Summary Judgment. On March 24,2014, the
Government filed a Response. On April 2,2014, Plaintiff filed a Motion For Default.

il.     DrscussloN.
        A.       Jurisdiction.

         The United States Court of Federal Claims has jurisdiction under the Tucker Act, 2g
 u.s.c. $ 1491, "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. $ 1a9l(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 identi$r
and plead an independent contractual relationship, Constitutional provision, federal statute,
and'/or executive agency regulation that provides a substantive right to money damages. see
Todd v. united states, 386 F.3d 1091, 1094 (Fed. cir. 2004) ("[J]urisdiction under the Tucker
Act requires the litigant to identi$' a substantive right for money damages against the United
states separate from the Tucker Act[.]"); see also Fisher v. United states,402F.3d 1167, 1172
(Fed. cir. 2005) (en banc) (The Tucker Act . . . does not create a substantive cause of action; . .
. a plaintiff must identif, a separate source of substantive law that creates the right to money
damages. . . . [T]hat source must be 'money-mandating."'). Specifically, a plaintiff must

       3
           Plaintiffappears to base the $20,000 amount on 18 U.S.C. g 225(a),which srates:

       (a) Whoever-

                (l)   organizes, manages,   or   supervises   a   continuing financial crimes
       enterprise; and

               (2) receives $5,000,000 or more in gross receipts from such enterprise
       during any 24-month period, shall be fined not more than $10,000,000 if an
       individual, or $20,000,000 if an organization, and imprisoned for a term of not
       less than l0 years and which may be life.

18 U.S.C. $ 22s(a).
 demonstrate that the source of substantive law upon which he relies "can fairly be interpreted as
 mandating compensation by the Federal Government." United States v. Mitchell,463 U.5.206,
 216 (1983) (quoting Testan,424 U.S. at400). And, the plaintiff bears the bwden of establishing
jurisdiction by a preponderance ofthe evidence. See Reynolds v. Army & Air Force Exch. Serv.,
 846F.2d746,748 (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 standard 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 "to
see if la pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. United States,
4l2F.2d 1285,1292 (ct. cl. 1969). Nevertheless, while the court may excuse ambiguities in a
pro se pluntiffs complaint, the cow "does not excuse [a complaint,s] failures."
Henke v. United Stqtes,60 F.3d 795, 799 (Fed. Cir. 1995).

        C.      Standard Of Review For A Motion To Dismiss pursuant To RCFC               l2(bxl).
        A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas of substantive law .              is properly raised by a [Rule] l2(bxl) motion."
Palmer v. United States, 168 F.3d 1310, l3l3 (Fed. Cir. 1999); see a/so RCFC 12(bxl)
(allowing a party to assert, by motion, "lack of subject-matter jurisdiction"). 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 inierences
in plaintiff s favor," Henke, 60 F .3d, at 797 .

        D.      The Court's Resolution Of The Government's February 10,2014 Motion To
                Dismiss.

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

                l,     28 U.S.C, S 1500 Divests The United States Court Of Federal Claims
                       Of Jurisdiction To Adjudicate The Claims Alleged In The December
                       ll,2013 Complaint.

  ,, Plaintiff had a pending appeal before the District of columbia court of Appeals when he
 filed the December 11, 2013 complaint in the United states court of Federal claims. see
 Colbert, No. 11-1725; see also compl.2 (referencing the appellate litigation). That appeal
 appears to be based on the same operative facts, with the same agency defendant as the
 December 11, 2013 complaint. "The united states court of Federai claims shall not have
jurisdiction ofany claim for or in respect to which the plaintiff. . . has pending in
                                                                                      any other court
any suit or process against the [Govemment.]" 28 u.s.c. g 1500; see also (lniied states v.
 Tohono o'odham Nation, l3l s. ct. 1723, 1731 (2011) ('Two suits are for or in respect to the
same claim, precluding jurisdiction in the [United states court of Federal claims], if th"y
                                                                                                  *"
 based on substantially the same operative   facts[.]).   Therefore, Section 1500 divests the court   of
jurisdiction to adjudicate the claims in the December 11,2013 Complaint.

                2.      The United States Court Of Federal Claims Does                    Not   Have
                        Jurisdiction To Adjudicate Social Security Benefits Claims.

        The United States Court of Federal Claims does also not have jurisdiction to adjudicate
claims for social secudty benefits; such claims may be filed only in the district courts. See 42
U.S.C. $ 405(g), (h) (limiting judicial review of final decisions of the Commissioner of Social
Security to United States district courts); see also Marcus v. United States, 909 F .2d 1470, l47l
(Fed. Cir. 1990) ("[T]he [United States Court of Federal Claims] has no jurisdiction under the
Tucker Act . . . over claims to social security benefits[.]").

         Plaintiff has filed similar claims in other courts. .See, e.g., Colbert,No. 2011 CA 582. To
the extent that Plaintiff challenges any ruling from a district court, this court does not have
jurisdiction to adjudicate those claims. see Joshua v. united states,17 F.3d 378, 380 (Fed. cir.
 1994) ("[T]he [United States] Court of Federal Claims "does not have jurisdiction to review the
decisions of district courts . . . relating to proceedings before those courts."); see also Dist. of
columbia ct of App v. Feldman,460 u.s. 462,476 (1983) ("Review of [District of columbia
court of Appealsl determinations can be obtained only in [the united States Supreme court].,').

                3.     The United States Court Of Federal Claims Does Not                       Have
                       Jurisdiction To Adjudicate X'ifth Amendment Due process Claims Or
                       Claims Alleging A Violation Of The Eighth Or Ninth Amendments To
                       The United States Constitution.

        In addition, the December 11,2013 Complaint alleges that the SSA violated plaintifps
rights, as protected by the Fifth, Eighth and Ninth Amendments to the united states
Constitution.

       It  is true that the United States Court of Federal Claims has jurisdiction to adjudicate
monetary claims founded upon the United States Constitution, but that claim must arise under a
constitutional provision requiring the payment of money damages. see Mitchell,463 U.S. at 216
(holding that jurisdiction over claims founded upon the Constitution also must satis& the Tucker
Act's jurisdictional demands); see also Noel v. lJnited states, l6 cl. ct. 166, 169 ( l9'g9) (holding
that claims must arise under a constitutional, regulatory, or statutory provision mandating
payment of money to be within the jurisdiction of the United States Court of Federal Claims.,).

        The Fifth Amendment's Due Process clause is not a money-mandating provision of the
united states constitution. see collins v. united states, 67 F.3d 294, 28g Ged. cir. 1995)
(holding that a due process-
                              _violation "does not obligate the [clovernment to pay money
damages"). The Eighth and Ninth Amendments also are not money-mandatin g. sie Trafny i.
united states,503 F.3d 1339, 1340 (Fed. cir. 2007) (per curiam) (.,Ttte [United States] court of
Federal claims does not have jurisdiction over claims arising rurder the Eighth Amendment[.]");
Russell v. united states,78 Fed. cl. 2gl,2gg (2007) (,,Based on a plain language reading of the
Ninth Amendment, the court does not perceive how the Ninth Amendment ciutJ Ue construed as
a money-mandating source.").
                   4,     The United States Court Of Federal Claims Does Not Have
                          Jurisdiction To Adjudicate Tort Claims Or Grant Punitive Damages.

        Finally, the December 11,2013 Complaint alleges that the SSA tortiously conspired to
 steal   Plaintiffs identity. This court also
                                       does not have jurisdiction to adjudicate tort claims. See
 28 U.S.C. $ 1491 ("The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States . . . in cases not sounding in tort.,,).

         Furthermore, the Amended Complaint seeks $20,000 in punitive damages. Compl. 1.
 The united states court of Federal claims has no authority to grant punitive damages. ,See
 Garner v. united states,230 o. cl. 941, 94344 (19s2) ("[P]unitive damages are not within the
jurisdiction of this court.").4

III'       CONCLUSION.

       Because the court does not have jurisdiction to adjudicate the claims alleged in the
December 11, 2013 complaint, the Government's February 10, 2ol4 Motion To bismiss is
granted. see RCFC 12(bxl). As such, Plaintiffs January 22,2014 Motion To strike, February
21,2014 Motion For Summary Judgment, and April 2,2014 Motion For Default are denied as
moot.

      Accordingly, the clerk of court is directed to dismiss the December 11, 2013 Amended
Complaint.

        In addition to the December 11, 2013 Complaint, Plaintiff has filed numerous complaints
in this court and others.s Based on a review of Plaintiff s claims and correspondence, the court
finds that Plaintiffs contacts with this court reflect "indicia of frivolousness and haiassment,,'
specifically in both the "number and content offilings" and their lack of merit. In re powell,g5l
F.2d 427' 431 (D.c. cir. 1988); see also Hemphill v. Kimberly-Clark corp.,374 F. App'x 41
(Fed. cir. 2010) (following the guidelines discussed in In re powell cinceming anti--filing
injunctions for pro se litigants).




          '
          As a general matter, the united states has not waived its sovereign immunity with
rygard to
           punitive damages. ,see 28 U.s.c. g 2674 ("The united states . . . itutt not be liable
for. . . punitive damages."); vincin v. united states,lgg ct. cl. i62,765 (1972)              curiam)
("[P]unitive damages . . . are not ava able in tort suits against the United statls.").' Qter
                                                                                         -
       t Sr, t.g., Colbert v. United
                                     States,No. l3-9lg (Fed. Cl.) (dismissed Nov. 27,2013),
appeal dismissedNo. l4-5029 (Fed. cir. Jan.9,2014); colbert v. united stares,No. 14-i0
                                                                                       Gea.
cl.) (dismissed Apr.3,2014);   see also cov't Mot. Dismiss 2 n.2 (describing how plaintiff filed a
complaint against the SSA on January 24,2011, which was dismissed for -want of prosecution);
Colbert, No. 201 1 cA 582; Corbert v. cincinnati police Dep,t, g67 F. Supp. zd r+
                                                                                         1n.o.c.
2011) (noting that Plaintiff submitted 21 complaints in one month and describing his history
                                                                                                of
frivolous filings before that, including 49 cases before the District Cou( for -the District
                                                                                                of
Columbia between July 2010 and November 201 1).
        Therefore, Plaintiff has thirty (30) days, pursuant to Rule l1(c)(3) of the Rules of the
United States Court of Federal Claims, to show cause why the court should not issue an anti-
filing injunction. see In re Powell,851 F.2d at 433 (suggesting that a "district court should
consider issuing an order to show cause" before issuing an anti-filing injunction). If Plaintiff
does not do so, the Clerk will be further directed to accept no otler actions or hlings by Antonio
Colbert, without an Order of the Chief Judge of the United States Court of Federal Claims. See
RCFC 110) @arring the filing of unwarranted claims).

       ln the interim, the clerk's offrce shall reject any additional complaints from plaintiff
unless accompanied by the court's required   filing   fee.



       IT IS SO ORDERED.


                                                        Judge
