                                        CORRECTED

           In the United States Court of Federal Claims
                                          No. 20-461C
                                      Filed: April 24, 2020
                                    NOT FOR PUBLICATION


 KENNETH J. FLYNN, pro se,

                     Plaintiff,                            Keywords: Unreported Order,
                                                           Pro Se, Subject-Matter
 v.
                                                           Jurisdiction, Sua Sponte
 UNITED STATES,                                            Dismissal

                     Defendant.


                                             ORDER

        Pro se plaintiff, Kenneth J. Flynn, alleges that several judges of the U.S. Court of
Appeals for the Ninth Circuit who issued preliminary rulings in his pending Ninth Circuit appeal
violated his “due process right to be heard,” discriminated against him, and retaliated against him
for disclosing judicial misconduct. This Court may only hear claims for money damages against
the United States. Mr. Flynn’s complaint does not allege that the United States acted through the
judges to breach a contract he had with the United States or to violate a law that mandates the
payment of money damages by the United States. Accordingly, the Court dismisses without
prejudice Mr. Flynn’s complaint sua sponte for lack of subject matter jurisdiction.

I.     BACKGROUND

        Court documents that Mr. Flynn filed with his complaint reveal that he was prosecuted by
the state of Montana for his involvement in an assault in 2016. The charges against him were
voluntarily dismissed in January 2019 after Mr. Flynn, then represented by appointed counsel,
alleged prosecutorial misconduct in a motion for change of venue.

         Mr. Flynn sued the state-court judge, prosecutors, a police investigator, multiple lawyers
who had served as his appointed counsel, and their private investigators in federal district court
in Montana under 42 U.S.C. § 1983, alleging that they had violated his civil rights in connection
with the prosecution against him. In September 2019, the district court dismissed the case for
failure to state a claim because the defendant-prosecutors and defendant-judge were entitled to
judicial or quasi-judicial immunity, Mr. Flynn’s former legal counsel and their investigators were
not state actors as required for § 1983 liability, and the police investigator had never been served.
Order, Flynn v. Pabst, No. 9:19-cv-00058-DLC, Sep. 30, 2019 (D. Mont.). Mr. Flynn appealed
the dismissal to the Ninth Circuit. Flynn v. Pabst, No. 19-35840 (9th Cir. filed Oct. 3, 2019).

       A January 2020 order by Ninth Circuit Judges Jay Bybee and Sandra Ikuta denied Mr.
Flynn’s emergency motion to review the contents of a thumb drive, his “motion for summary
judgment,” and various other requests. Order, Flynn v. Pabst, No. 19-35840, Jan. 2, 2020. The
order extended Mr. Flynn’s time to submit an opening brief. Id.

        On January 28, 2020, Mr. Flynn filed a request for a case management conference, a
procedure normally reserved under Ninth Circuit rules for exceptionally complex appeals,
asserting that his appeal was “extremely complex.” 1 Mr. Flynn’s motion explained that he was
proceeding pro se against nine attorneys, a judge, and an investigator employed by a law firm,
altogether represented by a total of 14 attorneys. The motion described Mr. Flynn as
“disadvantaged” and concluded that he had “no chance of reasonable briefing[,] nor oral
responses with memory[,] and delayed ability to respond effectively.” The remainder of the
motion detailed ways in which Mr. Flynn was disadvantaged, noting that Mr. Flynn suffered
head injuries, concussions from two car accidents in 2000 and 2019, and an assault in 2016. The
motion described the 2016 assault at issue in his appeal as “boots to my head” and alleged that,
as a result of the assault, Mr. Flynn lost his memory for 60 days.

       On February 27, 2020, Ninth Circuit Judges Ronald Gould and William Canby issued an
order denying Mr. Flynn’s request for a case management conference. That order granted Mr.
Flynn another extension of time to file his opening brief. Finally, the order provided that no
motion for reconsideration would be entertained and denied all other relief requested in the
motion, including a renewed request for appointment of counsel. See Order, Flynn v. Papst, No.
19-35840, filed Feb. 27, 2020.

        On April 13, 2020, Mr. Flynn filed this complaint, which he characterizes as the “second”
complaint in the “same case” as his Ninth Circuit appeal. (Compl. 1.) The complaint alleges
that “five judges from the [Ninth] Circuit have intentionally violated [Mr. Flynn’s] rights.”
(Compl. 3.) It accuses the judges of “bias, cognizable misconduct, retaliation, abusive harassing
behavior, demonstrably egregious hostile manor and discrimination.” (Id.) It alleges that Judges
Gould and Canby’s denial of a case management conference violated Mr. Flynn’s “due process
right to be heard” and “discriminated” against him as a disabled plaintiff. (Compl. 1-2.) The
complaint also insinuates that Judge Bybee contributed to Mr. Flynn’s disability, noting that Mr.
Flynn’s “memory defects [were] enhanced” on February 14, 2020, “by a tainted pepsie [sic.] in
[a] Las Vegas casino ([Judge] Bybee’s home town).” (Compl. 1.) The complaint’s allegation of
“retaliation” specifies only that the judges’ conduct was “retaliation” for Mr. Flynn’s disclosure
of “misconduct over ignoring [his] disability.”

       In its request for relief, the complaint notes that there is a “conflict” in the Ninth Circuit
and requests a “change of venue” or “assign[ment]” of Mr. Flynn’s Ninth Circuit appeal to this


   1
      In exceptionally complex appeals “involving numerous separately represented litigants or
extensive district court/agency proceedings,” the Ninth Circuit may direct, either sua sponte or at
the request of a party, that the parties participate in a case management conference. Circuit
Advisory Committee Note to Ninth Circuit Rule 33-1 (implementing Federal Rule of Appellate
Procedure 33, Appeal Conferences), http://cdn.ca9.uscourts.gov/datastore/uploads/rules/
rules.htm#pID0E01L0HA.

                                                  2
Court. (Compl. 3.) Alternatively, the complaint suggests that “[t]he Supreme Court may be a
proper venue.” (Id.) Further, it requests that this Court “enforce [the] misconduct claim against
[Judges] Gould and Canby.” The figure “$10,000,000” is written and circled directly below the
sentence requesting enforcement.

II.    DISCUSSION

        This Court has a responsibility to ensure that it has jurisdiction over any claims asserted.
See, e.g., St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019). The
Court may dismiss a complaint on its own initiative if “the pleadings sufficiently evince a basis
for that action.” Anaheim Gardens v. United States, 44 F.3d 1309, 1315 (Fed. Cir. 2006).

       This Court’s jurisdiction is established by the Tucker Act, 28 U.S.C. § 1491(a), which
provides:

               The United States Court of Federal Claims shall have 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.

         The Supreme Court has interpreted the Tucker Act to waive sovereign immunity to allow
jurisdiction in the Court of Federal Claims if a claim is (1) founded on an express or implied
contract with the United States; (2) seeking a refund of a payment previously made to the United
States; or (3) based on federal constitutional, statutory, or regulatory law mandating
compensation for damages sustained, unless arising from a tort. See United States v. Navajo
Nation, 556 U.S. 287, 289-90 (2009). “Not every claim invoking the Constitution, a federal
statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money
damages against the United States.” United States v. Mitchell, 463 U.S. 206, 216 (1983); see
also United States v. Sherwood, 312 U.S. 584, 588 (1941) (the United States is the only
defendant against which this Court may hear claims). To invoke this Court’s limited jurisdiction,
a plaintiff must rely on a statute or regulation that is money-mandating, meaning the source of
alleged liability “can fairly be interpreted as mandating compensation by the Federal
Government.” United States v. Testan, 424 U.S. 392, 400 (1976).

        The plaintiff is proceeding pro se, so his pleadings are entitled to a more liberal
construction than the Court would give to pleadings prepared by a lawyer. See Haines v. Kerner,
404 U.S. 519 (1972). Giving a pro se litigant’s pleadings a liberal interpretation and
construction does not divest the pro se plaintiff of the responsibility of having to demonstrate
that he has satisfied the jurisdictional requirements that limit the types of claims the Court of
Federal Claims may entertain. See, e.g., Kelly v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378,
1380 (Fed. Cir. 1987); Hale v. United States, 143 Fed. Cl. 180, 184 (2019).

        The starting point for determining whether this Court has jurisdiction is the complaint,
see Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997), which the Court interprets
liberally.
                                                 3
        This court lacks subject matter jurisdiction over Mr. Flynn’s claim that judges ruling on
motions in his Ninth Circuit appeal violated his due process rights. The due process clause of the
Fifth Amendment is not money-mandating, and claims arising under its provisions do not fall
within the jurisdiction of this Court. Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.
2013).

        Mr. Flynn does not identify a statute or regulation that mandates the payment of damages
by the United States for discriminatory, harassing, or retaliatory behavior by federal judges. The
Court’s effort to construe the complaint liberally reveals no basis from which to infer a theory for
money damages that fits within this Court’s subject matter jurisdiction. Although abusive and
harassing behavior, along with the poisoning that the complaint—implausibly—suggests, might
be construed as tort claims, the Tucker Act specifically excludes tort claims from this Court’s
subject matter jurisdiction.

        The complaint cites to 42 U.S.C. § 1983 in a manner that could either be interpreted as a
description of the civil rights claims underlying Mr. Flynn’s Ninth Circuit appeal or as an
assertion of a separate § 1983 civil rights claim against the Ninth Circuit judges for their rulings
in the appeal. In any case, this Court lacks jurisdiction over claims brought under § 1983, which
only provides for relief against a state or its instrumentalities, and not the United States or its
officials.

        Finally, the Court has no authority to serve as an alternate venue in Mr. Flynn’s Ninth
Circuit appeal because statute vests appellate jurisdiction over “all final decisions of the district
courts of the United States” in the United States Courts of Appeals, which include the Ninth
Circuit. 28 U.S.C.A. § 1291. The Court of Federal Claims is not one of the United States Courts
of Appeals. Indeed, “[b]inding precedent establishes that the Court of Federal Claims has no
jurisdiction to review the merits of a decision rendered by a federal district court.” Shinnecock
Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed. Cir. 2015); see Allustiarte v. United
States, 256 F.3d 1349, 1352 (Fed. Cir. 2001) (dismissing a suit alleging that bankruptcy courts in
the Ninth Circuit took property without just compensation).

III.   CONCLUSION

       No reading of the plaintiff’s allegations supports a jurisdictional basis for proceeding in
the Court of Federal Claims. Accordingly, the plaintiff’s complaint is DISMISSED without
prejudice pursuant to Rules 12(b)(1) and 12(h)(3) of the Rules of the Court of Federal Claims.
The Clerk is directed to enter judgment accordingly. No costs are awarded.

       It is so ORDERED.

                                                                      s/ Richard A. Hertling
                                                                      Richard A. Hertling
                                                                      Judge




                                                 4
