In the United States Court of Federal Claims

No. 18-928€

(Filed: September 7, 2018)

(NoT To BE PUBLISHED)
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LINDA A. KPAKA and )
MAHAMUD s. KPAKA Il, ) _H __`
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Plaintiffs, ) i l L'h"
§ sEP -? 2018
V.
) u.s. count OF
UNITEI) sTATES, ) FEDEF*A\- CLA‘MS
)
Defendant. )
)

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Linda A. Kpaka and Mahamud S. Kpaka, pro se, NeW Yorl<, NY.

Amelia Lister-Sohotl<in, Trial Attorney, Comrnercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendantl With her on the brief
Were Chad A. Readler, Acting Deputy Assistant Attorney General, Civil Division, and Robert E.
Kirschman, Jr., Director, and Lisa L. Donahue, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER
LETTOW, Senior Judge.

Plaintiffs Linda and Mahamud Kpaka have brought suit seeking equitable relief and
discovery against the United States, naming specifically the United States District Court for the
Southern District of New York and several agencies of NeW York City. Compl. at 2-3.1 They
allege improper treatment by city officials While homeless, Compl. at 5-9, and request this court
to order New York City to produce records of public assistance given by the City to the Kpakas,
Cornpl. at 2-3, 10.

The United States has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the
Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF
No. 7. Mr. and Mrs. Kpaka have not responded in opposition to the government’s motion,

 

lThc complaint names New York City’s Department of Homeless Services and I-Iuman
Resources Administration. Compl. at 2. The complaint also requests this court to order relief
against United States Marshals in New York City, the New York City Police Department, and a
specific city police offloer. Compl. at 2~3.

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although they had filed a supplement to the complaint on July 16, 2018, see Suppl. to Compl.,
ECF No, 6, prior to the government’s motion to dismiss The supplement did not state any new
claims, but contained additional exhibits and facts regarding social services provided to the
Kpal<as and included a draft of a proposed order granting “search and seizure” of electronic
records held by both Nevv Yorl< City’s Department of Horneless Services and its Human
Resources Administration. Id.

Because this court lacks subject-matter jurisdiction over the complaint, the government’s
motion to dismiss the Kpal<as’ complaint is granted

BACKGROUND

The Kpal<as have been homeless and receiving public assistance from New York City
since March 2015. Compl. at 5. During that time, the Kpakas allege that they have experienced,
at the hands of city officers and employees, poor conditions within shelters, sexual harassment,
invasion of privacy, thefts of their public assistance benefits, prescription drug fraud, identity
theft, mortgage fraud, and hate crimes and discrimination based on marital status. Compl. at 5-6.
They specifically mention being forced onto the streets from a shelter room Without explanation
on a cold night, attempted intrusions into their room late at night, a mortgage payment listed in
their Human Resources Administration statement of public assistance When they do not own a
house, and improper payments to shelters on their behalf. Compl. at 6-7. They have been
homeless outside of the shelter system since November 2017. Compl. at 9.

In 20§6, the Kpakas sued for redress of the alleged mistreatment in the United States
District Court for the Southern District of New York. Compl. at 4. Most, but not all, of the
defendants in that case have been dismissed, although the Kpal<as appear to have filed an appeal
With the United States Court of Appeals for the Second Circuit. See Compl. at 4 & n.1; See also
Kpaka v. New York, No. l:l6~cv~05205 (S.D.N.Y.).2 The Kpakas claim that the Southern
District of New Yorlt “shows no concern{] o[ver] [their] [h]ousing matters or [that they] have
been living and suffering inhumanely without reasonable shelter, lavatories[,] and access to
adequate nutrition . . . .” Compl. at 9.3 This suit is still pending against the City of New York
and three Human Resources Administration security officers4

 

2The Kpakas’ complaint asserts jurisdiction “based on a recently dismissed case before
F ederal Coutts in the Southern District of New York[, No. l:l6-cv~05205].” Compl. at 3. This
case, however, is still active. See Kpaka v. New York, No. l:l6~cv-05205 (S.D.N.Y.).

3Tvvo years ago, Linda Kpaka lost an employment discrimination suit in the Southern
District of New Yorlt, Which Was subsequently affirmed by the Second Circuit. See Kpaka v.
Cilj) Univ. ofNew York, No. l4-CV-6021, 2016 WL 4154891 (S.D.N.Y. Aug. 2, 2016), ajjf’d,
708 Fed. Appx. 703 (Zd Cir. 2017). Additionally, Mrs. Kpaka also claims to have filed “several
judicial conduct and disability complaints against several judiciaries in the Southern District [] of
New Yorl< and [NeW York state court].” Compl. at 4. The complaint implies that other state or
federal cases have been filed and might be pending See Compl. at 4, 8,

4See Kpaka, No. l:lG-cv-OSZOS. The United States Was not named as a defendant in the
district court action. Id.
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ln February 2018, due to a decrease in assistance payments, Mrs. Kpal<a requested a
report of the public assistance being provided to her and Mr. Kpalta. Compl. at 7. Mrs. Kpal<a
alleges that a mortgage payment is listed on the report, but she asserts that she does not have a
mortgage. Compl. at 7. She also noted payments to shelters despite being unsheltered since
November 2017. Compl. at 7, 9. The Kpakas sought to obtain from New York City their
“personal financial data records” to determine if they Were victims of identity theft or other
fraud, but “encounter[ed] harassment, hostility[,] or physical threats With every . . . visit.”
Compl. at 7-8, They have been unsuccessful in obtaining the requested personal records, Compl.
at 8, 9, prompting them c‘to petition [this court] against the United States Southern District of
New Yorl< and [New Yorl< City] Human Resources Administration [and] Department of
Homeless Services,” Compl. at 9.

The Kpal<as filed their complaint in this court on June 26, 2018 relating to alleged
mishandling of records of their government benefits and improper actions by governmental
officials. Compl. at 3. They petition this court to order the Southern District ofNew Yorl<; and
the New York City Police Department to “search and seiz[e] [their] official data records . . .”
from April 2015 until the present “for payments paid [] for shelter, heat, housing[,] and nutrition
from the New York City Departrnent of Homeless Services and [} Hurnan Resources
Administration.” Compl. at 3; Suppl. to Compl. at 3. The Kpal<as also request “official data
records” associated With their Social Security Numbers and “calculations of payments made
within the [c]ity agencies for [their] food and shelter costs.” Compl. at 8~9. The Kpakas state
expressly that their claim “is not for monetary judgment against the . . . United States for the
other defendants].” Id. at 10.

STANDARDS FOR DECISION
A. Rule 12(!)) (1) e Lack ofSubject~Ma/tter Jurisdiction

The Tucl<er Act provides this court with jurisdiction over “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)(1). The
Tuclter Act does not, however, provide a plaintiff with any substantive rights United States v.
Tesfan, 424 U.S. 392, 398 (1976). To establish this court’s jurisdiction under the Tucker Act, “a
plaintiff must identify a separate source of substantive law that creates the right to money
damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant
part) (citing United S!a!es v. Mz`tchell, 463 U.S. 206, 2l6 (1983); Testan, 424 U.S. at 398). If a
plaintiff fails to raise a claim under a money-mandating provision, this court “lacks jurisdiction,
and the dismissal should be for lack of subject matter jurisdiction.” Jan ’s Helicopter Serv., In.c.
v. Federal Aviafion Act'mz'n., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cly. v.
United States, 437f F.3d 871, 876 (Fed. Cir. 2007)).

This court may award equitable relief Where specifically authorized by statute. National
Az`r Trajj?c Comrollers Ass ’n v. United States, 160 F.3d 714, 716~l7 (Fed. Cir. 1998) (“Congress
has authorized the Court of Federal Claims to grant equitable relief in certain limited
circumstances, . . . [but there is no] general authority to grant equitable relief . . . .”). Under the
Tucker Act, equitable relief is limited to instances “incidental and collateral to” ajudgment for

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monetary damages 28 U.S.C. § l49l(a)(2); see James v. Caldem, 159 F.3d 573, 580 (Fed. Cir.
1998)

Mr. and Mrs. Kpaka, as plaintiffs, must establish jurisdiction by a preponderance of the
evidence. Trusted lnregralion, ]nc. v. United States, 659 F.3d 1159, ll63 (Fed. Cir. 2011)
(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When
ruling on the government’s motion to dismiss for lack of jurisdiction, the court must “accept as
true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences
in favor of the plaintif .” Id. (citing Henke v. United Slates, 60 F.3d 795, 797 (Ped. Cir. 1995)).
“lf a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of
law.” Gray v. United Smfes, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7
Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1l16 (Fed. Cir. 1985)); see also
RCFC 12(h)(3) (“If the court determines at any time that it lacks subject~matter jurisdiction, the
court must dismiss the action.”).

B. Transfer under 28 U.S.C, § 1631

If a court finds it lacks subject matter jurisdiction over a civil complaint, “the court shall,
if it is in the interest of justice, transfer such action or appeal to any other such court in which the
action or appeal could have been brought at the time it was filed . . . .” 28 U.S.C. § 163 l.
Transfer is in the interest of justice if the claims are “nonfrivolous and . . . should be decided on
the merits.” Ga.lloway Farms, Inc. v. United Sl'ates, 834 F.2d 998, 1000 (Fed. Cir. 1987).

ANALYSIS
I. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction

The government contends that this court lacks jurisdiction, arguing that this court has
jurisdiction only over claims against the United States, may not review district court decisions,
lacks jurisdiction over tort and criminal allegations, and lacks general equitable authority. Def.’s
Mot. at 4-7. In their complaint, the Kpakas assert that this court has jurisdiction because “of a
recently dismissed case before F ederal Courts in the Southern District of NeW Yol'k.” Compl. at
3 (referring to Kpaka, No. l:l6-cv-05205 (S.D.N.Y.)).

lf this court is to exercise jurisdiction over any of Mr. and Mrs. Kpal<a’s claims, it must
do so under the Tucl<er Act, 28 U.S.C. § l49l(a). Other statutory grants of jurisdiction to this
court are inapplicable.

A. Cla.ims Against New York City ’s Departmenr ofHomeleSS Servz`ces and Human Resources
Adminisrration

Under the Tucker Act, this court can only hear claims against the United States, and only
claims for monetary compensation resulting from a breach of contract With the federal
government or from federal government violations of constitutional, statutory, or regulatory law,
excepting tort cases 28 U.S.C. § l491(a). This court may not consider claims against states or
cities or their instrumentalities See, e.g., Bowles v. United Statcs, 639 Fed. Appx. 647 (Fed. Cir.
2016). Accordingly, all requested relief against New York City or its Department of Homeless

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Services or Human Resources Administration, or for an order to the New York City Police
Department or its officers, are outside this court’s jurisdiction and must be dismissed

B. Request to Aajf'udicate Tort or Crfminal Allegations

The Tucl<ei‘ Act excludes tort claims from this court’s jurisdiction. E.g., 28 U.S.C. §
1491(a); see al.so, e.g., NewAm. Shipbuilders, ]nc. v. United States, 871 F.2d 1077, 1079 (Fed.
Cir. 1989). This court also lacks jurisdiction over criminal claims See, e.g., Br'own v. United
Stal‘es, 88 Fed. Cl. 322, 328 (2009) (citing Joshua v. United Smtes, 17 F.3d 378, 379 (Fed. Cir.
1994)).

T he Kpal<;as allege several torts, such as assault, fraud, and invasion of privacy, which
were allegedly perpetrated by private individuals or city employees Compl. at 5-9; Suppl. to
Compl. at 2. While the Kpakas do not cite criminal statutes, they stylize the complaint as
“criminal” and allege being assaulted by several city employees and experiencing theft of their
identities and of government benefits Compl. at 5-9; Suppl. to Compl. at 2. To the extent the
complaint requests relief for torts or crimes, this court lacks jurisdiction over any of these
tortious or criminal allegations, and those claims must be dismissed for lack of jurisdiction

C. Requestsfor Equitable Reliefand Appellate Review

The Kpakas request this court to “issue an order to the United States [District Court for
the] Southern District of New York[,] United States Marshal[]s [in NeW York Cityj, and the Nevv
Yorl< City Police Department . . . for search and seizure of [their] official data records” dating
back to April 20l5. Suppl. to Compl. at 3. For this court to grant equitable relief under the
Tucker Act, the relief must be “incidental and collateral to” a judgment for damages 28 U.S.C.
§ 149l(a)(2); see James, 159 F.3d at 580. The order requested by the Kpakas is not collateral to
any monetary claim against the United States. They specifically disclaim a monetary claim
against the United States. Compl. at 10 (“not for monetary judgments against Defendant United
States”).

Additionally, this court lacks judicial power to issue an order to a federal district court
and to exercise appellate review over district court decisions See Joshua, 17 F.3d at 379 (“The
Court of Federal Claims does not have jurisdiction to review the decisions of district courts or
[their] clerks . . . relating to proceedings before those courts.”). Further, the Kpakas are
attempting to appeal decisions in the proceeding before the Southern District of New York and
that case remains active, Compl. at 4 n.1, and this court lacks jurisdiction to hear cases pending
before other courts, see 28 U.S.C. § 1500 (no jurisdiction where suit is pending in any other
court); Ministerio Roca Solz'da v. United States, 778 F.3d l351, 1353 (Fed. Cir. 2015). If the
Kpal<as believe the District Court for the Southern District of NeW York erred it its decisions, the
proper remedy is to appeal to the United States Court of Appeals for the Second Circuit, as they
have done, not to request re~litigation by another trial court

This court may also not award the relief requested against the United States Marshals
The Marshals are not named as defendants and the complaint alleges no facts alleging any
Wrongdoing by the Marshals. No monetary relief is sought from the l\/iarshals, and therefore the
requested relief cannot be collateral. Instead, it appears the Kpakas merely seek this court to
order the Marshals to execute their “search and seizure” request.
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Because the Kpakas seek only equitable relief that is unrelated to a claim for damages
against the United States, their complaint must be dismissed for Want ofjurisdiction.

II. Transfer under 28 U.S.C. § 1631

The Kpal<as have not requested transfer of their complaint, but this court may transfer
claims upon finding that it lacks jurisdiction, the transferee court has jurisdiction, and transfer is
in the interest of justice. 28 U.S.C. § 1631. The government has preemptively opposed a
transfer request Def.’s Mot. at 8. The court concurs that transfer of this case is not appropriate
Transfer is not in the interest of justice if litigation Would be barred by res judicata or collateral
estoppel, or if the case is pending in another court. See Momagne v. United States, 90 Fed. Cl.
41, 49 (2009) (rejecting transfer after dismissing the case because the plaintiffs already lost on
their claims in the United States Tax Court).

CONCLUSION

For the reasons stated, the government’s motion to dismiss the Kpakas’ complaint is
GRANTED. The clerk shall enter judgment in accord with this disposition

No costs

lt is so ORDERED.

s%rn/

Charlves F. Lettow
Senior Judge

 

 

