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                                                                                     No. 15-1271 C
                                                                                  Filed: June 30,2016
                                                                                NOT TO BE PUBLISHED

,**,i,t:t******** ****{'                              *:t   **r.*{'   **   1.   :}   ****    !t   ****    1.   *            FILED
                                                                                                                          JUN 3 0 20t6
RAFERM. HARRISON,
                                                                                                                         U.S. COURTOF
                                                                                                                         FEDERAL CLAIMS
                        Plaintiff, pro se,



THE UNITED STATES,

                        Defendant.


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             **   ri.   :t *.   :1.   *:t ,f * * * t * *1.*,t*,* * *:t***            *****        *+ *   t**'

Rafer M. Harrison, Marianna, Florida, Plaintiff, prcr                                                              se.

Joseph Edward Ashman, United States Department of Justice, Commercial Litigation Branch,
Washington, D.C., Counsel for the Govemment.

             MEMORANDUM OPINION GRANTING THE GOVERNMENT'S MOTION TO
                             DISMISS AND FINAL ORDER

BRADEN, -/adge.


       I.               RELEVANTFACTUALBACKGROUND,'

         Mr. Rafer Harrison is an inmate at the Federal Correctional Institution in Marianna,
Florida. Am. Compl. at 1. A jury convicted Mr. Harrison on one count of aggravated sexual abuse
of a child under 12 years old, in violation of l 8 U.S.C. $ 2241t c1,'z and one count of abusive sexual


                        I The facts discussed herein were derived from the February 10, 2016 Amended Complaint
("Am. Compl.").

                        2
                            Section 2241(c) ofthe Sexual Abuse Act of 1986 provides:

                        With children.-Whoever crosses a State line with intent to engage in a sexual act
                        with a person who has not attained the age of 12 years, or in the special maritime
                        and territorial jurisdiction of the United States or in a Federal prison, or in any
contact with a child, in violation of 18 U.S.C. gg 2244(a)(1)' and 2244(c)." See United States v.
Harrison,296 F.3d 994,995 (10th Cir. 2002) (affirming defendant's conviction and dismissing
alleged judicial and prosecutorial misconduct claims).




       prison, institution, or facility in which persons are held in custody by direction of
       or pursuant to a contract or agreement with the head of any Federal department or
       agency, knowingly engages in a sexual act with another person who has not attained
       the age of 12 years, or knowingly engages in a sexual act under the circumstances
       described in subsections (a) and (b) with aaother person who has attained the age
       of 12 years but has not attained the age of 16 years (and is at least 4 years younger
       than the person so engaging), or attempts to do so, shall be fined under this title and
       imprisoned for not less than 30 years or for life. If the defendant has previously
       been convicted of another Federal offense under this subsection, or of a State
       offense that would have been an offense under either such provision had the offense
       occurred in a Federal prison, unless the death penalty is imposed, the defendant
       shall be sentenced to life in Drison.

18 U.S.C. $ 2241(c).

       3
           Section 2244(a) ofthe Sexual Abuse Act of 1986, in relevant part, provides:

       Sexual conduct in circumstances where sexual acts are punished by this      chapter.-
       Whoever, in the special maritime and tenitorial jurisdiction of the United States or
       in a Federal prison, or in any prison, institution, or facility in which persons are
       held in custody by direction ofor pursuant to a contract or agreement with the head
       of any Federal department or agency, knowingly engages in or causes sexual
       contact with or by another person, if so to do would violate-

       (1) subsection (a) or (b) of section 2241 of this title had the sexual contact been a
       sexual act, shall be fined under this title, imprisoned not more than ten years, or
       both[.]

18 U.S.C. $2244(a).

       a
           Section 2244(c) ofthe Sexual Abuse Act of 1986 provides:

       Offenses involving young children.-lf the sexual contact that violates this section
       (other than subsection (a)(5)) is with an individual who has not attained the age of
       12 years, the maximum term of imprisonment that may be imposed for the offense
       shall be twice that otherwise provided in this section.

18 U.S.C. $ 22aa(c).
 il.   RELEVANTPROCEDURALHISTORY,

       On October 26, 2015, Mr. Rafer Harison ("Plaintiff') filed a Complaint ("Compl.") in the
United States Court of Federal Claims alleging that the United States ("the Govemment") breached
treaty and fiduciary duties owed to Plaintiff under Sections 450f and 450j-1 of the Indian Self-
Determination and Education Assistance Act by negligently providing less than the full statutory
funding and thereby denying Plaintiff indirect costs for: Tribal law enforcement programs;
operation of Tribal housing and urban development; operation of Navajo Tribal health care
programs; operation of Tribal environmental programs; and maintaining historical properties. See
25 U.S.C. $ 450b (defining "indirect costs," as those that are "incuned for a common or joint
purpose benefiting more than one contract objective, or which are not readily assignable to the
contract objectives specifically benefited without effort disproportionate to the results achieved").
Compl. at 1-6.

        On October 26,2015, Plaintiff also filed a Motion For Leave To Proceed In Forma
Pauperis alrrd aNotice Of Directly Related Cases: Peters v. United States, No 15-528C; Ballard v.
 United States, No. 15-799; Little Coyote v. United States, No. 15-723; Fourstar v. United States,
No 15-014; and Jones v. United States, No. 15-806. Plaintiffs case initialiy was assigned to the
Honorable Thomas C. Wheeler. On November 5, 2015, pursuant to Rule 40.1(b.)5 of the Rules of
the United States Court ofFederal Claims ("RCFC"), this case was reassigned to the undersigned
judge.

      On November 12,2015, the court granted Plaintiff s Motion For Leave To Proceed               .fri
Forma Pauperis.

       On December 7,2015, the Government filed a Motion To Dismiss, pursuant to RCFC
12(bX1).6

     On January 6,2016, Plaintiff filed a Motion To Amend Complaint, with an Amended
Complaint ("Am. Compl.") attached thereto. On January 14, 2016, the Govemment filed a
Resoonse.


       5
           nule +O.t1b; of the United States Court ofFederal Claims, in relevant part, provides:

       To promote docket efficiency, to conform to the requirements of any               case
       management plan, or for the efficient administration ofjustice, the assignedjudge,
       either on a party's motion or on the court's own initiative, may order the transfer
       ofall or any part of a case to anotherjudge upon the agreement ofbothjudges.

RCFC 40.1(b).

       o  Rule 12(b)(1) of the United States Court of Federal Claims, in relevant part, provides:
"Every defense to a claim for reliefin any pleading must be asserted in the responsive pleading if
one is required. But a party may assert the following defense[] by motion: [] lack of subj ect-matter
jurisdiction[.]" RCFC 12(b)(1).
        On February 10,2016, pursuant to RCFC 15(a)(2),7 the court granted Plaintiffs January
6, 2016 Motion To Amend Complaint, and Plaintiffs Amended Complaint was filed, alleging a
claim for wrongful imprisonment and requesting $700,000 in compensatory damages, appointment
of counsel, and other relief. Am. Compl. at2. The February 10, 2016 Amended Complaint also
alleged that Plaintiffs rights were violated under: the "bad men" clause ofthe Fort Sumner Treaty
of 1868, also known as the Navajo Treaty;8 l8 U.S.C. g 401(3);e and the 2015 Regulatory Act.r0
Am. Compl. at 2.


       7
          nute tSla;i2; ofthe United States Court ofFederal Claims, in relevant part, provides: "ln
all other cases, a party may amend its pleading only with the opposing party's w tten consent or
the court's leave. The court should freely give leave whenjustice so requires." RCFC 15(a)(2).

       8
           The Fort Sumner Treaty of 1868, in relevant part, provides:

       Ifbad men among the whites, or among other people subject to the authority ofthe
       United States, shall commit any wrong upon the person or property ofthe Indians,
       the United States will, upon proof made to the agent and forwarded to the
       Commissioner of Indian Affairs at Washington City, proceed at once to cause the
       offender to be arrested and punished according to the laws ofthe United States, and
       also to reimburse the injured persons lor the loss sustained. . . .

       And the President may prescribe such rules and regulations for ascertaining
       damages under this article as in his judgment may be proper; but no such damage
       shall be adjusted and paid until examined and passed upon by the Commissioner ol-
       Indian Affairs, and no one sustaining loss whilst violating, or because of his
       violating, the provisions of this treaty or the laws of the United States, shall be
       reimbursed therefor.

Fort Sumner Treaty of 1868, art. I, 15 Stat. 667.

       e
           Section 401 ofthe 21st Century Department ofJustice Appropriations Authorization Act,
in relevant part, provides:

       A court of the United    States shall have power to punish by fine or imprisonment,
       or both, at its discretion, such contempt of its authority, and none other, as . . .

       (3) Disobedience or resistance to its la*ful writ, process, order, rule, decree, or
       command.

18 U.S.C. $ 401.

        r0
          Although Plaintiff did not provide a citation for the "2015 Regulatory Act," the court
assumes Plaintiffs reference was to the Indian Gaming Regulatory Act,25 U.S.C. $ 2713, that
generally provides for imposing fines against tribal operators of Indian games or management
contractors engaged in gaming for violations ofthe statute. ,See 25 U.S.C. $ 2713
      On February 25,2016, the Govemment filed a Motion To Dismiss Plaintiff s Amended
Complaint ("Gov't Mot."), pursuant to RCFC l2(b)(l ).

        On March 28, 2016, Plaintiff filed a Motion To Stay And Consolidate Cases; And A
 Motion For Extension Of Time To Amend And Reply To Defendant's Motion To Dismiss. On
 April 6, 2016, Plaintiff filed a Motion For Service Of March 28,2016 Motion For Extension Of
 Time To Amend And Reply To Defendant's Motion To Dismiss. On April 12, 2016, rhe
 Govemment filed a Response to the March 28,2016 Motion To Stay And Consolidate Cases. On
 April 13, 2016, the court issued an Order, granting Plaintiff s March 28, 2016 Motion For
 Extension Of Time To Amend And Reply To Defendant's Motion To Dismiss and reserved
judgment on Plaintiff s Motion To Stay And Consolidate Cases until the parties completed briefing
on the Govemment's February 25,2016 Motion To Dismiss.

        On May 3,2016, Plaintiff filed a Reply To Defendant's Motion To Dismiss The Amended
Complaint; And Motion For Extension Of Time To Reply To Motion To Dismiss Amended
Complaint. On May 25, 2016, the court construed Plaintiff s May 3,2016 Reply and Motron as a
Response ("P1. Resp.") to the Govemment's February 25,2016 Motion To Dismiss Amended
Complaint and issued an Order directing the Govemment to reply. Order, ECF No. 24.

        On June 8, 2016, the Govemment filed a Reolv.

IIL     DISCUSSION.

            A.   Standard Of Review Under RCFC        l2(bxl).
        A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law. . . is properly raised by a [Rule] 12(bX1) motion." Palmer v.
United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(bX1) (allowing a party to
assert, by motion, "fllack 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 [ofthe complaint] to be true and to draw all reasonable inferences in plaintiff s favor."
Henke v. United States,60 F.3d, 795,797 (Fed. Cir. 1995).

            B. Whether The Court Has Jurisdiction To Adjudicate The Claims In                   The
                 February 10, 2016 Amended Complaint.

                     L Pro Se Considerations.

       The court is cognizant of the obligation to construe liberally pro se plaintiffs' pleadings.
             Gamble,429U.S.97,106 (1976) (holding that the "pro se document is to be liberally
See Estelle v.
construed."). Nevertheless, pro se plaintiffs still must "comply with the applicable rules of
procedural and substantive law." I(alsh v. United States,3 Cl. Ct. 539,541 (1983).
                      2. The Government's Argument.

        The Government argues that the court does not have jurisdiction to adjudicate the claims
alleged in the February 10, 2016 Amended Complaint regarding violations of the "bad men" clause
of the Fort Sumner Treaty of 1868, 18 U.S.C. g 401(c), the Indian Self-Determination and
Education Assistance Act, and the 2015 Regulatory Act, because none ofthese statutes are money-
mandating and Plaintiff has not identified any express or implied contract with the United States.
Gov't Mot. at 1.

        As to Plaintiff s claim that federal judicial and law enforcement officials engaged in
criminal conduct, the court does not have jurisdiction to adjudicate claims under the federal
criminal code.ll Gov't Mot. at 3. In addition, the court does not have jurisdiction to adjudicate
any allegation of tortious or discriminatory conduct by federal judicial and law enforcement
officials. Gov't Mot. at 3 (citing Coleman v. United States, 116 Fed. Cl. 461,471 (2014);
McCauley v. United States,38 Fed. Cl. 250,265 (1997)). As to Plaintiff s claim that "defendants"
violated the "bad men" clause, Plaintiff failed to identiff particular individuals as "bad men" or
identifli a criminal act committed by the individuals. Gov't Mot. at 4-5 (citing Jones v. United
States, 122 Fed. Cl. 490, 519-20 (2015)). Accordingly, Plaintiffs February 10, 2016 Amended
Complaint does not allege a claim that the court has jurisdiction to adjudicate.

                      3. Plaintiffl s Response.

        Plaintiff responds that the court has jurisdiction to adjudicate his claims under the "bad
men" clause of the Fort Sumner Treaty, because the "facts, circumstances and requested
consolidated case(s) reflect a money-mandating statute or express or implied contract with the
United States[.]" Pl.Resp.at5. Specifically, Plaintiff contends that the "defendants" Curtis Leroy
Hansen and Gregory J. Fouratt are not shielded by absolute immunity for the "unreasonable and
retroactive application" of: the 2011 Enhanced Disciplinary Sanctions;12 the Adam Walsh Child
Protection and Safety Act,t3 42 U.S.C. $ 16911 et seq.; the Sex Offender Registration and




       I'   Plaintiff identified a federal judge, who has immunity when performing judicial
functions, and an Assistant United States Attomey, who has immunity with respect to "conduct in
initiating a prosecution and in presenting the State's case, insofar as that conduct is intimately
associated with the judicial phase of the criminal process." Gov't Mot at 5 (citing Pinaud v. County
ofSuffolk,52 F.3d 1139, 114'l (2d Cir. 1995) (quoting Burns v. Reed,500 U.S. 478, 486 (1991));
Ashelman v. Pope,793 F.2d 1072, 1075 (9th Cir. 1986)).

       12
            The court was unable to ascertain a money-mandating statute relevant to this citation.

       13
         The Adam Walsh Child Protection and Safety Act also is refened to as the Sex Offender
Reeishation and Notification Act. See 42 U.S.C. 6 16901.
Notification Act,t4 42 U.S.C. $ 16913; Tribal Sex Offender Registrarion,r5 17 N.N.C. g 220; Sex
Offender Management Assistance,r6 42 U.S.C. $ 16926; and notification under 18 U.S.C. $
4042(B).t7 Pl. Resp. at 5.

                        4. The    Court's Resolution.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act,28 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 iiquidated 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
Claimsl whenever the substantive right exists." UnitedStates v. Testan,424U.5.392,398 (1976).

       To pursue a substantive right under the Tucker Act, a plaintiff must identif and plead an
independent contractual relationship, constitutional provision, federal statute, and/or executive


        la Section 16913 of the Sex Offender Registration and NotificationAct, in relevant part,
provides: "A sex offender shall register, and keep the registration cunent, in each jurisdiction
where the offender resides, where the offender is an employee, and where the offender is a
student." 42 U.S.C. $ 16913.

        15
              Plaintiff did not provide a citation for "Tribal Sex Offender Registration." The court
assumes Plaintiffs reference was to Title l7 of the Navajo Nation Code, 17 N.N.C. $ 220,Ihat
requires the defendant to register as a convicted sex offender for a minimum of 15 years.

        16
          Section 16926 of Ihe Sex Offender Registration and Notification Act, in relevant part,
provides: "The Attomey General shall establish and implement a Sex Offender Management
Assistance program (in this subchapter referred to as the "SOMA program"), under which the
Attomey General may award a $ant to a jurisdiction to offset the costs of implementing this
subchapter." 42 U.S.C. $ 16926.

          Plaintiff cited to 18 U.S.C. $ 2042(8). Pl. Resp. at 5. The court assumes Plaintiff
         17
                                                                                                   s
reference was to 18 U.S.C. g a0a2(cXlXB), which in relevant part, provides:

        Notice of sex offender release.{l) In the case of a person described in paragraph
        (3), or any other person in a category specified by the Attomey General, who is
        released from prison or sentenced to probation, notice shall be provided to . . .

        (B) a State, tribal, or local agency responsible for the receipt or maintenance ofsex
        offender registration information in the State, tribal, or local jurisdiction in which
        the person    will   reside.

18   u.S.C.   $ a0a2(cX1).
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
identifu a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisher v. United States, 402 F.3d 1167 , 1172 (Fed. Cir. 2005) (en banc) ("The
TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidentifyaseparate
 source of substantive law that creates the right to money damages. . . . [T]hat source must be
 'money-mandating."'). Specifically, a plaintiff must demonsftate that the source of substantive
law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
 Govemment[.]" Testan, 424 U.S. at 400. And, plaintiff bears the burden of establishing
jurisdiction by a preponderance of the 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 . . . [plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").

       The February 10,2016 Amended Complaint alleges a violation of 18 U.S.C. $ 401(3). Am.
Compl. at 2. But, that statute concerns federal crimes of contempt. The United States Court of
Federal Claims has "no jurisdiction to adjudicate any claims whatsoever under the federal criminal
code[.]" Joshuav. United States, 17 F.3d 378, 379 (Fed. Cir.1994).

        The February 10, 2016 Amended Complaint also alleges a violation of the 2015 Regulatory
Act,25 U.S.C. $ 2713. Am. Compl. at 2. The court interprets this allegation to reference the
Indian Gaming Regulatory Act,25 U.S.C. $ 2713. The court, however, does not have jurisdiction
to adjudicate Plaintiffs claim under the Indian Gaming Regulatory Act, because it is not money-
mandating. See Alabqma v. PCI Gaming Auth.,801 F.3d 1278, 1284 (l ith Cir. 2015) ("[T]he
ultimate remedy available [for the tribe] is that the Secretary may set forth the terms under which
the tribe may engage in class III gaming on Indian lands within the state. [The Indian Gaming
Regulatory Act] also expressly provides states with a cause ofaction . . . . No remedy other than
an injunction is provided.") (citations omitted).

        The February 10,2016 Amended Complaint also alleges a violation of the "bad men"
clause ofthe Fort Sumner Treaty of1868. Am. Compl. at2. Assuming argzendo that the alleged
"bad men" are not shielded by immunity, the court does not have jurisdiction to adjudicate
Plaintiffs claim under the "bad men" clause of the Fort Sumner Treaty of 1868. In order for the
court to adjudicate a claim under that clause, a prerequisite administrative decision by the
Department of the Interior must be issued. See Tsosie v. United States, 11 Cl. Ct. 62,75 (1986)
("[T]here must first be an administrative decision by the Department of the Interior, pursuant to
the treaty, but . . . there clearly [is] a right on the part ofan Indian claimant to seekjudicial review
of that administrative decision in the Court of Claims."); see also Elkv. United States,70 Fed. Cl.
 405,407 (2006) ("[The Fort Sumner Treaty] . . . preclud[es] the payment ofdamages until a claim
is 'thoroughly examined and passed upon by the Commissioner of Indian Affairs."') (citing
Begay v. United States,2l9 Ct. Cl. 599, 602 n. 4 (1979) ("Article I declares that 'no such damage
shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of
Indian Affairs[.]"')). Plaintiffs February 10,2016 Amended Complaint does not reference any
administrative decision, nor allege that Plaintiff exhausted all administrative remedies.
        Plaintiff also argues that the alleged "bad men" are not entitled to immunity due to the
application of: the 2011 Enhanced Disciplinary Sanctions; the Adam Walsh Child Protection and
Safety Act, 42 U.S.C. $ 16911 et seq.; the Sex Offender Registration and Notification Act, 42
U.S.C. $ 16913; Tribal Sex Offender Registration, l7 N.N.C. g 220; Sex Offender Management
Assistance,42 U.S.C. 516926; and notification under 18 U.S.C. $ 4042(B). Pl. Resp. at 5. None
ofthese statutes, however, provide a basis for jurisdiction, because they are not money-mandating.
Therefore, the court does not have jurisdiction to adjudicate the claims based on these statutes.

Iv.    CONCLUSION.

       For these reasons, the Govemment's February 25,2016 Motion To Dismiss is granted.
See RCFC 12(bX1). Other pending motions are denied as moot. The Clerk is directed to dismiss
the February 10,2016 Amended Complaint.

       IT IS SO ORDERED.
