                           ORIGINAL
          lJntW @nfteU $rtutts [.ourt of frltrsl                           @tuims FTLED

                                          No. 14-575C
                                                                                        DEC   I 5 2014
                                   (Filed: December 1 5, 201 4)
                                                                                     -U.S. COUFT  OF
                                                                                            AL CLAIM9

                                                )
ISAAC KELVIN ALLEN,                             )
                                                )
                       Plaintifl                )    Pro Se Plaintiffs; Motion to Dismiss for
                                                )    Lack ofSubject Matter Jurisdiction;
                                                )    RCFC l2O)(1); Plea Agreement
                                                )
THEUNITED STATES         OFAMERICA,             )
                                                )
                       Defendant.               )
                                                )
                                                )
                                                )


       Isaac Kelvin Allen, Beaumont, TX, Plaintiff, pro se.

       Jana Moses, with whom were Stuart F. Delery, Acting Assistant Attomey
       General, Robert E. Kirschman, -/r., Director, and Donald E. Kinner, Assistant
       Director, Commercial Litigation Branch, Civil Division, United States
       Department of Justice, Washington, DC, for Defendant.



                                    OPINIONAND ORDER
KAPLAII, Judge:

       Plaintiff in this case, Isaac K. Allen, filed this gq se action on July 8,2014, seeking to
"overturn" and "declare void" a plea agreement between himself and the United States
Attorney's office for the Middle District of Florida. cunently pending before the court is the
govemment's motion to dismiss the case pursuant to Rules of the Court of Federal Claims
(RCFC) 12(bxl) for lack of subject matter jurisdiction. For the reasons set forth below, the
governrnent's motion is GRANTED.
                                         BACKGROUND'

         On May 31,2007, Mr. Allen was charged in an indictment in the United States District
Court for the Middle District of Florida with two counts of making false statements to a financial
institution and two counts of aggravated identity theft. Complaint (hereinafter "Compl.") at fl 4.
Thereafter, Mr. Allen alleges, he retained counsel to represent him in order to secure a plea
agreement on his behalf. Id. at !f 4. He further alleges that after the U.S. Attomey's Office
presented his attomey with a copy of a written plea agreement, she asked him to sign it
immediately, notwithstanding that he did not fully agree with its terms. Id.

        Mr. Allen alleges that during a plea hearing on September 13, 2007 , held pursuant to
Fed. R. Crim. P. 11, both parties agreed to amend the terms of the plea agreement that Mr. Allen
had previously executed. ]d. at flfl 5-8. Specifically, Mr. Allen claims, the parties agreed to
conect the labeling ofthe felony of aggravated identity theft from a Class D felony (carrying a
Ihree year statutory maximum term of supervised release) to a Class E felony (carrying a one
year statutory maximum term of supervised release). Id. at fl 6. He also alleges that the parties
agreed to revise the facts section ofthe agreement to remove from it any discussion ofthe
conduct ofhis common law wife (who was apparently indicted separately). Id. at tf 7. Finally,
Mr. Allen claims, the parties agreed to reduce the loss amount for sentencing guideline purposes
from "more than $200,000" to "more than $120,000." Id. at ti 8.

        Notwithstanding these agreements, Mr. Allen claims, when the United States District
Court for the Middle District ofFlorida accepted his plea of guilty, none ofthe agreed upon
revisions were included in the plea agreement. Compl. at fl 9. Thereafter, on January 15,2008,
Mr. Allen was sentenced to three years of supervised release for each count of aggravated
identity theft and ordered to pay restitution joint and several with his common law wife. Id.

        On January 26,2009, Mr. Allen filed a motion to vacate, set aside, or correct his
sentence, claiming in part ineffective assistance ofcounsel for failure to alert the district court to
the revised plea agreement. Compl. fl 10. On August 13,2010, the district court denied Mr.
Allen's motion. Id.

         As noted, Mr. Allen filed the instant complaint in this Court (styled a .,Motion to
overtum Plea Agreement") on July 8, 2014. Mr. Allen claims that-as a result of the failure of
his counsel and the U.S. Attomey's office to submit a modified plea agreement for the district
court's consideration, as discussed at the September 13, 2007 hearing-he is now subject to the
terms of both the original agreement (which he signed) and the terms ofthe modifications agreed
to at the hearing. compl. at tltl l, 18-21. Mr. Allen urges that the court invalidate the agreement
that he claims was created as a result of the colloquy that occuned at the hearing, leaving in
place the agreement that he signed. Id. atfl 38. specifically, he requests that he "be released of
all waivers, promises and obligations [contained in the modified agreement]," and requests
further that the Court "declare the entire agreement void." Id. atpage 14.



I
 The facts in this section are taken from the allegations in the complaint, which are assumed to
be true for purposes of ruling on the govemment's motion to dismiss.
                                       DISCUSSION

        The United States Court ofFederal Claims is a court of limited jurisdiction that, pursuant
to the Tucker Act, may hear "any claim against the United States founded either upon the
Constitution, or any Act ofCongress or any regulation ofan 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. $ 1a91(a)(1) (2012). The Tucker Act serves as a waiver
of sovereign immunity and ajurisdictional grant, but it does not create a substantive cause of
action. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir.
2008). A plaintiff, therefore, must establish that "a separate source of substantive law . . . creates
the right to money damages." Id. (quoting Fisher v. United States , 402 F .3d 1167 , ll72 (Fed.
Cir. 2005) (en banc in relevant part)).

          In ruling on a motion to dismiss, the Court assumes all undisputed factual allegations to
be true and construes all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes,416
U.S.232,236 (1974), abrosated on other grounds by Harlow v. Fitzgerald,45T U.S. 800 (19S2).
In considering a motion to dismiss for lack of subject matter jurisdiction, the court may "inquire
 into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933
F.2d991,993 (Fed. Cir. 1991). The plaintiffbears the burden of establishing subject matter
jurisdiction by a preponderance ofthe evidence. Brandtv. United States, Tl0 F.3d 1369,1373
(Fed. Cir. 2013). Pro se plaintiffs are held to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kemer, 404 U.S. 5I9, 520 (1972). Nonetheless, even p19 gg
plaintiffs must persuade the Court that jurisdictional requirements have been met. Kelley v.
 Sec'v. U.S. Dep't ofLabor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

         In this case, plaintiffhas failed to establish that his claims are within the jurisdiction of
this Court. The gravamen of his complaint is a claim that he is now bound by two separate plea
agreements for one conviction (the written agreement he executed and the agreement he alleges
was created orally during his plea hearing by virtue ofthe colloquy between the U.S. Attorney,
his counsel, and the district court). He asks the Court to invalidate the second agreement. While
it is unclear to the court why Mr. Allen believes that he is now subject to two plea agreements,
or why he seeks the invalidation ofthe second alleged agreement (rather than the first), one thing
is clear: as Mr. Allen has expressly stated, he is not asserting a claim for money damages.
PlaintifPs Response to Motion to Dismiss (Pl. Resp. at !f 4).

         It is well established that "breaches ofplea agreements and other agreements arising out
 of the criminal justice system do not ordinarily give rise to claims for money damages," and so
 do not fall within this court's Tucker Act jurisdiction. sanders v. united states,2s2F.3d 1329,
 1335 (Fed. Cir. 2001) (citing 1-95{V-553-P1 v. 1-95{V-553-Dt. 75 F.3d 135, 136 (2d Cir.
 1996) (observing that'1he only remedies available for breach ofa plea agreement are
 enforcement ofthe agreement or affording the defendant an opportunity to withdraw the plea");
 sadeehi v. united States. 46 Fed. cl. 660,662 (2000) ("Because administering the criminal
justice system is an activity that lies at the hea( ofsovereign action, breach of contract arising
out ofthe criminal justice system does not ordinarily give rise to an action under the Tucker Act
for damages.")). As the court of appeals noted in Sanders,
        There are important policy considerations that support this rule. United States
        district courts and corresponding state courts, for example, are assigned the
        primary role in overseeing and enforcing agreements that arise out of and
        implicate the criminal justice system. As the Court of Claims noted in Kania [v.
        United States, 650 F.2d 264, cert.denied, 454 U.S. 895 (1981)1, "the high function
        of enforcing and policing the criminal law is assigned to the courts of general
       jurisdiction and not"     to that court. Kania" 650 F.2d at 268. Under such
        circumstances, "[i]t is particularly unreasonable to suppose that Congress in
        enacting the Tucker Act intended for this court to intervene in the delicate and
        sensitive business ofconductins criminal trials." Id. at269.

252F.3d at 1335-36.

         To be sure, as the Federal Circuit observed in Sanders, it is theoretically possible that an
agreement reached in a criminal case could "provide for monetary liability for breach, assuming
that the prosecutors had authority to enter into such an agreement." 252 F.3dat l335 (citing
Kania, 650 F.2d at268). "But such liability should notbe implied, and could exist only ifthere
was an unmistakable promise to subject the United States to monetary liability. This would
require the same kind ofexpress language (in both written and oral agreements) required by the
unmistakability doctrine conceming govemment liability for the exercise of sovereign power."
Id. (citing United States v. Winstar Com., 518 U.S. 839, 878-80 (1996) (plurality opinion)

        In this case, as noted, Mr. Allen does not allege that his plea agreement with the
govemment provided for monetary liability for a breach, nor could he. And he does not seek
monetary damages; rather, he asks the Court to "overtum" or declare "void" the plea agreement
he claims was entered at the September 2007 hewing. Accordingly, this Court lacks jurisdiction
under the Tucker Act to consider his claims.

                                       CONCLUSION

        On the basis ofthe foregoing, this Court lacks jurisdiction over the plaintiffls complaint.
Thus, the govemment's motion to dismiss is GRANTED, and this case dismissed without
prejudice. The Clerk is directed to enterjudgment accordingly.

       IT IS SO ORDERED.




                                                      Judge




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