                                       ORIGINAL
                 JJn tbe mtniteb ~tate.5 QCourt of jfeberal QClai1n.5
                                            No. 18-293C

                                        (Filed: June 15, 2018)

                                      (NOT TO BE PUBLISHED)                             FILED
 **********************************                                                   JUN 1 5 2018
                                                )
 MICHAEL HARRIS,                                )                                      U.S. COURT OF
                                                                                    i::EDERAL CLAIMS
                                                )
                         Plaintiff,             )
                                                )
            v.                                  )
                                                )
 UNITED ST ATES,                                )
                                                )
                         Defendant.             )
                                                )
 **********************************

       Michael HaiTis, prose, Los Angeles, California.

        Melissa L. Baker, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the motion were
Chad A. Readier, Principal 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, Judge.

        Plaintiff, Michael Harris, brings suit against the United States based on actions of the
Social Security Administration, alleging fraudulent misrepresentations by the Administration
which resulted in denial of medical care and forfeiture of his First Amendment rights. Compl. at
3. 1 The court granted Mr. Harris's motion to proceed informapauperis on April 18, 2018.
Pending before the court is the government's motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim on which relief can be granted, Def.'s Mot. to Dismiss
("Def. 's Mot."), ECF No. 7, which motion is ready for disposition.



        1
        Because the complaint is inconsistently paginated, citations to particular pages will be to
the actual sequential order in which they appear, rather than to the handwritten pagination
shown.



                                                                 7012 3460 0001 7791 7845
                                          BACKGROUND

        This is the third case Mr. Harris has filed in this court in recent months. See Harris v.
United States, No. l 7-1247C, 2017 WL 4249920 (Fed. Cl. Sept. 26, 2017); Harris v. United
States, No. 17-1505C, 2018 WL 833936 (Fed. Cl. Feb. 13, 2018). The prior cases involved
allegations of various criminal and to1iious conduct on the pati of Califomia state courts, the Los
Angeles County Sheriffs Department, the United States Attorney General, and the United States
Postal Service. Both cases were dismissed for lack of jurisdiction and failure to state a claim.

        Mr. Harris incorporates new allegations into the present complaint, namely that the Social
Security Administration fraudulently misrepresented that it would provide medical care to him.
Compl. at 3. He contends that the misrepresentation was made in bad faith at!d left him
"stranded and hostage to a corrupt California judicial branch predicated on extortion,
suppression, oppression, and an appearance of Marxism." Comp!. at 3. Mr. Hanis appends to his
complaint portions of a Medicaid website which he appears to allege contain the
misrepresentations. See Comp!. at 4-6. He also contends that the misrepresentation resulted in
the "absolute forfeiture" of his First Amendment rights. Compl. at 3. He further avers that the
Superior Court of California implemented a "vexatious litigant list to prevent the petitioner from
being able to file civil actions." Compl. at 3.

       As a remedy, Mr. Harris requests $5,000,000 in damages to cover pain and suffering.
Comp!. at 2. He also seeks lifetime coverage of quality healthcare services, including outpatient
recovery accommodations such as "[a] house, therapy, [and] in[-]home care giver services."
Comp!. at 2.

                                 STANDARDS FOR DECISION

         As plaintiff, Mr. Harris has the burden of establishing jurisdiction. See Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The leniency afforded a prose
litigant as to formalities does not relieve his or her from meeting their jurisdictional burden.
Kelley v. Secretary, United States Dep 't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

        Under the Tucker Act, this court has jurisdiction over "any claim against the United
States founded either upon the Constitution, or at!Y Act of Congress or at!Y 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. § 149l(a)(l). The
Tucker Act waives sovereign immunity and allows a plaintiff to sue the United States for money
damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but does not provide a plaintiff
with any substantive rights, United States v. Testan, 424 U.S. 392, 398 (1976). To establish
jurisdiction, "a plaintiff must identify a separate source of substantive law that creates the right to
money damages," i.e., a money-mandating provision of law. Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en bane in relevatlt part) (citing Mitchell, 463 U.S. at 216; Testan,
424 U.S. at 398).

       "If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a
matter of law." Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74


                                                   2
U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (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.") (emphasis added).

                                               ANALYSIS

       Mr. Harris' s claim that the Social Security Administration made fraudulent
misrepresentations regarding his medical coverage is outside this court's jurisdiction and must be
dismissed. This court does not have jurisdiction over claims arising under the Social Security
Act. See Marcus v. United States, 909 F.2d 1470, 1471 (Fed. Cir. 1990). Exclusive jurisdiction
over actions regarding Social Security benefits is conferred upon federal district courts by the
Social Security Act. See 42 U.S.C § 405(g)-(h).

       Likewise, claims sounding in tort are outside the scope of this court's jurisdiction. See 28
U.S.C. §149l(a)(l); Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). Fraudulent
misrepresentation is a claim sounding in tort, over which this court has no jurisdiction. See
Shearin, 992 F.2d at 1197.

        Nor can this court exercise jurisdiction over Mr. Harris's claimed constitutional violation
of the First Amendment because that Amendment is not a money-mandating constitutional
provision. United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) ("[The First
Amendment] does not provide persons aggrieved by governmental action with an action for
damages in the absence of some other jurisdictional basis."). Further, even ifthe First
Amendment were money-mandating, Mr. Harris has failed to plead any factual material that
could raise any right to relief above the speculative level. See Bell At!. Corp. v. Twombly, 550
U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above the
speculative level.").

         To the extent Mr. Harris alleges that the Medicaid website creates an implied-in-fact
contract between himself and the United States, those claims must be dismissed for failure to
state a claim on which relief can be granted. A binding implied-in-fact contract requires
mutuality of intent to contract, consideration, and lack of ambiguity in offer and acceptance.
City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). Further, when the United
States is a party, a representative with actual authority to bind the government must enter into or
ratify any agreement. Id. Mr. Harris does not allege that a representative with authority to bind
the government into contract entered into agreement with him, and any assertion that the
Medicaid website creates an implied-in-fact contract is beyond the realm of plausibility and is
contrary to this court's precedent.

         Finally, to the extent Mr. Harris seeks to assert claims arising out of the alleged conduct
of state governments, state agencies, or private actors, those claims must be dismissed for lack of
jurisdiction. This court exercises jurisdiction over "claim[s] against the United States," not
claims against private or state actors. 28 U.S.C. § 149l(a)(l); see also Moore v. Public
Defender's Office, 76 Fed. Cl. 617, 620 (2007) ("When a plaintiffs complaint names private
paities, or local, county, or state agencies, rather than federal agencies, this court has no
jurisdiction to hear those allegations."). Thus, Mr. Harris's claim against the Superior Court of


                                                 3
California, alleging the implementation of a vexatious litigant list prohibiting him from being
able to file civil actions, is outside this court's jurisdiction and must be dismissed.

        In short, Mr. Harris's complaint alleges claims regarding Social Security benefits, First
Amendment violations, claims sounding in tort, and claims against state actors-all of which are
outside this court's jurisdiction. To the extent Mr. Hanis alleges the existence of an implied-in-
fact contract, such claim would be within this court's jurisdiction, but he fails to state a claim on
which relief can be granted. Because Mr. Harris has failed to plead any facts that would give rise
to jurisdiction in this court and has failed to state a claim on which relief can be granted, his
complaint must be dismissed.

                                         CONCLUSION

        For the reasons stated, defendant's motion to dismiss is GRANTED. The clerk shall
enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.



                                                      Judge




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