                ORIGIflIAI.
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                                                                                            No. 15-708 C
                                                                                      Filed: November 4,2015
                                                                                                                           FILED
                                                                                     NOT TO BE PUBLISHED                  Nov   - 4 20t5
*****        +   *,t * * * * * + * * * * * *,1. :*                 :1.   :*   *'* * * * * * * * * * * * *'1. *           U.S. COURT OF
                                                                                                                         FEDERAL CLAIMS


ERIC L. NATHAN,

                 Plaintiff, pro se,




THE UNITED STATES,

                 Defendant.


**   :t :t   ****    :* r.   *   *,1.   * * *'t * *   +   *   :*    :1.   ****t*        r(   ***   :*   * * +,r   + {.



Eric L. Nathan, Lancaster, California, pro                                                               se.


James Robert Sweet, United States Departrnent of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

                                                  MEMORANDUM OPINION AND FINAL ORDER

BRADEN,,/adge.

I.                RELEVANT FACTUAL BACKGROUND.I

                    0, 1995, Eric L. Nathan was convicted in the Superior Court of Califomia for
                  On October                  I
the County ofLos Angeles ofone count of attempted first degree residential burglary in violation
of califomia Penal code $$ 459, 664. Compl., Ex. K, at A-14, A-17. On July 31, 1997, rhe
Califomia Court of ,+ppeils affirmed the conviction for attempted burglary, pursuant to Mr.
Nathan's appeal. compl . at 1, 4. Mr. Nathan alleges that the califomia court of Appeals
improperly'affirmed a conviction for burglary, a crime for which he was not charged, instead of




        rThe relevant facts were derived from Plaintiff s July 7,2015 Complaint and exhibits
attached thereto ("Compl. Exs. A, D, J, K").
attemptedburglaty, the crime for which he was charged and convicted.2 Compl. at 4-5 (emphasis
added).

II.       PROCEDURALHISTORY.

        On July 7, 2015, Eric L. Nathan ("Plaintiff') filed a Complaint ("Compl.") in the United
States Court of Federal Claims, seeking $1,800,000 for "unjust conviction & imprisonment" and
violation of his constitutional right to Due Process under the Fouteenth Amendment. That same
day, Plaintiff also filed a Motion For Leave To Proceed 1n Forma Pauperis.

      On September 2,2015, Plainti{f s luly 7,2015 Motion For Leave To Proceed In Formct
Pauperis was granted.

       On September 8, 2015, the Govemment filed a Motion To Dismiss ("Gov't Mot ")'
pursuant to Rules 12(bXl) and l2(b)(6) ofthe Rules ofthe United States Court ofFederal Claims
('RCFC').

       On September 25, 2015, Plaintiff filed a Motion For Default- Judgment ("P1. Mot ")'
pursuanl to Ruie 55(a) ofthe Federal Rules ofCivil Procedure ("FRCP").3 That same day, Plaintiff
also filed a Response to the Govemment's Motion To Dismiss ("P1. Resp.").

III.      DISCUSSION.

          A.   Jurisdiction.

       The United States Court ofFederal Claims hasjurisdiction under the Tucker Act, 28 U.S.C.
        ,,to render judgment upon any claim against the United States founded either upon the
$ 1491,
Constitution, or any Act of Congress or any regulation of an executive department, oI upon any
express or implied contract with the United States, or for liquidated or unliquidated damages in


         Although Plaintiff conectly points out that in People v. Nathan,No.8102092 at 14 (Cal.
          2

Ct. App. Jul. 3l,1997), the Califomia Court of Appeals incorrectly refened to his crime as
burglary, instead of attempted burglary, it is clear from other references to attempted burglary in
the*opinion that the court affirmed his charge of attempted burglary and did not improperly affirm
a charge for which Plaintiff was not convicted ld. at 4, 5.

          On September 25, 2015, Plaintiff filed a Motion For Default Judgment pursuant to FRCP
          3

55, citing to thi Government's failure to answer or respond to Plaintiff s complaint within
                                                                                                    the 60
day perio'd. Pl. Mot. at I . The Plaintiff, however, miscalculated the  last day in the  period by  failing
to account for it landing on a weekend, followed by a Monday that was a federal holiday. ,See
RCFC 6(l) ("When the period is stated in days or a longer unit of time: (A) excluding the day of
the event ti-rat triggers the period: (B) count every day, including intermediate Saturdays, Sundays,
and legal holidays; and (b) include the last day of the period, but if the last day is a Saturday,
S'nda!, or tegai trotiAay, the period continues to run until the end of the next day that is not a
saturduy, sun-day or legal holiday."). Moreover, in Plaintiffs september 25,2015 Response, he
concedes that the Government's september 18,2015 Motion To Dismiss was timely
                                                                                                filed' Pl.
                                                                                       is denied  as moot.
Resp. at 1. Thus, Plaintiff s September 25,2015 Motion For Default Judgment
cases not sounding in  tort." 28 U.S.C. $ 1a91(a)(l). The Tucker Act, however, is "ajurisdictional
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." United States v. Testan,424U.5.392,398 (19'76).

        To pursue a substantive right under the Tucker Act, a plaintiff must identifr and plead an
independent contractual relationship, constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d 1091, 1094 (Fed. Cir. 2004) ("Ulurisdiction 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,402F.3d 1167,1172 (Fed. Cir. 2005) (en banc) ("The
TuckerAct... does not create a substantive cause ofaction; ... a plaintiff must identify a separate
                                                                           .
source of substantive law that creates the right to money damages. . . [T]hat source must be
 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
 law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
 Govemment[.]" Testqn, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance ofthe evidence. See Reynolds v. Army & Air Force Exch. Serv.,
 846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
 in question . . . [the plaintiff] bears the burden of establishing subject matter jurisdiction by a
 preponderance of the evidence.").

        B.        Standard Of Review For Pro Se Litigants.

         Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (1972) (holding IhaI pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [a pro se]
llaintitihas a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. Ct. 456,
+OA ftSOS). Nevertheless, while the court may excuse ambiguities in apro se plaintiff s complaint,
           i'does not excuse
the court                     [a complaint's] failures." Henke v. [Jnited States, 60 F.3d 795,799
(Fed. Cir. 1995).

        C.        Standards For Motion To Dismiss.

                  1.     Under RCFC    l2(bxl).
        A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas of substantive law            is properly raised by a [Rule] l2(b)(l) motion[.]"
Falmer u. United States, t 6g F.3d 13 10, 1313 (Fed. Cir. 1999); see a/so RCFC 12(bXl) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, "a court
must accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable
inferences in favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011).
               2.      UnderRCFC 12(bX6).

        A challenge to the United States Cow of Federal Claims' "[ability] to exercise its general
power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] l2(b)(6)
motion[.]" Palmer, 168 F.3d at 1313; see a/so RCFC 12(b)(6) ("Every defense to a claim for relief
in any pleading must be asserted in the responsive pleading . . . . But a party may assert the
following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted[.]").

        When considering whether to dismiss an action for failure to state a claim, the court must
assess whether "a claim has been stated adequately" and then whether "it may be supported by [a]
showing [of] any set of facts consistent with the allegations in the complaint." Bell Atl.
Corp. v. Twombl1, 550 U.S. 544, 563 (2007). The plaintiff s factual allegations must be
substantial enough to raise the right to relief "above the speculative level;' Id. at 555. The coutt
must accept all factual allegations in the complaint as true and make all reasonable inferences in
favor of the plaintiff. 1d

        D.      The Government's September 25,,2015 Motion To Dismiss.

                1.      The Government's Argument.

        The Govemmenl argues that Plaintiff s July 7, 2015 Complaint should be dismissed,
because the court does not have subject-matter jurisdiction over Plaintiffs claims. Gov't Mot. at
3-6. Pursuant to 28 U.S.C. $ 1495, the Complaint fails to state a "claim for damages by any person
unjustly convicted of an offense against the United States and imprisoned," because Plaintiff was
convicied of a state crime as opposed to a federal crime. Gov't Mot. at 3. Moreover, Plaintiff
does not allege that his conviction has been reversed or put aside but instead concedes that the
California Court of Appeals affirmed his conviction and he remains in prison. Gov't Mot. at 5.

        The Govemment also argues that this court does not have jurisdiction to entertain the
plaintiffs constitutional challenges to his criminal conviction, because "[t]his Court lacks
jurisdiction to review the decisions or actions of another Court." Gov't Mot' at 5'

                2.      Plaintiff   s ResPonse.

         Plaintiff s Response to the Govemment's September 8, 2015 Motion To Dismiss recycles
arguments from the July 7, 2015 Complaint. Plaintiff continues to insist that this court has
                                                                    was unjustly punished &
.luiisdiction under to 28 U.S.C. $$ 1495, 2513(a), because "he
 imprisoned." Pl. Resp. at l.

                3.      The Court's Resolution.

       The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.
See Estelle v. Gambte,429 tJ.S. 97, 106 ( 1976) (holding that the "pro se document is to be
                                                                                            liberally
construed"). Br]d, pro se plaintiffs must still "comply with the applicable rules of procedural and
substantive law." lqalsh v. United States,3 Cl. Ct. 539, 541 (1983). The court cannot simply
excuse a comDlaint's failures. See Henke,60F.3dat799-
         The July 7,2015 Complaint fails to demonstrate how Plaintiff s unjust conviction and
imprisonment claim implicates the United States. Under the Tucker Act, the United States Court
of Federal Claims has jurisdiction to adjudicate "any claim for damages by any person unjustly
convicted ofan offense against the United States and imprisoned." 28 U.S.C. $ 1495' The July 7,
2015 Complaint, however, does not concem the limited circumstances of 28 U.S.C. S 1495,
because Plaintilf was not unjustly convicted ofan offense against the United States, rather he was
convicted of a state crime in a state court. Thus, this court does not have jurisdiction to adjudicate
this claim. See, e.g., Machulas v. United States, 15-5042,2015 WL 4174006, at
                                                                                     *2 (Fed. Cir. July
 13, 2015) (holding that the United States Court ofFederal Claims did not have jurisdiction over a
plaintiff s claim for unjust conviction and imprisonment, because the plaintiff was convicted ofa
state crime in Georgia Superior Court and not a federal crime in a federal court); see clso Robinson
v. United States, No. 99-5120, 2000 WL 158487, at * 1 (Fed. Cir. Feb 1 1, 2000) (affirming the
United States Court of Federal Claims' dismissal for lack ofjurisdiction where a plaintiff alleged
illegal and unconstitutional deprivation of personal liberty relating to a criminal conviction in an
Indiana state court, because the plaintiff was not unjustly convicted ofa crime against the United
States).

        Moreover, the Complaint fails to allege that the conviction and incarceration were unjust.
Although the United States Court of Federal Claims has jurisdiction to award compensation to
those who are unjustly convicted and imprisoned, see 28 U.S.C. $ 1495, section 2513(a) imposes
several additional limitations that any party suing under section 1495 must allege and prove:

           His conviction has been reversed or set aside on the ground that he is not guilty of
           the offense of which he was convicted, or on new trial or rehearing he was found
           not guilty of such offense, as appezus from the record or certificate of the court
           setting aside or reversing such conviction, or that he has been pardoned upon the
           stated ground of innocence and unjust conviction and

           He did not commit any of the acts charged or his acts' deeds, or omissions with
           such charge constituted no offense against the United States, or any State, Tenitory
           or the District of columbia, and he did not by misconduct or neglect cause or bring
           about his own prosecution

28 U.S.C. $ 2513(a).

        Therefore, ,'the court's jurisdiction to entertain a claim for money damages for unjust
conviction arises only after the challenged conviction has been reversed, on grounds ofinnocence,
by a court of compeient jurisdiction or by Presidential pardon." Lott v. United States,ll Cl. Ct.
 A3Z,AS:0957);ieealsoChevalierv.unitedStates,32gFed. App'x924,926(Fed.Cir.2009)
(holding that the United States Court of Federal Claims conectly found that it did not have
jurisdiJion over claims of unjust conviction arising under 28 U.S.C. $ 1495 where the plaintiff
iad not complied with 28 U.S.C. $ 2513(a), and admitted that his conviction had not been
reversed).

        The July 7, 2015 Complaint does not assert a finding of innocence, pardon, 9r certificate
of innocence to establish unjust conviction and imprisonment under 28 U.S.C. $ 2513. See Vicin
v. United States,468F.2d930,933         (t.
                                         Cl. 1972) (holding that the plaintiff could not prevail on a
claim for unjust conviction without'the recitals specified by the statute (innocence as certified by
the pardon or certificate ofthe appropriate court, etc.)").

       Finally, this court does not have jurisdiction        to adjudicate Plaintiffs Fourteenth
Amendment Due Process claim, because money damages are not available for alleged violations
of the Fourteenth Amendment. See LeBlqnc v. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995)
(explaining that the Due Process and Equal Protection clauses of the Fifth and Fourteenth
Amendments are not a suffrcient basis for jurisdiction, because they are not money-mandating).

       Because this court does not have jurisdiction to adjudicate PlaintifPs claims, it need not
address the statute of limitations issue raised in the Government's September 8, 2015 Motion To
Dismiss.

Iv.    CONCLUSION.

       For these reasons, the Govemment's September 25,2015 Motion To Dismiss is granted.
See RCFC 12(bX1), 12(bX6). Plaintiffs September 25,2015 Motion For Default Judgment is
denied as moot. The Clerk is directed to dismiss Plaintiffs July 7,2015 Complaint.

       IT IS SO ORDERED.
