                                                                      ORIGIhIAI"
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                                                                                        No. l6-94
                                                                           Filed: September 30, 2016                          FILED
************                     {.   *******++****                   ++   ***********           *
                                                                                                                             sEP 3 0   2016


THEODORE WATKINS a/k/a                                                                                                   U.S. COURT OF
CHARLES HUNTER a/k/a                                                                                                    FEDEML CLAIMS
KHALEEL ABDULLAH,

             Plaintiff, pro se,                                                                  +^
                                                                                                      uollateral Estoppel;
                                                                                                 '    Res Judicata


THE LINITED STATES,

              Defendant.

***   +,1   * {.,t *   :}   **   :t   **   *( :}   ***   +   * * * * * * * * * * * * * * * * * * :}


Theodore Watkins, Highland Park, Michigan, pro se.

Daniel Herzfeld, United States Department of Justice, Civil Division, Washinglon, D.C.,
Counsel for the Govemment.

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

BRADEN,./zdge.


I.            RELEVANTFACTUALBACKGROUND.'

           April 29,1976, Theodore Watkins was convicted of assault with intent to murder in the
              On
Detroit Recorder's Court ("Michigan State Court").2 Watkins II Compl. at 2. On May 20,1976,
the Michigan State Court sentenced Mr. Watkins to probation for a term of five years. Wathins II
Compl. at 2. On September 29, 1980, Mr. Watkins pled guilty in the Michigan State Court to

              I The
             relevant facts were derived from the January 19,2016 Complaint                                                       (*I   atkins   II
Compl.") and attached exhibits ("P1. Ex. 1-3").
              2
          On October 1,1997,the Detroit Recorder's Court merged into the Third Judicial Circuit
of Michigan. See Mich. Comp. Laws $ 600.9931(1) ("The recorder's court of the city of Detroit
is abolished and merged with the third judicial circuit of the circuit court[,] effective October 1
1997.").




                                                                                                            ?EIe lqh0 8001, ??lr hl65
attempted malicious destruction of personal property. Again, he was sentenced to probation for a
term of two years. llratkins II Compl. at 2. On December 20, 1981, Mr. Watkins was arrested and
anaigned for violating probation and failure to report. llatkins II Compl. at 3. He stood silently
while the Michigan State Court entered a guilty plea on his behalf on December 22, 1981. Pl. Ex.


         On January 6, 1982, the Michigan State Court sentenced Mr. Watkins to a prison term of
 seven to fifteen years, for violating his first term of probation, and one to two years, for violating
his second term of probation. Ilatkins 11 Compl. at 3. This sentence was later "vacated on
jurisdictional grounds," but Mr. Watkins' guilty plea was not set aside. lVatkins II Compl. aI3.

         On April 27,2015, Mr. Watkins frled a Complaint in the United States Court of Federal
Claims, alleging deprivation of procedural protections guaranteed to sovereign nations, because
tlre Govemment did not follow appropriate procedures to "remove [his] immunity." Complaint,
Iilatkins v. United States, No. 1:15-cv-00419 (Fed. Cl., Apr. 27,2015), ECF No. 1("Ilatkins          I
Compl."). The Complaint also requested injunctive relief, as well as statutory and punitive
damages. See LVatkins v. United States,2015 WL 4481234, at *1 (Fed. Cl. July 22,2015)
("lltatkins  /').On July 22, 2015, the l(atkins 1 Complaint was dismissed, because the court had
no jurisdiction over the claims alleged. Id. at * 4-5.

II.     PROCEDURALHISTORY,

        On January 19,2016, Mr. Watkins ("Plaintiff') filed a second Complaint in the United
                                                                        l
States Court of Federal Claims, seeking a settlement and closure. atkins II Compl. at 4. The
January 19,2016 Complaint alleged that Plaintiff, as a member of the Newaubian Nation of Moors
of the Creek Nation, was deprived of procedural protections guaranteed to sovereign nations,
pursuant to 28 U.S.C. $ 16043 and 22 C.F.R. S 92.12.4 Watkins II Compl at34. The January 19,

        r Section 1604 of the Foreign Sovereign Immunities Act provides:

         Subject to existing intemational agreements to which the United States is a party at
        the time of enactrnent of this Act a foreign state shall be immune from the
        jurisdiction of the courts of the United States and ofthe States except as provided
         in sections 1605 to 1607 of this chaoter.

28 U.S.C. $ 1604.

        a
            Section 92.12 of the Code ofFederal Regulations provides:

        A notarizing officer must execute a written certificate attesting to the performance
        of a notarial act. This certificate may be inserted on or appended to the notarized
        document. . . . The certificate evidences the performance ofthe notarial act. Failure
        to execute this certificate renders the notarial act legally ineffective. Each notarial
        act should be evidenced by a separate certificate; two or more distinct notarial acts
        should not be attested to by one certificate.

22 C.F.R. $ 92.12 (intemal citation omitted).
2016 Complaint again alleged that the Govemment did not follow appropriate procedures to
"remove [his] immunity." Ilatkins II Compl. at3. The January 19, 201 6 Complaint further alleged
procedural violations regarding Plaintiff s December 22, 1981 guilty plea, but did not specify the
substantive basis for this allegation. Watkins IICompl.3.

        On January 19,2016, Plaintifffiled an Application To Proceed In Forma Pauperis that the
court granted on January 29,2016.

         On March 21,2016,the Govemment filed a Motion To Dismiss ("Gov't Mot.") for lack of
subject matter jurisdiction and failure to state a claim upon which relief can be granted, pursuant
to Rules 12(bXl) ard 12(b)(6) of the United States Court of Federal Claims ("RCFC"). Plaintiff
failed to respond.

        On May 12, 2016, the court issued an Order, requiring Plaintiff to show cause why this
case should not be dismissed for failure to prosecute. The court required Plaintiffto file a response
no later than June 12, 2016. Plaintiff did not file a Response.

III.     DISCUSSION.

         A.     Jurisdiction.

         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 liquidated or unliquidated damages in
cases not sounding in tort." 28U.S.C. $ 1a91(a)(1). 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,424l).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
 agency regulation that provides a substantive right to money damages. See Todd v. tlnited States,
 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
 identify 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, ll72 (Fed. Cir. 2005) (en banc) (,,The
 Tucker Act . . . does not create a substantive cause of action; ... a plaintiff must identiff 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[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the 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.

        The United States Court of Federal Claims reviews pro se plaintiffs' pleadings under a
standard less stringent than the standard applied to litigants represented by counsel. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (holding that pro se complaints, "however inartfully pleaded,"
are held to "less stringent standards than formal pleadings drafted by lawyers"). Therefore, the
court has examined the record "to see if [this pro se] plaintiff has a cause of action somewhere
displayed." Ruderer v. United States,412F.2d 1285,1292 (C1. Cl. 1969).

        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 [ofl any set of facts consistent with the allegations in the complaint." Bell Atl.
Corp. v. Twombt, 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. And, the
court must accept all factual allegations in the complaint as true and make all reasonable inferences
in favor ofrhe plaintiff. See Ashcroft v. Iqbal,556 U.S. 662,678J9 (2009).

       C.        The Government's July 28,2016 Motion To Dismiss.

                 l.    The Government's Argument,

       The Govemment argues that the January 19,2016 Complaint should be dismissed under
the doctrines of res judicata and collateral estoppel, because the court previously dismissed
identical claims and issues in llatkins I. Gov't Mot. at 1.

                 2,    The Plaintiff    s Response,

       Plaintiff did not file   a Response.

                 3,    The Court's Resolution,

       The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.
See Estelle v. Gamble,429 U.5.97,106 (197 6) (holding that apro se document "is to be liberally
construed"). Nevertheless, pro se plaintiffs must "comply with the applicable rules of procedural
and substantive law," Iilalsh v. United States,3 Cl. Ct. 539,541 (1983).

        The ll/atkins 1 Complaint alleged that Plaintiff, as a member of the Newaubian Nation of
Moors of the Creek Nation, was deprived of procedural protections guaranteed to sovereign
nations, pursuant to 28 U.S.C. $ 1604 and 22 C.F.R. 992.12. See lVatkins 1,2015 WL 4481234
at * 1. The llatkins I Complaint also alleged that the three criminal cases filed against him were
improper under 28 U.S.C. $$ 1330-3 l, and the Govemment did not follow appropriate procedures
to "remove [his] immunity." Id. at *1, *4. The llatkins I Complaint, however, did not specify
which anests and convictions were procedurally defective. Id. at *4. Therefore, the court
determined that it did not have subject matterjurisdiction over any claims alleged against any party
other than the United States. 1d The court also determined that Plaintiff failed to allege a claim
against the United States for unjust conviction. Id. Finally, the court determined that Sections
1330-31 were not money-mandating. 1d. Accordingly, the court granted the Govemment's June
12,2015 Motion to Dismiss under RCFC l2(b)(l)and 12(bX6). Id.at*5. Plaintiffdid not appeal.
                      I
        Tlte llatkins and lhatkins 11 Complaints contain the same allegations word-for-word,
                                   l
except for two differences. The atkins l Complaint references the Court of Federal Claims in
the caption, and, the l atkins // Complaint references the "6th Curcuit [sic] Court of Appeals."
Compare ll'atkins I Compl. at I with Watkins 11 Compl. at 1. The Watkins I Complaint also
requests compensation for wrongful incarceration and that the court vacate Plaintiffs criminal
plea; the ll'atkins II Complaint states "l am ready for a settlement and closure." Compare llatkins
l Compl. at 4 with ll'atkins II Compl. at 4.
         Claim preclusion, or res judicala, as a matter of law, prohibits relitigation of a claim
previously decided on the merits. See Faust v. United States, 101 F.3d 675,677 (Fed. Cir. 1996)
 (citing Allen v. McCurry,449 U.S. 90, 94 (1980)). The party asserting claim preclusion must
establish that: "(l) the parties are identical or in privity; (2) the first suit proceeded to a final
judgment on the merits; and (3) the second claim is based on the same set offfansactional facts as
the first." Ammex, Inc. v. United States,334 F.3d 1052, 1055 (Fed. Cir. 2003).

          If a case is dismissed for lack ofjurisdiction, however, that decision does not constitute a
 final judgment on the merits and does not satisfu the requirements of claim pre clusion. See Media
 Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1369-70 (Fed. Cir. 2003) (holding that
 claim preclusion does not apply to dismissals based on lack of standing: because "standing is
jurisdictional, lack of standing precludes a ruling on the merits."); see also Schafer v. Dep't of
Interior, 88 F.3d 981 , 990 (Fed. Cir. 1996) ("This is a decision on the merits which, unlike
 dismissal for want ofjurisdiction, has a res judicata effect."). Because Watkins I was dismissed,
 in part, for lack ofjurisdiction, res judicata is not applicable in this case.

        Issue preclusion, or collateral estoppel, "bars litigation ofan issue ifan identical issue was
actually litigated and necessarily decided in a prior case where the interests of the party to be
precluded were fully represented." Simmons v. Small Business Admin.,475 F.3d 1372, 1374
(Fed. Cir. 2007); Foster v. Hallco Mfg. Co., lnc.,947 F.2d,469,480 (Fed. Cir. 1991). The United
States Court ofAppeals for the Federal Circuit has held that, issue preclusion is applicable if:

        (1) an issue is identical to one decided in the first action; (2) the issue was actually
        litigated in the first action; (3) the resolution of the issue was essential to a final
       judgment in the first action; and (4) the party defending against issue preclusion had a
        full and fair opportunity to litigate the issue in the first action.
Shell Petroleum, Inc. v. United States, 319 F.3d 1334, 1338 (Fed. Cir. 2003).

         Issue preclusion generally bars relitigation of jurisdictional determinations. ,See
 Underwriters Nat'l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass'n,
 455 U.S. 691,706 (1981); see also Ins. Corp. of lreland, Ltd. v. Compagnie des Battxites de
 Guinee,456 U.S. 694, 702 n.9 (1982) ("lt has long been the rule that principles of [finality] apply
to jurisdictional determinations-both subject matter and personal."). But, dismissal for lack of
jurisdiction does not have preclusive effect when, after the initial dismissal, the plaintiffcures the
jurisdictional deficiency. See New Jersey Institute ofTech. v. Medjet, Inc.,47 Fed. App'x.921,
 925 (Fed. Cir. 2002) (citing RCFC 4l (b) in holding that "a dismissal for lack ofjurisdiction does
not preclude a second action based on the same cause ofaction that includes claims that overcome
the initial defect ofjurisdiction"). When the jurisdictional deficiency, however, is not corrected,
"[a] party that has had an opportunity to litigate the question of subject-matterjurisdiction may not
. . . reopen that question in a collateral attack upon adverse   judgment." Ins. Corp. of Ireland, Ltd.,
456 U.S. at702 n.9.

        The claims in the lYatkins II Complaint are alleged against the State of Michigan, the Third
Judicial Circuit of Michigan, and/or private individuals or members of the state judiciary fall
outside the subject matter jurisdiction ofthe court. See United States v. Sherwood, 312 U.S. 584,
588 (1941) ("[The United States Court of Federal Claims] is without jurisdiction of any suit
brought against private parties."); see also Fullard v. United States, 78 Fed. Cl. 294,301 (2007)
("[T]he United States Court of Federal Claims does not have jurisdiction to [adjudicate] claims
against states or state officials."). In any event, the court previously determined that the United
States Court of Federal Claims does not have jurisdiction to adjudicate the substantive claims
alleged in llratkins L See Llratkins 1,2015 WL 4481234, atx4-5.

IV.     CONCLUSION,

       For these reasons, the Govemment's March 21, 2016 Motion To Dismiss is granted,
pursuant to RCFC 12(b)(1)5 and RCFC 12(bXO.6 The Clerk is directed to dismiss the January 19,
2016 Complaint.

        IT IS SO ORDERED,


                                                        Judge




        5
         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 [RCFC] 12(bX1) motion[.]"
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(b)(1) ("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: (l) lack 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 plaintiffs favor;' Henke v. United States,60 F.3d 795, 797 (Fed. Cir. 1995)

        6 Issue preclusion is an affirmative defense. Caldera v. Northrop Worldwide Aircraft
Servs., 192 F.3d 962,970 (Fed. Cir. 1999). A complaint may be dismissed on a RCFC 12(bX6)
motion "when its allegations indicate the existence ofan affirmative defense that will bar the award
of any remedy." See 58 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRAcrlcE AND
PRocEDURE $ 1357 at 708 (2008 ed.).
