 

In the United States Court of Federal Claims

No. 14-557C
(Filed: September 23, 2014)  
(NOT TO BE PUBLISHED)
SEP~§ 3 2014
**********************************
) U S COUFIT ?IS
I)ENNY-RAY HARDIN, ) FEEERAL CLA
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
)

#$***$*$*$*$*$*$*$***$#$*$*$*$$$*$

Denny-Ray Hardin, pro se, Pekin, Il1inois.

Eric E. Laufgraben, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,
Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

0P1N10N AND oRDER
LETToW, Judge.

Plaintiff, Denny-Ray Hardin, is currently serving a 120-month sentence in Federal prison.
See Def.’s Mot. to Dismiss ("Def.’s Mot.") at 1, ECF No. 4; see also Order Finding Def. Guilty,
Um'ted States v. Hardin, No. 10-OO131-01-CR-W-GAF (W.D. Mo. Sept. 14, 2011).1 l\/Ir. Hardin
alleges numerous constitutional and statutory violations attendant to his conviction and
subsequent incarceration. See Comp1. at 1-3. Pending before the court is the government’s
motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of

lln 2011, Mr. Hardin was found guilty of 21 counts of fraud in violation of 18 U.S.C.
§ 514 (creating fictitious obligations) and 18 U.S.C. §1341 (mail fraud & mail fraud affecting a
financial institution).

the Court of Federal Claims ("RCFC") and for failure to state a claim upon which relief can be
granted pursuant to RCFC l2(b)(6). See Def.’s Mot. at l.z

BACKGROUND

Mr. Hardin broadly avers that Attorney General Eric Holder, the Department of Justice,
the federal judiciary, and unidentified attorneys are acting as agents of the "‘Corporate’ United
States of America," in denying him various rights afforded by the United States Constitution.
Compl. at l. Mr. Hardin specifically claims that the federal officials and entities "transgressed
the [First] Amendment" and violated the Fourth Amendment’s prohibition against unreasonable
searches and seizures, the Fifth Amendment’s right to due process, the Sixth Amendment’s right
to a fair and speedy trial, and the Eighth Amendment’s prohibition against excessive bail and
cruel and unusual punishment. Compl. at 2-3; see also Pl.’s Response to Def.’s Motion to
Dismiss ("Pl.’s Opp’n") at 3-8, ECF No. 6. He also alleges violations of federal criminal statutes
including 18 U.S.C. §§ 241, 1203, l9l8, l95l, and 2384. Compl. at 2-4. Mr. Hardin contends
that Attorney General Holder leads this unconstitutional conduct by controlling the Department
of Justice. Compl. at 4. Finally, Mr. Hardin contends there is "total ‘[i]nsurrection"’ of the
J udicial Branch in violation of 10 U.S.C. § 333 (Interference with state and federal law), Compl.
at 3, and that members of the judiciary have engaged in a breach of contract by violating their
oath and obligation to administerjustice under 28 U.S.C. § 453. Pl.’s Opp’n at 9.3

In terms of relief, Mr. Hardin demands an "‘Order of Release’ from involuntary servitude
of [Attorney General] Holder," approximately 22.5 trillion dollars in damages in the form of
reparations "established for ‘war crimes’ by the ‘Geneva Convention[s],"’ and punitive damages
against the United States for its agents’ actions. Compl. at 7-8.4

zBy order entered August 22, 2014, the court granted Mr. Hardin’s application to proceed
in forma pauperz`s.

3Notably, this court has no jurisdiction to hear claims against individuals or officers of
the United States, including attorneys and judges. See Stephenson v. United States, 58 Fed. Cl.
186, l9O (2003). The United States is the "only proper defendant" that can be brought before
this court. Id. (emphasis in original) (citing United States v. Sherwood, 312 U.S. 584, 589
(1941)).

4Mr. Hardin previously filed a "Petition to Lawfully Challenge the Unlawful Detention of
‘Americans"’ in this court against Barack Obama, the United States of America, lnc., and several
federal organizations Compl., Hardin v. United States, No. l3-8l2C (Fed. Cl. Oct. l8, 2013), at
l. In the complaint, Mr. Hardin alleged that the federal government carried out several crimes
and was accountable for numerous constitutional violations involving his conviction and the
incarceration of all federal prisoners. See id. The court ruled that it lacked subject matter
jurisdiction to hear Mr. Hardin’s claims, citing 28 U.S.C. § l49l(a)(l), and granted the
government’s motion to dismiss without prejudice. Order Granting Def.’s Mot. to Dismiss,
Hardin v. United States, No. l3-8l2C (Fed. Cl. Feb. 20, 2014). Mr. Hardin appealed the
dismissal to the United States Court of Appeals for the Federal Circuit, Pl.’s Notice of Appeal,
Hardin v. United States, No. 13-8 l2C (Fed. Cl. Mar. 24, 2014), but upon failure to timely pay

2

STANDARDS FOR DECISION
A. Subject Matter Jurisdz`ctz`on

Mr. Hardin contends that the court has jurisdiction over his claims pursuant to the Tucker
Act, 28 U.S.C. § l49l. See Pl.’s Opp’n at 1. The Tucker Act confers jurisdiction on this court 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." 28 U.S.C. § 1491(a)(1). The Tucker Act serves as a waiver of sovereign
immunity, authorizing a claimant to sue the United States for monetary damages. United States
v. Mitchell, 463 U.S. 206, 212 (1983). The Tucker Act alone, however, does not provide a
substantive right to monetary relief against the United States. United States v. Testan, 424 U.S.
392, 398 (1976); see also Marlinez v. United States, 333 F.3d 1295, 1302-03 (Fed. Cir. 2003) (en
banc). "A substantive right must be found in some other source of law." Mz`tchell, 463 U.S. at
216. To satisfy the jurisdictional requirements of the Tucker Act, the plaintiff must establish an
independent right to monetary damages by pointing to a substantive source of law that mandates
payment from the United States for the injury suffered. Testan, 424 U.S. at 400; see also
Ferrez`ro v. United States, 501 F.3d 1349, 1351-52 (Fed. Cir. 2007) (quoting Fisher v. United
States, 402 F.3d l167, 1172 (Fed. Cir. 2005) (en banc in relevant part)).

Before proceeding to the merits, the "court must satisfy itself that it has jurisdiction to
hear and decide a case." Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004) (quoting
PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d l235, 1241 (Fed. Cir. 2002)) (internal quotation
marks omitted). When deciding a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction, the court will "normally consider the facts alleged in the complaint to be true
and correct." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988)
(citing Scheuer v. Rhocles, 416 U.S. 232, 236 (1974)). The plaintiff bears the burden of
"alleg[ing] in his pleading the facts essential to show [subject matter] jurisdiction" by a
preponderance of the evidence. McNutt v. General Motors Acceptance Corp. oflncl., 298 U.S.
178, 189 (1936); see also Reynola's, 846 F.2d at 748.

B. Failure to State a Claz'm

To survive a motion to dismiss for failure to state a claim, the plaintiff s complaint must
"contain sufficient factual `rnatter, accepted as true, to ‘state a claim to relief that is plausible on
its face."’ Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). Moreover, the
facts alleged must "‘plausibly suggest[] (not merely [be] consistent with)’ a showing of
entitlement to relief." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009), (quoting

docketing fees required under Federal Circuit Rule 52(a)(1), l\/Ir. Hardin’s notice of appeal was
dismissed, Order Dismissing Pl.’s Notice of Appeal, Harclin v. United States, No. 14-5066 (Fed.
Cir. May 7, 20l4).

Twombly, 550 U.S. at 557). Although the complaint "does not need detailed factual allegations,"
Twombly, 550 U.S. at 545, it must put forward more than "‘naked assertion[s] devoid of ‘further
factual enhancement,"’ Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557) (alteration in
original), or "the-defendant-uhlawfully-harmed-me-accusation[s]," ia’. (citing Twombly, 550 U.S.
at 555). ln making a determination whether the plaintiff has pled adequate facts such that the
court may infer that his entitlement to relief is plausible-not merely possible-the court must
"draw on its judicial experience and common sense," Iqbal, 556 U.S. at 679, and "must accept as
true the complaint’s undisputed factual allegations and should construe them in a light most
favorable to the plaintiff," Cambridge v. United States, 558 F.3d l33l, 1335 (Fed. Cir. 2009)
(citing Papasan v. Allain, 478 U.S. 265, 283 (1986); Gould, Inc. v. United States, 935 F.2d 1271,
1274 (Fed. Cir. 1991)).5

ANALYSIS
A. Subject Matter Jurisdz`ction

Mr. Hardin’s asserted violations of the First, Fourth, Fifth, Sixth, and Eighth
Amendments of the United States Constitution are jurisdictionally unavailing. "Although this
court may exercise jurisdiction over claims ‘founded . . . upon the Constitution,’ the scope of this
court’s jurisdiction over constitutional claims is limited to claims arising under provisions of the
Constitution that mandate the payment of money." Miller v. United States, 67 Fed. Cl. 195 , 199
(2005) (citing 28 U.S.C. § 1491). lt is well established that the First, Fourth, Fifth,6 Sixth, and
Eighth Amendments, by themselves, are not money-mandating. See United States v. Connolly,
716 F.2d 882, 887 (Fed. Cir. l983) ("[T]he [F]irst [A]mendment, standing alone, cannot be so
interpreted to command the payment of money.") (citing Featheringill v. United States, 217 Ct.
Cl. 24, 32-3 (1978)); LaChance v. United States, 15 Cl. Ct. 127, 130 (1988) ("[T]he [F]ourth
[A]mendment does not mandate the payment of money by the United States.") (citing Shaw v.
United States, 8 Cl. Ct. 796, 800 (1985)); Milas v. United Srates, 42 Fed. Cl. 704, 710 (1999)
("[T]he Fifth and Sixth Amendments are not money mandating."), ajj"a’, 217 F.3d 854 (Fed. Cir.
1999); Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The Court of Federal
Claims does not have jurisdiction over claims arising under the Eighth Amendment."). Because

SThe court holds pro se plaintiffs to "‘less stringent standards than formal pleadings
drafted by lawyers."’ Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curiam)). "This latitude, hoWever, does not relieve a pro se plaintiff
from meeting jurisdictional requirements." Bernard v. United States, 59 Fed. Cl. 497, 499
(2004), af’d, 98 Fed. Appx. 860 (Fed. Cir. 2004); see also Henke v. United States, 60 F.3d 795,
799 (Fed. Cir. 1995).

"’The court does possess jurisdiction to adjudicate Fifth Amendment takings claims
because the Takings Clause is money-mandating. See U.S. Const. amend. V (providing
compensation in the event that private property is taken for public use), HoWever, as the
government correctly noted, "Mr. Hardin’s complaint does not allege the physical or regulatory
taking of a property interest by the government." Def.’s Mot. at 5. Rather, he claims a denial of
due process under the Fifth Amendment, Pl.’s Opp’n at 3-8, which does not provide a sufficient
basis for jurisdiction, LaC//zance, 15 Cl. Ct. at 130.

4

the cited Amendments to the United States Constitution are not money-mandating, the court
lacks jurisdiction to adjudicate Mr. Hardin’s claims based upon those provisions.

Mr. Hardin’s statutory claims also are not properly before the court. Mr. Hardin alleges
that "[a]ll ‘agents’ have cooperated in the ‘[c]onspiracy’ to deny [him] his [c]onstitutional
[r]ights and have become ‘trespassers’ under the color of an ‘official right’ in clear ‘racketeering
activity’ which [Attorney General] Holder operates as his personal domain," Compl. at 7, thus
violating federal criminal statutes related to conspiracy and racketeering, see id. at 2-3. This
court, however, has no jurisdiction over criminal matters, including those Mr. Hardin seeks to
put at issue. joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994) ("The court has no
jurisdiction to adjudicate any claims whatsoever under the federal criminal code."), Mr. Hardin
also claims judicial misconduct in violation of 28 U.S.C. § 453 (Oaths of Justices and Judges)7

and that members of the judiciary have engaged in "total [i]nsurrection" in violation of l0 U.S.C.

§ 333 (lnterference with state and federal law). Compl. at 3.8 These statutes, however, do not
provide an independent right to monetary damages Cf Uzamere v. United States, No. l0-585C,
2010 WL 3528897, at *3 (Fed. Cl. Sept. 3, 2010) ("Claims for alleged judicial misconduct under
28 U.S.C. § 455 are not money-mandating and therefore cannot serve as a basis for jurisdiction
in this court."). Consequently, this court cannot exercise jurisdiction over Mr. Hardin’s statutory
claims.

Finally, the court has no power to address Mr. Hardin’s claim arising under the Geneva
Conventions. Mr. Hardin labels his imprisonment and the imprisonment of persons currently
confined by the Federal Bureau of Prisons as a "hostage" taking, amounting to a war crime by
Attorney General Holder under the Geneva Conventions. Compl. at 6. A statute bars the court’s
consideration of this claim. Pursuant to 28 U.S.C. § 1502, "the United States Court of Federal
Claims shall not have jurisdiction of any claim against the United States growing out of or
dependent upon any treaty entered into with foreign nations." The Geneva Conventions consist
of treaties and, as such, the court lacks jurisdiction to entertain Mr. Hardin’s claims involving
such treaties. See Leyva v. United States, No. 06-848C, 2007 WL 5l8l 148, at *3 (Fed. Cl. Nov.
28, 2007).

In sum, the court does not have jurisdiction over Mr. Hardin’s claims.

7Mr. Hardin maintains that a violation of 28 U.S.C. § 453 constitutes a breach of contract.

Pl.’s Opp’n at 9-l0. To assert a contract claim pursuant to the Tucker Act, a plaintiff must have
privity of contract with the government. Chancellor Mcmor v. United States, 331 F.3d 891, 899
(Fed. Cir. 2003). Without privity between the plaintiff and the government, the court has no
jurisdiction over a claim based on contract. See id.; see also Katz v. Cisneros, 16 F.3d l204,
l2l0 (Fed. Cir. 1994). Section 453 of Title 28 sets out the statutory oath to be taken by federal
justices and judges upon entering office and does not create privity of contract with the United
States.

gSection 333 of Title 10 (empowering the President to take necessary measures "to
suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy"
in situations that are not applicable to this case).

5

B. Failure to State a Claim

ln the alternative, the government argues that Mr. Hardin’s complaint should be
dismissed under RCFC l2(b)(6) for failure to state a claim upon which relief can be granted.
Def.’s Mot. at l. Mr. Hardin’s complaint fails to make a facially plausible showing of
wrongdoing by the United States. See Iqbal, 556 U.S. at 678. lt contains numerous assertions
against the entire federal criminal system that are wanting in detail and factual support.
Ostensibly, Mr. Hardin’s claims amount to a collateral challenge of his conviction and
incarceration. His "the-defendant-unlawfully-harmed-me-accusation[s]," Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555), are an insufficient basis for relief.

In sum, Mr. Hardin fails to state a claim upon which relief can be granted.
CONCLUSION
For the reasons stated, the govemment’s motion to dismiss is GRANTED, and
Mr. Hardin’s complaint is dismissed pursuant to RCFC l2(b)(l) for lack of subject matter

jurisdiction and, alternatively, pursuant to RCFC l2(b)(6) for failure to state a claim upon which
relief can be granted. The clerk shall enter judgment in accord with this disposition.

No costs.

lt is so ORDERED.

  

Cha: es }'. Lettow
Judge

