      In the United States Court of Federal Claims
                                   No. 13-023C
                              (Filed July 31, 2013)
                            NOT FOR PUBLICATION

************************
                        *
                        *
MARY ELAINE PERKINS,    *
                        *
             Plaintiff, *
         v.             *
                        *
THE UNITED STATES,      *
                        *
             Defendant. *
                        *
************************

                   MEMORANDUM OPINION AND ORDER

       This case is before the Court on defendant’s motion, under Rule 12(b)(1) of
the Rules of the United States Court of Federal Claims (“RCFC”), to dismiss for lack
of subject-matter jurisdiction. For the reasons discussed below, the motion is
GRANTED.

                                 I. BACKGROUND

       Plaintiff Mary Elaine Perkins, currently incarcerated at a federal prison in
Adelanto, California, seeks relief from restitution and court fees which are being
withheld by the Department of Justice at the rate of $25 per month. Am. Compl. ¶¶
5, 7. Prior to the filing of the amended complaint $275 had already been withheld,
and the total amount to be recovered is $17,128,726.43. Am. Compl. ¶ 5. The
money is being withheld pursuant to 18 U.S.C. section 3663A, which authorizes
restitution payments to victims of a defendant who has been criminally convicted of
a broad range of crimes, and 18 U.S.C. section 3013(a)(2)(A), which allows a special
assessment of $100 on persons who have been convicted of a felony. See Am. Compl.
¶ 2.

      The theory underlying plaintiff’s claim is that Public Law 80-772 ---
commonly understood to have enacted Title 18 of the United States Code, which
concerns federal crimes and criminal procedure --- was never properly passed, and
that as a consequence, 18 U.S.C. section 3231 (which grants the district courts of
the United States their jurisdiction over offenses against the laws of the United
States) was never legally enacted. Am. Compl. ¶¶3-5; see also Ex. 1 to Compl.
Passage was improper, according to Ms. Perkins, because of the lack of a quorum in
the lower chamber of the 80th Congress. This theory, among other things, is
detailed in Exhibit One to plaintiff’s initial complaint, entitled “History of Public
Law 80-772.”1 Since only the lack of a quorum is identified in the complaint as the
basis for plaintiff’s claim, see Am. Compl. ¶ 3, the Court will disregard any other
purported irregularities in the enactment of Public Law 80-772 that are described
in this exhibit.2 According to plaintiff, the House of Representatives’ passage of
H.R. 3190 on May 12, 1947, occurred without the constitutionally required quorum,
and is thus void. Ex. 1 at 3. As a consequence, according to this theory, the
subsequent agreement of the House to amendments made to the bill by the Senate
had no effect, as, while the House may have “agreed” to the amendments, the bill
was never actually passed in the first place. Id. at 4. This is said to violate federal
constitutional provisions under Article I, Section 5, Clause 1, which requires a
majority of each legislative chamber as a quorum to do business, and Article I,
Section 7, Clause 2, which requires that each bill pass both chambers of the
legislature and be signed by the President before becoming law. Id. at 5-11.

      Plaintiff offers various supporting exhibits in an effort to substantiate this
claim. Exhibit Two to the Complaint is supposedly a letter from the Clerk of the


1 This exhibit is not attributed to any particular author, and contains some theories
and claims that are not raised by the plaintiff in her complaint. For instance,
Exhibit One discusses a theory that the bill was invalidly signed by officers of the
two chambers of Congress during an adjournment. See Ex. 1 at 3-11; Am. Compl. ¶
3. Exhibit One also contains an entire section on the unlawfulness of maintaining
an individual in custody in light of the purported non-enactment of Public Law 80-
772, although the scope of the relief plaintiff seeks is limited to the money she
alleges was improperly withheld. See Ex. 1 at 11-13; Am. Compl. ¶ 7. Plaintiff’s
exhibits appear to be a package of documents that have frequently been used by
inmates pursuing similar theories in various federal courts. See Cardenas-Celestino
v. United States, 552 F. Supp. 2d 962, 966 (W.D. Mo. 2008) (describing arguments
similar to the plaintiff’s in this case as part of a “new rash of frivolous claims raised
by prisoners across the country, many of whom have copied the arguments directly
from legal websites which propound the argument . . . developed by a Texas firm,
International Legal Services.”).

2 The main additional theory in the exhibit seems to be that once Congress had
adjourned as of June 20, 1948, it ceased to legally exist, but the Speaker of the
House and President pro tempore of the Senate nonetheless signed the enrolled bill
on June 22 and 23, 1948 --- after which the bill was signed by the President on June
25, 1948. Ex. 1 at 4-5.


                                           -2-
House of Representatives, addressed to a third party and dated June 28, 2000,
which indicates that Title 18 was not voted on by the House in June of 1948.3
Exhibit Three to the Complaint is purportedly a letter from a subsequent Clerk of
the House of Representatives, dated September 11, 2006 and addressed to no one in
particular, indicating that: 1) the Clerk could not find an entry in the House
Journal for a vote on H.R. 3190 on May 12, 1947; 2) no action was taken on the bill
by the Senate prior to the “sine die adjournment” on December 19, 1947; 3) the
Congressional Record indicates that an amendment to the bill passed by a thirty-
eight to six vote on May 12, 1947; and 4) the House Rules require a listing of
members present but abstaining when a bill is passed by less than a majority of a
quorum. Exhibit Four to the Complaint is allegedly a March 9, 2009 letter from the
Secretary of the Senate, addressed to yet another third party, indicating that no
action was taken on H.R. 3190 by that body prior to a “December 19, 1947 sine die
adjournment.” Exhibit Five to the Complaint appears to be an internal memo from
the Director of the Federal Bureau of Prisons, sent July 27, 2009, which indicates
that --- after finding that there was no record of a quorum being present during the
May 12, 1947 vote on H.R. 3190, and that such a quorum would have been
necessary to pass the bill --- the Director concluded that the 1909 version of the
Federal Criminal Code had never been repealed, and that the true authority of the
Bureau to hold inmates is derived from the predecessor to Public Law 80-772.
Exhibit Six to the Complaint is supposedly an August 24, 2010 letter from the Office
of the Clerk of the House of Representatives, lacking a signature and addressed to
no one in particular, indicating that there is no record of the names of the 44
members who responded to the May 12, 1947 voice vote on H.R. 3190.4

       The government has filed a motion to dismiss the amended complaint for lack
of subject-matter jurisdiction. Def.’s Mot. to Dismiss (“Def.’s Mot.”) In that motion
it advances several arguments. The government argues first that plaintiff has
failed to make out a claim under a money-mandating source, as: 1) plaintiff relies


3 The Court notes that plaintiff cannot credibly vouch for the authenticity of any of
these exhibits to her initial complaint.

4 In plaintiff’s amended complaint, she raises her theory that due to a failure by the
Justice Department to respond in a timely fashion to a document styled as a
“Request for Answer to Certified Question of Law,” the Justice Department and the
Attorney General “have accepted as true the Stipulated Answers” provided by
defendant’s “Affidavit of Notice of Default for Failure to Respond.” Am. Compl. ¶ 6;
Ex. 7 to Am. Complaint. The “Affidavit of Notice of Default for Failure to Respond”
is attached to the Amended Complaint as Exhibit Seven. Plaintiff does not explain
the basis for her belief that a private citizen can send a “Certified Question of Law”
to the Department of Justice, nor does she explain why a failure to respond to such
a communication would operate to decide any issues of relevance to this case. The
Court will therefore not discuss the point further.
                                         -3-
on provisions of the criminal code for her claim, and the Court is without
jurisdiction to entertain such claims, id. at 3-4 (citing Joshua v. United States, 17
F.3d 378, 379 (Fed. Cir. 1994)); 2) to the extent she might be raising a constitutional
claim under the Fourth, Fifth, and Fourteenth Amendments, these provisions do
not require the payment of money, Def.’s Mot. at 4; and 3) to the extent plaintiff is
alleging a violation of her constitutional rights by the Attorney General in his
individual capacity, the Court lacks jurisdiction, as its jurisdiction is limited to suits
against the United States. Id. (citing Treece v. United States, 96 Fed. Cl. 226, 231
(2010)). The government also argues that various courts have considered the
substance of plaintiff’s claim --- that Public Law 80-772 was not properly passed ---
and affirmed the law’s validity, thus rendering plaintiff’s claim frivolous. Id. (citing
United States v. Penwell, 455 Fed. App’x 181, 183-84 (3rd Cir. 2011)).5

       Plaintiff filed a response to defendant’s motion to dismiss. See Pl.’s Resp. to
Def.’s Mot. at 1-3. She asks the the Court to take judicial notice of the Constitution,
the Congressional Record, the proceedings and journals of Congress, and the
various dates associated with the passage of Public Law 80-772, and reiterates her
theory that the law was not properly enacted due to the lack of a quorum. Id. at 1-
2. Plaintiff argues that “because her Constitutional rights were violated she has
had her money confiscated without due process.” Id. at 3.

                                    II. DISCUSSION

       Under RCFC 12(b)(1), a complaint must be dismissed when it is shown that
the Court lacks jurisdiction over the complaint's subject matter. When considering
a motion to dismiss for lack of subject matter jurisdiction, the Court will normally
accept as true all factual allegations made by the pleader and draw all reasonable
inferences in a light most favorable to that party. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002)
(requiring that on a motion to dismiss for lack of subject matter jurisdiction the
Court views “the alleged facts in the complaint as true, and if the facts reveal any
reasonable basis upon which the non-movant may prevail, dismissal is
inappropriate”). While pro se plaintiffs’ filings are to be liberally construed, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), this lenity cannot insulate from
dismissal a case that falls outside our jurisdiction. See, e.g., Henke v. United States,


5  The government also notes that, if a reference to “Tort” in plaintiff’s Exhibit
Seven were read as an attempt to state a claim, our court lacks jurisdiction over
such claims. Def.’s Mot. at 5 (citing, inter alia, 28 U.S.C. § 1491(a)(1); Brown v.
United States, 105 F.3d 621, 623 (Fed. Cir. 1997)). And the government contends
that we lack jurisdiction to issue the injunctive relief requested by plaintiff --- as
our remedies are generally limited to affording monetary, not injunctive, relief, and
none of the limited set of applicable circumstances in which injunctive relief would
be proper are applicable. See Def.’s Mot. at 5-6.
                                           -4-
60 F.3d 795, 799 (Fed. Cir. 1995). Because the Tucker Act, 28 U.S.C. § 1491, does
not create any substantive rights, a plaintiff must identify a separate source of law
that creates a right to money damages for her claim to be within our jurisdiction.
Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting
Fisher v United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). The test for
determining whether a statute or regulation can support jurisdiction in our court is
whether it can be fairly interpreted as mandating compensation. See, e.g., United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472–73 (2003); United States
v. Mitchell, 463 U.S. 206, 216–17 (1983); Fisher, 402 F.3d at 1173–74; Contreras v.
United States, 64 Fed. Cl. 583, 588–92 (2005). The claim of a money-mandating
source of law must be “a non-frivolous allegation.” Twp. of Saddle Brook v. United
States, 104 Fed. Cl. 101, 110 (2012) (citing Fisher, 402 F.3d at 1172).

       Several of the government’s arguments seem to be errant or misguided. A
passage from Joshua v. United States is cited, which is merely a block quote from
the opinion below, see Joshua, 17 F.3d at 379, and which concerns allegations of
violations of provisions from Title 18. Plaintiff is not alleging that Title 18 contains
money-mandating provisions, but rather that money has been exacted from her
under color of Title 18 and in violation of the Constitution. Nor is the government
correct in suggesting that (other than under the Takings Clause, one presumes) the
Fifth Amendment cannot be a basis for our jurisdiction. It is well-established that
our court has jurisdiction over suits seeking to recover “money improperly exacted
or retained,” United States v. Testan, 424 U.S. 392, 401 (1976), without the need for
any money-mandating provision. These illegal exactions may be based on
allegations that the money exacted exceeds that authorized by statute, such as in
tax refund claims, see Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605
(1967), or that the exaction violates a Constitutional provision --- including the Due
Process Clause of the Fifth Amendment. See Casa de Cambio Comdiv. S.A. de C.V.
v. United States, 291 F.3d 1356, 1363 (Fed. Cir. 2002); Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1572-73 (Fed. Cir. 1996).

       Indeed, the predecessor to our court and to the Federal Circuit had held, in
Mallow v. United States, that the Due Process Clause was the basis for jurisdiction
over a claim for the refund of fines imposed and collected through an
unconstitutional court-martial proceeding. Mallow v. United States, 161 Ct. Cl.
446, 449-50, 454 (1963). But unlike the situation presented in Mallow, where the
Supreme Court in a series of unrelated cases had already found that the challenged
practice violated the constitutional rights of civilians, id. at 449-50, here the
plaintiff asks our court to determine that her criminal conviction was
unconstitutional. The Court concludes that such a request is beyond the subject-
matter entrusted to our jurisdiction.

      This Court lacks jurisdiction to consider claims which amount to collateral
attacks on criminal convictions. See Carter v. United States, 228 Ct. Cl. 898, 900

                                           -5-
(1981) (rejecting claim, under various constitutional provisions, for money damages
and correction of criminal records, and holding that “[i]f plaintiff had valid
constitutional defenses to his convictions on criminal charges, he should have
asserted them on appeal in the proper court. This is not such a court and he cannot
here be heard to make a collateral attack on his convictions under the guise of a
claim for money damages.”); Black v. United States, 84 Fed. Cl. 439, 450-52 (2008)
(rejecting Fifth Amendment takings claim by plaintiff as collateral attack upon civil
and criminal actions in previous courts); Allamby v. United States, No. 09-868-C,
2010 WL 307883, at *2 n.2 (Fed. Cl. Jan. 21, 2010) (rejecting claim for damages
pursuant to purported unjust conviction for tax evasion to the extent it was a
collateral attack on prior criminal conviction); see also Kania v. United States, 227
Ct. Cl. 458, 465 (1981) (noting that “the role of the judiciary in the high function of
enforcing and policing the criminal law is assigned to the courts of general
jurisdiction and not to this court.”). While the Court of Federal Claims does have
jurisdiction to award compensation to the unjustly convicted and imprisoned under
28 U.S.C. sections 1495 and 2513, “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 of innocence, by a court of competent jurisdiction or by
Presidential pardon.” Lott v. United States, 11 Cl. Ct. 852, 853 (1987); accord
Ekberg v. United States, 110 Ct. Cl. 267, 270 (1948); Carter v. United States, 228 Ct.
Cl. at 899. Plaintiff makes no claim regarding any determination of her innocence,
and in fact remains in federal custody. Thus, the Court lacks jurisdiction over her
claim.6

       Moreover, plaintiff’s claim appears completely frivolous. Both the specific
theory considered here and related spurious challenges to Title 18’s enactment have
been considered and rejected by a number of courts. See, e.g, United States v.
Collins, 510 F.3d 697, 698 (7th Cir. 2007) (describing challenge to constitutionality
of Title 18 as “unbelievably frivolous”); United States v. Levy, 849 F. Supp. 2d 1353,
1356-1357 (S.D. Fla. 2012) (rejecting a Quorum Clause challenge to Title 18);
Cardenas-Celestino, 552 F. Supp. 2d at 966-967 (collecting citations rejecting
various constitutional challenges to Title 18). As one district court explained, in
rejecting this same Quorum Clause argument, the allegedly insufficient thirty-eight
to six vote was on an amendment to H.R. 3190, not the bill itself. Levy, 849 F. Supp.
2d at 1356. That court took notice of the official Journal of the House of
Representatives, which “explicitly states that 297 Members were present on May
12, 1947,” and confirms that the bill passed that day. See id. at 1356-1357, 1374-76;


6 The Court notes that the so-called enrolled bill rule may also be a bar to the
consideration of this case. This rule prevents a court from inquiring into whether
an enrolled bill, attested as having been passed by “the two houses, through their
presiding officers,” was in fact passed. Marshall Field & Co. v. Clark, 143 U.S. 649,
672 (1892).


                                          -6-
see also H. JOURNAL, 80th Cong., 1st Sess. 341, 343 (1947); 93 CONG. REC. 5049
(1947). Thus, if the Court were to follow plaintiff’s request and take notice of the
House Journal, it would have to conclude that a quorum of House members was
present on May 12, 1947 and passed the bill in question. Plaintiff’s claim, thus,
amounts to a non sequitur --- the argument that the fact that less than a quorum of
the House participated in a vote on an amendment to a bill means that less than a
quorum was present when the bill was approved. This is, in a word, frivolous.

                                III.   CONCLUSION

       For the reasons explained above, the Court concludes that it lacks
jurisdiction over the subject-matter of this complaint Accordingly, defendant’s
motion to dismiss is GRANTED, and the Clerk shall close the case.7

IT IS SO ORDERED.

                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




7 Despite the frivolity of this case, the government did not file an opposition to
plaintiff’s application to proceed in forma pauperis, and the Court as a consequence
hereby GRANTS the application.
                                         -7-
