                         OREGENAL
         lJntlst @nftr! $rtstts {.nrt of frlrrul [,lsimg
                                         Pro Se
                                      No. l5-389C                                   FILED
                               (Filed: September 3, 2015)
                                                                                  sEP'- 3   20t5
                                            )                                     U,S. COURT OF
 CHRISTOPHERJ.EMERSON,                      )                                   FEDEMLCI.AIMS
                                            )
                        Plaintiff,
                           )                      Pro Se Plaintiff; Motion to Dismiss for
                           )                      Lack of Subject Matter Jurisdiction;
     v.                    )                      RCFC 12(b)(1); Unjust Conviction
                           )                      and Imprisonment; 28 U.S.C. $ 1495;
 THEUNITEDSTATESOFAMERICA, )                      28U.S.C.$2513.
                           ',
              Defendant. )
                                            )
                                            )
                                            )

         Christopher J. Emerson, Tennessee Colony, TX, plaintiffplq se.

         Daniel Kenneth Greene,Tial Attomey, with whom were Reginald T.
         Blades, Jr., Assistant Director, Robert E. Kirschman, Jr., Director,
         Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
         Commercial Litigation Branch, Civil Division, United States Department
         of Justice, Washington, D.C., for defendant.


                                OPINION AND ORDER

KAPLAN, Judge.

        This case is before the Court on the govemment's motion to dismiss for lack of
subject matter jurisdiction and plaintiffs motions for judgment on the pleadings and for
summary judgment. For the reasons set forth below, the govemment's motion to dismiss
is GRANTED, and plaintiff s motions are DENIED as moot.r

                                    BACKGROT]ND

      Plaintiff Christopher J. Emerson is currently incarcerated in the Mark W. Michael
Unit,   a Texas Departmentof Criminal Justice prison iocated in Tennessee Colony, Texas.
Compl. at 2; Def.'s Mot. to Dismiss at 1. Mr. Emerson was convicted of an October

' Mr. Emerson has filed a motion to proceed in forma pauperis. The Court GRANTS
that motion for purposes ofdeciding the pending motion to dismiss.
1985 aggravated sexual assault in Harris County, Texas and sentenced to thirty-five years
confinement in the Texas Department of Corrections. See Emerson v. Thaler, 544 F.
App'x 325, 326 (5th Cir.2013); Emerson v. State, 756 S.W.2d 364,365 (Tex. App.
1988); see also Compl. Ex. I at 1. He was separately convicted of a November 1985
sexual assault of the same victim, but the Texas Court of Criminal Appeals later
overtumed the second conviction because ofthe prosecution's discriminatory use of
peremptory challenges. Emerson v. State,851 S.W.2d269,274-75 (Tex. Crim. App.
1993). It appears that he was never retried for this second offense.

        Mr. Emerson claims that he was unjustly convicted and impdsoned and that he is
actually innocent of the charges on which he was convicted. Compl. at2. In addition, he
rurmes as defendants sixteen federal district and appellate judges, alleging that they
violated his constitutional rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth,
Ninth, Tenth, Thirteenth, and Fourteenth Amendments. Id. At 2-3. Also citing various
criminal statutes, he contends that they "are responsible for the perpetuation of . . . [his]
unjust conviction and imprisonment" and that they have "conspired to actively injure,
oppress, threaten and intimidate" him for exercising his constitutional rights. Id. at 1,7 .
As relieffor these alleged wrongs, Mr. Emerson seeks (1) unspecified damages for unjust
conviction and imprisonment under 28 U.S.C. g 1495, id. at 1; (2) habeas corpus relief
under 28 U.S.C. $ 2254, id. at 1, 4-8; and (3) "declaratory relief' and "[s]uch other
equitable relief [that the Court may] deem[] as just, equitable[,] and fair," id. at 1, 9.

         In its motion to dismiss, the govemment argues that (1) Mr. Emerson "has failed
to allege, and cannot demonstrate, any of the jurisdictional prerequisites for" a claim of
unjust conviction and imprisonment pursuant to 28 U.S.C. $$ 1495 and 2513; (2) the
 Court ofFederal Claims does not have jurisdiction to grant habeas corpus relief or to
review other federal court judgments denying such relief; (3) the Court of Federal Claims
 does not have jurisdiction to rule on Mr. Emerson's allegations of criminal violations or
his constitutional tort claims; and (4) Mr. Emerson's claim for equitable relief is not
 "incident ofor collateral to" a claim for monetary relief, as required for this Court to have
jurisdiction under the Tucker Act. Def.'s Mot. to Dismiss 4, 7-8. 10. For the reasons set
 forth below, the Court agrees with all four of the govemment's arguments and therefore
dismisses Mr. Emerson's complaint.

                                       DISCUSSION

    I.     Standards for Subject Matter Jurisdiction

       In deciding a motion to dismiss for lack of subject matter jurisdiction, the court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor of the plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159, 1163
(Fed. Cir.2011). The court may "inquire into jurisdictional facts" to determine whether
it has jurisdiction. Rocovich v. United States,933F.2d99l,993 (Fed. Cir. 1991). Itis
well established that complaints that are filed by pp se plaintiffs, as this one is, are held
to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,
404 U.S. 519,520 (1972). Nonetheless, even plq qg plaintiffs must persuade the Court
that jurisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl.
497 ,499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir. 2004).

         The Court ofFederal Claims has jurisdiction under the Tucker Act "to render
judgment upon any claim against the United States founded either upon the Constitution,
or any Act ofCongress or any regulation ofan 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. $ 1a91(a)(1) (2012). The Tucker Act also gives
this court limited jurisdiction to grant equitable and declaratory relief, but only when such
relief is "an incident of and collateral to" a money judgment. Id. g 1a91(a)(2); Bobula v.
U.S. Dep't ofJustice, 970 F.3d 854, 859 (Fed. Cir. 1992).

         The Tucker Act waives the sovereign immunity of the United States to allow a
suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does
not confer any substantive rights on a plaintiff, United States v. Testan, 424 U.S. 392,
398 (197 6). Therefore, a plaintiff seeking to invoke the court's Tucker Act jurisdiction
must identif' an independent source of a substantive right to money damages from the
United States arising out ofa contract, statute, regulation, or constitutional provision.
Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir.
2008).

        In addition to the Tucker Act, 28 U.S.C. g 1495 gives the Court of Federal Claims
'Jurisdiction to render judgment upon any claim for damages by any person unjustly
convicted of an offense against the United States and imprisoned." Section25l3 of the
same title sets forth the "requisite facts" that "[a]ny person suing under section 1495 . . .
must allege and prove."2 28U.S.C. $ 2513. It further provides that proof of such facts
"shall be by a certificate of the court or pardon wherein such facts are alleged to appear,
and other evidence thereof shall not be received." Id. € 25136).




2
    These facts include the following:

         (1) 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 appears from the
         record or certificate ofthe court setting aside or reversing such conviction,
          or that he has been pardoned upon the stated ground ofinnocence and unjust
          conviction and

         (2) He did not commit any of the acts charged or his acts, deeds, or
         omissions in connection with such charge constituted no offense against the
         United States, or any State, Territory or the District of Columbia, and he did
         not by misconduct or neglect cause or bring about his own prosecution.

28 U.S.C. g 2s13(a).
    I       Application of Standards to Mr. Emerson's Claims

            A.   The Court Lacks Jurisdiction over Mr. Emerson's Unjust Conviction
                 and Imprisonment Claim

         Although Mr. Emerson alleges that he was unjustly convicted and imprisoned, 28
U.S.C. $ 1495 cannot provide a basis for jurisdiction in his case. For one thing, as the
govemment observes in its motion to dismiss, Mr. Emerson's conviction was not for an
"offense against the United States." 28 U.S.C. $ 1495. Rather, he was convicted in a
Texas state court under Texas state law. See Emerson, 756 S.W. 2d at 365; Emerson,
544 F. App'x at 326; see also Robinson v. United States, No. 99-5120, 2000 WL 158487,
at t 1 (Fed. Cir. Feb. 1 1, 2000) (affirming Court of Federal Claims's dismissal for lack of
subject matter jurisdiction over plaintiff s complaint when plaintiff was hied and
convicted of criminal charges in Indiana state court); Jiron v. United States, 118 Fed. Cl.
190,201 (2014) (dismissing plaintiffs complaint for lack of subject matter jurisdiction
because plaintiff was tried and convicted of criminal charges in Colorado state court).
Therefore, because $ 1495 grants this court jurisdiction to hear claims only by a person
unjustly convicted of an offense against the United States, that statute does not provide a
basis for jurisdiction over Mr. Emerson's claim.

        A separate and independent ground on which Mr. Emerson's unjust conviction
and imprisonment claim must be dismissed is that Mr. Emerson has not provided, as
required under 28 U.S.C. g 25 13, a certificate proving that his conviction was set aside by
a court on the ground that he is not guilty or that he has been pardoned upon the stated
ground ofinnocence. See. e.g., Humphrey v. United States, 52 Fed. Cl. 593, 598 (2002)
(holding that Court of Federal Claims lacked jurisdiction to entertain claim ofunjust
conviction and imprisonment, absent a valid certificate ofinnocence), afPd, 60 F. App'x
292,295 (Fed. Cir. 2003). Further, and even regardless of the requirement to fumish a
certificate, Mr. Emerson is currently imprisoned on a conviction that, to the court's
understanding, has not been set aside. Although his second conviction was reversed by
the Texas Court of Criminal Appeals, his first conviction was affirmed on direct appeal.
Emerson, 544 F. App'x at 326 (citing Emerson, 756 S.W. 2d at 370). Because Mr.
Emerson has not and cannot satisfu jurisdictional prerequisites under 28 U.S.C. $$ 1492
and25l3, the Court must dismiss his claim for unjust conviction and imprisonment.

            B.   The Court Does Not Have Jurisdiction to Grant Habeas Corpus
                 Relief or to Review Other Courts' Denials of Such Relief

        Mr. Emerson cites the habeas statute throughout his complaint and seeks
 "[i]mmediate enforcement" of that statute as relief. Compl. at 1,4-8. That statute,
however, explicitly provides a list of courts and judicial officers authorized to entertain
habeas applications, and this list does not include the Court ofFederal Claims or any
judge thereof. 28 U.S.C. g 225a@) ("The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for a writ ofhabeas corpus in
behalfofa person in custody pursuant to the judgment ofa State court . . . .,'); see also
Ledford v. United States,297 F.3d 1378, 1381 (Fed. Cir.2002). Thus. to the extent that
Mr. Emerson's complaint seeks a writ of habeas corpus from this Court, it must be
dismissed for lack of subject matter jurisdiction.

           C. The Court Lacks Jurisdiction Over Mr. Emerson's Tort. Criminal.
               and Constitutional Claims

        As noted above, Mr. Emerson names as defendants sixteen federal district and
appellate judges and alleges that they have "conspired to actively injure, oppress, tlreaten
and intimidate" him for exercising his constitutional rights. Compl. at 1 , 7. As a
preliminary matter, this Court only has jurisdiction over claims "against the United
 States." 28 U.S.C. $ 1a91(a)(1) ("The United States Court of Federal Claims shall have
jurisdiction to render judgment upon any claim against the United States . . . ."). It does
not have jurisdiction over claims against individuals in general or federal judges in
particular. See Brown v. United States, 105F.3d 621,624 (Fed. Cir. 1997) ("The Tucker
Act grants the Court of Federal Claims jurisdiction over suits against the United States,
not against individual federal officials"); Coleman v. United States, 1 16 Fed. Cl. 461, 470
 (2014) (citing Mireles v. Waco, 502 U.S. 9, 11-13 (1991)) (observing that "[]udges enjoy
immunity from suit for activities performed in their official judicial capacity").

         Moreover, in asserting that the actions of the judges named in his complaint
violated his constitutional rights and that the judges "conspired to actively injure,
oppress, threaten and intimidate" him, Mr. Emerson appears to allege tortious and
criminal conduct. Compl. at 7. This Court, however, does not have jurisdiction over
claims sounding in tort, nor does it have jurisdiction "to adjudicate any claims
whatsoever under the federal criminal code." Joshua v. United States,17 F.ld378,379
(Fed. Cir. 1994); see also 28 U.S.C. g 1a91(a)(1) ("The United States Court ofFederal
Claims shall have jurisdiction to render judgment upon any claim against the United
 States . . . not sounding in tort"); Coleman, 1 16 Fed. Cl. at 471(dismissing for lack of
jurisdiction tort claims brought against a federal judge). Furthermore, this Court does not
have jurisdiction over Mr. Emerson's constitutional claims because the constitutional
provisions that he cites do not mandate the payment of money damages. See. e.q., United
 States v. Connolly,716 F.2d 882, 887 (Fed. Cir. 1983) ("[T]he [F]irst [A]mendment. . .
cannot be . . . interpreted to command the payment of money"); LeBlanc v. United States,
 50 F.3d 1025, 1028 (Fed. Cir. 1995) ("[T]he Due Process Clause ofthe Fifth and
Fourleenth Amendments [and] the Equal Protection Clause . . . . do not mandate payment
of money by the govemment."); Carter v. United States,228 Ct. Cl. 898, 900 (Ct. Cl.
 1981) (observing that the Thirteenth Amendment "do[es] not grant a right to the payrnent
of money"); Jiron, 1 1 8 Fed. Cl. at 199 (observing that the Court of Federal Claims does
not have "jurisdiction to adjudicate ciaims under the Fourth, Sixth, Seventh, Eighth,
Ninth, and Tenth Amendments to the United States Constitution"). As a result. Mr.
Emerson's claims grounded on constitutional rights or criminal statutes must be
dismissed for lack of subject matter jurisdiction.
           D. The Court    Does Not Have    Jurisdiction to Grant Mr. Ernerson,s
               Request for Equitable Relief

         Finally, this Court does not have jurisdiction to grant Mr. Emerson's request for
 equitable relief. "Unlike the district courts . . . the [Court of Federal Claims] has no
 general power to provide equitable relief against the Govemment or its officers.,, United
 States v. Tohono O'Odham Nation, 131 S. Ct. 1723,1729 (2011). Rather, the Court has
jurisdiction over claims "for liquidated or unliquidated damages,', and only ,,[t]o provide
an entire remedy and to complete the relief afforded by [a money judgment], the court
may, as an incident of and collateral to any such judgment," grant equitable relief. 28
U.S.C. $ 1491(a). Especially in light ofthe Court's conclusion that it lacks jurisdiction
over all of Mr. Emerson's claims, his request for equitable reliefis not "an incident ofor
collateral to" any claim for monetary reliefover which the Court has jurisdiction.

                                     CONCLUSION

        As explained above, the govemment's motion to dismiss is GRANTED and
plaintiff s complaint is DISMISSED without prejudice. Plaintiff s motions for judgment
on the pleadings and for summary judgment are DENIED as moot. The Clerk of the
Court shall enter judgment accordingly.

       IT IS SO ORDERED.


                                                        0-M-
                                                     ELAINE D. KAPLAN
                                                     Judge
