In the United States Court of Federal Claims

NO. 18-1339T
(Fiied; Api~il 11,2019)

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HAROLD KUPERSMIT, *
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Piaintiff, *
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* Pro Se Plaintiff; RCFC lZ(b)(l); Subject
v. - - '
,k Matter Jurisdiction
THE UNITED STATES, *
*
Defendant. ’*‘

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Harold Kupersrnit, Yardley, PA, appearing pro se.

Lauren Moore, United States Department of Justice, Washington, DC, for defendant
OPINION AND ORDER

SWEENEY, Chief Judge

This case arises out of pro se plaintiff Harold Kupersmit’s efforts to recover money for
the lnternal Revenue Service’s (“iRS”) purported Wrongdoing. Speciticaliy, Mr. Kupersmit
alleges that he is entitled to compensation because of the IRS’s fraud, arrogance, hubris, deceit,
and grecd. Defendant moves to dismiss Mr. Kupersmit’s complaint for lack of subject matter
jurisdiction and for failure to state a claim upon Which relief can be granted As explained
below, the court lacks jurisdiction to consider Mr. Kupersmit’s ciaims. Thus, the court grants
defendant’s motion and dismisses the complaintl

I. BACKGROUND

Mr. Kupersmit and his spouse have a long-simmering dispute With the IRS concerning
the levying of taxes, processing of appeais, and the imposition of filing restrictions.[ One issue

 

1 The court derives the allegations from l\/[r. Kupersmit’s complaint and the petition for
Writ of certiorari that he incorporated by reference. § Compl. 2 (requesting that the court
obtain a copy of the filing in United States Supreme Court (“Suprerne Couit”) case number 16-
453 “by that little old lady from Bucks [County]”_an apparent reference to his wife, the
petitioner)', Petition for Writ of Certiorari (“Pet.”), Kupersmit v. Comrn’r, 137 S. Ct. 1137 (2017)
(No. 16-453), 2016 WL 5864457.

 

raised by Mrs. Kupersniit in that dispute was “the inaccurate reporting of thoroughbred racetrack
gambling activity for effective and accurate tax purposes.” Pet. l.

Mr. Kupersmit filed the instant lawsuit on November 26, 2018, using the “Pro Se
Cornplaint Forrn” available on the court’s website.2 In the complaint’s “Jurisdiction” section, he
makes four assertions First, he states that the IRS and the Commissioner of Internal Revenue
have “cornrnitted fraud, arrogances, hubris, deceit, [and] greed.” Compl. l. Second, he contends
that “all gamblers are due $100,000 damages.” LJ. Third, he avers that the United States District
Court for the Eastern District of Pennsylvania (“District Court”) “has refused to issue a valid
docket [number]” for a case Mr. Kupersmit Wished to .tile,3 id_., as reflected by a letter attached to
his complaint in which the clerk of the District Court explained that she Was returning Mr.
Kupersmit’s documents pursuant to a standing order precluding Mr. Kupersmit from filing a new
complaint Fourth, he asserts that the Supreme Court “has refused to intervene.” §

ln the “Staternent of the Claim” section of the form complaint, Mr. Kupersmit directs the
court to a petition for writ of certiorari filed in Supreme Court case number 16-453, which
summarizes his ongoing dispute with the IRS and the Cornrnissioner of internal Revenue.
Finally, in the complaint’s “Relief” section, Mr. Kupersrnit requests “gambler relief,” “darnages
for $'FSOM,” and “any other relief this honorable court[] deems just, proper, [and] necessary.”
Id. at 3.

Defendant filed a motion to dismiss Mr. Kupersrnit’s complaint pursuant to Rules
lZ(b)(l) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”).
Plaintiff subsequently filed a response in opposition to defendant’s motion Finding a reply from
defendant and oral argument unnecessary, the court deems defendant’s motion to be ripe for
adjudicationl

 

2 Mr. Kupersmit attached an assortment of documents to his complaint, including (l) a
confidential request for investigation form in which he asked the Pennsylvania Judicial Conduct
Board for an ethics investigation of a deceased judge, (2) two motions, apparently filed in New
Jersey state court, in which he requested an interlocutory appeal concerning his alleged
Violations of state traffic laws, (3) a letter from the clerk of the Superior Court of New Jersey’s
Appellate Division in Which the clerk explained why he Was returning documents to Mr.
Kupersmit, (4) a motion for a more definitive statement he apparently filed in a Comrnonwealth
of Pennsylvania Superior Court case, and (5) an ethics complaint against a Pennsylvania state
senator-electl l\/lr. Kupersmit, however, does not reference these documents in his complaint,
and the court cannot discern how the materials relate to his allegations against the IRS.

3 Mr. Kupersmit does not explain the subject matter of the lawsuit he Wanted to tile in
the District Court,

 

n. LEGAL sTANnARDs
A. RCFC rz(b)(r)

In determining whether subject matter jurisdiction exists, the court generally “must
accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration, lnc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). With respect to a motion to dismiss for lack of subject matter jurisdiction
pursuant to RCFC lZ(b)(l), the plaintiff bears the burden of proving, by a preponderance of
evidence, that the court possesses subject matter jurisdiction lundy However, the court is not
limited to the pleadings in considering subject matter jurisdiction Banks v. United States, 74l
F.3d 1268, 1277 (Fed. Cir. 2014)‘, Pucciariello v. United States, 116 Fed. Cl. 390, 400 (2014).
Further, the court has no subject matter jurisdiction over frivolous claims Moden v. United
States, 404 F.3d 1335, 1340-41 (Fed. Cir. 2005). For example, there is no subject matter
jurisdiction over claims that are “so insubstantial, implausible, foreclosed by prior decisions . . . ,
or otherwise completely devoid of merit as not to involve a federal controversy.” I~c_L at 1341
(internal quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A]
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the Wholly incredible . . . .”). lf the court finds that it lacks subject matter
jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

B. Pro Se Plaintiffs

Pro se pleadings are “held to less stringent standards than formal pleadings drafted by
lawyers” and are “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (internal quotation marks omitted). However, the “1eniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.”
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007); accord Henke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995) (“The fact that [the plaintiff] acted pro se in the drafting of his
complaint may explain its ambiguities, but it does not excuse its failures, if such there be.”). in
other words, a pro se plaintiff is not excused from his burden of proving, by a preponderance of
evidence, that the court possesses jurisdiction w McNutt v. Gen. l\/lotors Acceptance Corp.,
293 U.S. 178, 179 (1936); Banks, 741 F.3d at 1277 (citing Revnolds v. Armv & Air Force Exch.
§"er”L, 846 F.2d 746, 748 (Fed. Cir. 1988)).

 

C. Subject Matter Jurisdiction

Whether the court possesses jurisdiction to decide the merits of a case is a “threshold
matter.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). Subject matter
jurisdiction cannot be waived or forfeited because it “involves a court’s power to hear a case.”
Ar'baugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S.
625, 630 (2002)). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.” Ex parte l\/IcCardle, 74 U.S. (7 Wall)
506, 514 (1868). Therefore, it is “an inflexible matter that must be considered before proceeding

_3_

 

to evaluate the merits of a case.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); accord
K-Con Blda. Svs., Inc. v. United States, 778 F.3d 1000, 1004~05 (Fed. Cir. 2015). Either party,
or the court sua sponte, may challenge the court’s subject matter jurisdiction at any time.
Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. Cl. 203, 209»10 (2016)
(collecting cases).

 

D. The Tucker Act

'l`he ability of the United States Court of Federal Claims (“Court of Federal Clairns”) to
entertain suits against the United States is limited. “The United States, as sovereign, is immune
from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity “rnay not he inferred, but must be unequivocally expressed.” United
States v. White Mountain Apache Tr'ibe, 537 U.S. 465, 472 (2003). The Tucker Act, the
principal statute governing the jurisdiction of this court, waives sovereign immunity for claims
against the United States, not sounding in tort, that are founded upon the United States
Constitution, a federal statute or regulation, or an express or implied contract with the United
States. 28 U.S.C. § 1491(a)(1) (2012); White Mountain, 537 U.S. at 472. I-Iowever, the Tucker
Act is merely a jurisdictional statute and c‘does not create any substantive right enforceable
against the United States for money damages.” United States v. Testan, 424 U.S. 392, 298
(1976). lnstead, the substantive right must appear in another source of law, such as a “money-
mandating constitutional provision, statute or regulation that has been violated, or an express or
implied contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545,
1554 (Fed. Cir. 1994) (en banc).

III. ANALYSIS

Defendant argues that the court should dismiss l\/lr. Kupersmit’s complaint for lack of
jurisdiction because he has not identified a money-mandating source for relief in the Court of
Federal Claims. lnstead, defendant observes, Mr. Kupersmit asserts claims based in tort or
criminal conduct that are beyond this court’s jurisdiction l\/ir. Kupersmit responds that
defendant’s motion should be denied because he has alleged sufficient facts regarding IRS
corruption, and the government has not provided any material facts that would overcome his
allegations

Mr. Kupersmit seeks “gambler relief” and $750 million based on facts set forth in his
wife’s petition for writ of certiorari Although he did not identify what facts or claims in that
petition he now seeks to litigate in this court, the court finds instructive his statements in the
jurisdiction section of his complaint Specifically, the court construes Mr. Kupersmit’s statement
that the IRS and its commissioner committed fraud, arrogance, hubris, deceit, and greed as the
claims Mr. Kupersrnit wants to litigate related to the petition. The court also identifies separate
claims based on the District Court’s decision to not issue a docket number for a case he wanted
to litigate, and the Supreme Court’s decision to not intervene in his favor.

'l`he court begins with Mr. Kupersmit’s claims derived from the petitionmi.e., claims that
the government and its agent committed fraud, arrogance, hubris, deceit, and greed. Federal
courts cannot entertain claims of arr'ogance, hubris, and greed, and the Court of Federal Claims

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lacks jurisdiction over claims of fraud and deceit because such claims sound in tort. § 28
U.S.C. § l49l(a)(l); Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998) (noting that
the Court of Federal Claims lack of jurisdiction over claims sounding in tort); Brown v. United
States, 105 F.3d 621, 623 (Fed. Cir. 1997) (explaining that the court lacks jurisdiction over fraud
claims because they sound in tort); Elkins v. United States, 229 Ct. Cl. 607, 608 (1981) (per
curiam) (explaining that the court lacks jurisdiction over deception claims because they sound in
tort). Although claims of fraud and deceit may also be construed as claims of criminal conduct,
the court lacks jurisdiction over criminal matters Joshua v. United States, 17 F.3d 378, 379-80
(Fed. Cir. 1994). The court also lacks jurisdiction over Mr. Kupersmit’s claims to the extent that
he is attempting to obtain relief from the IRS Commissioner because the court has “jurisdiction
over suits against the United States, not against individual federal officials.” BroWn v. United
States, 105 F.3d 621, 624 (Fed. Cir. 1997); accord 28 U.S.C. § 149l(a)(1). Finally, with respect
to Mr. Kupersmit’s claims concerning the the District Court’s and Supreme Court’s decisions,
this court lacks jurisdiction to review those decisions E Joshua, 17 F.3d at 380 (“[T]he Court
of Federal Claims does not have jurisdiction to review the decisions of district courts or the
clerks of district courts relating to proceedings before those courts.”); see also 28 U.S.C. § 1491;
U.S. Bancorp l\/Iortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 27 (1994) (explaining the
importance of challenging adverse decisions through appeals rather than collateral attacks).

 

 

In sum, Mr. Kupersmit does not plead any claims within this court’s jurisdiction4
IV. CONCLUSION

F or the reasons explained above, the court GRANTS defendant’s motion to dismiss Mr.
Kupersmit’s complaint for lack of subject matter jurisdiction pursuant to RCFC l2(b)(l). Mr.
Kupersmit’s complaint is DISMISSED WITHOUT PREJUDICE. No costs. The clerk is

directed to enter judgment accordinglyl
/7// uan ..

RGjl RETM. S'WIE
Chie lirdge

IT IS SO ORDERED.

  

 

4 To the extent that the documents Mr. Kupersmit filed with his complaint (other than the
letter from the District Court Clerk) could be construed as reflecting his intention to allege
additional claims, the court would lack jurisdiction over those claims because the materials do
not pertain to any actions taken by the United States. E 28 U.S.C. § 1491(a)(1) (lirniting this
court’s jurisdiction to claims against the United States); accord Sherwood, 312 U.S. at 588
(stating, as to the United States Court of Claims_in relevant respects the predecessor to the
Court of Federal Claims_that “if the relief sought is against others than the United States the
suit as to them must be ignored as beyond the jurisdiction of the court”); see also M note 2
(reviewing the materials he submitted concerning various state court actions and ethics
complaints against state officials).

 

 

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