                            ORI       AL ~
            3Jn tbe mtniteb     <tCourt of eberal <tClaims
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                                           No. 17-643C

                                      (Filed: August 3, 2017)

 **********************************
                                              )
 RICHARD J. BOBKA,                            )      Challenge to conviction and imprisonment;
                                              )      contractual claims; statutory and rule-
                        Plaintiff,            )      based claims; jurisdiction
                                              )
        ~                                     )
 UNITED STATES,
                                              )
                                              )
                                                                                  FILED
                                              )                                   AUG - 3 2017
                        Defendant.            )
                                              )                                  U.S. COURT OF
                                                                                FEDERAL CLAIMS
 **********************************

       Richard J. Bobka,pro se, Estill, South Carolina.

         Isaac B. Rosenberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Depaitment of Justice, Washington, D.C., for defendant. With him on the briefs
were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman,
Jr., Director, and Patricia M . McCaithy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

       Plaintiff, Richai·d J. Bobka, brings suit to challenge his allegedly unjust conviction and
imprisonment that resulted from criminal charges filed against him in the United States District
Court for the Middle District of Florida. Mr. Bobka pleaded guilty to multiple felony counts in
2012 and was sentenced to 180-months (15 years) imprisonment, but he now alleges he was
"forced" into entering contracts with the government while under duress and that such contracts
were used to convict him. He also alleges that the government violated numerous constitutional
amendments, criminal and civil statutes, and the Federal Rules of Civil Procedure, and that the
government engaged in tortious conduct. He seeks damages, a vacated sentence, and an
immediate release from prison, among other injunctive relief.

        Pending before the court is the government's motion to dismiss plaintiffs complaint. For
the reasons stated, the government's motion to dismiss is granted pursuant to Rules 12(b)(l) and
12(b)(6) of the Rules of the Court of Federal Claims ("RCFC").



                                                                7017 1450 DODO 1346 3875
                                         BACKGROUND

        On Febmary 10, 2012, Mr. Bobka pied guilty to multiple felony counts for his
involvement in a "mortgage fraud conspirac[y]." See United States v. Cavallo, 790 F.3d 1202,
1210 & n.1 (11th Cir. 2015); Acceptance of Plea of Guilty and Adjudication of Guilt, United
States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012), ECF No. 491. He did so
through a "straight up plea" before the United States District Court for the Middle District of
Florida. Guilty Plea Minutes, United States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla.
Oct. 30, 2012), ECF No. 487. 1 He was thereafter sentenced to 180-months imprisonment and
ordered to pay approximately $22.8 million in restitution. Judgment at 3, 6, United States v.
Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Oct. 30, 2012), ECF No. 823. Three of the
approximately nineteen defendants involved in the conspiracy appealed their convictions, but
Mr. Bobka did not appeal his conviction or his sentence. See Cavallo, 790 F.3d at 1210.

        Mr. Bobka filed suit in this coUlt on May 15, 2017, bringing claims for unjust conviction
and false imprisonment. See generally Campi. In support, Mr. Bobka alleges that he entered
into "a combination of express, adhesion, and implied contracts" with the government, and that
those contracts were "used to convict and imprison [him]." Comp!., 20. He fmther alleges that
the government "forced" him to enter into those purported contracts while he was under duress.
See, e.g., Comp!.,, 3, 7, 49. Therefore, according to Mr. Bobka, the alleged contracts that
formed the basis for his conviction and imprisonment should be considered "null and void."
Comp!. , 21; see also Campi. ii, 1, 3.

        In challenging his conviction and imprisonment, Mr. Bobka alleges that the government
has violated seven constitutional amendments, specifically, the Fourth, Fifth (Due Process
Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection
Clauses) Amendments. Comp!., 23. He also invokes numerous criminal statutes, provisions of
the Civil Rights Act (codified at 42 U.S.C. §§ 1985-86), the statute governing the oath taken by
justices and judges (codified at 28 U .S.C. § 453), a provision of the Rehabilitation Act of 1973,
Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-18), and the Federal Rules of
Civil Procedure. See Comp!.,, 25-38. Additionally, he alleges that the government has
committed fraud, acted negligently, damaged his reputation, conspired against him, inflicted
emotional distress upon him, and abused him. See Comp!.,, 32, 40, 43. To remediate the
government's alleged wrongdoing, Mr. Bobka requests that the court (1) award him
approximately $47 million in compensatory and punitive damages, Comp!., 40, and (2) vacate
his conviction and order his immediate release, among other injunctive relief, see Comp!. at 16-
17.

       1
          Mr. Bobka pied guilty four days after the trial of three other defendants and himself had
begun. See Cavallo, 790 F.3d at 1210 n.l, 1237. The other three defendants were convicted
after a jury trial, and their appeal from those convictions was resolved by the Eleventh Circuit's
decision in Cavallo.
       A number of other individuals were involved in the fraudulent scheme. "Fifteen of the
defendants' cohorts pied guilty either to the conspiracy count or to at least one substantive
count." Cavallo, 790 F.3d at 1210.

                                                 2
                                 STANDARDS FOR DECISION

                                          A. Jurisdiction

       A plaintiff bears the burden of establishing jurisdiction by a preponderance of the
evidence, Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and the leniency
afforded prose litigants with respect to formalities does not relieve them of jurisdictional
requirements, Kelley v. Secretary, United States Dep 't ofLabor, 812 F.2d 1378, 1380 (Fed. Cir.
1987).

        Pursuant to the Tucker Act, this comt has jurisdiction "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 to1t." 28
U.S.C. § 149l(a)(l). The Tucker Act waives sovereign immunity and allows a plaintiff to sue
the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but it
does not provide a plaintiff with substantive rights, United States v. Testan, 424 U.S. 392, 398
(1976). To establish jurisdiction, "a plaintiff must identify a separate source of substantive law
that creates the right to money damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en bane in relevant pmt) (citing Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).

                        B. Whether Plaintiff Has Stated a Plausible Claim

         A defendant can seek dismissal under RCFC 12(b)( 6) if the complaint fails to state a
claim upon which the court can grant relief. Under that rule, a complaint must "contain
sufficient factual matter," which for the purpose of the motion the court assumes to be true, "to
'state a claim to reliefthat is plausible on its face."' Ashcroft v Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That rule is applied less
stringently when the complaint is filed by a prose plaintiff. Pieczenik v. Bayer Corp., 474 Fed.
Appx. 766, 770 (Fed. Cir. 2012) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)). In such
instances, the court should search the complaint and record "to see if plaintiff has a cause of
action somewhere displayed." Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969).

                                            ANALYSIS

                                       A. 28 US.C. § 1495

       Mr. Bobka endeavors to invoke this court's jurisdiction by relying on 28 U.S.C. § 1495,
which provides the court with 'jurisdiction to render judgment upon any claim for damages by
any person unjustly convicted of an offense against the United States and imprisoned." See
Comp!. at I. A plaintiff bringing suit pursuant to 28 U.S.C. § 1495 must satisfy the conditions of
28 U.S.C. § 2513 by, mnong other requirements, alleging and proving that:

       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


                                                  3
        not guilty of such offense, as appears from the record or certificate of the court
        setting aside or reversing such conviction, or that he has been pardoned upon the
        stated ground of innocence and unjust conviction ....

28 U.S.C. § 2513(a)(l). The resulting requirements under these paired statutes have "always
 been strictly construed." Vincin v. United States, 468 F.2d 930, 933 (Ct. Cl. 1972) (citations
omitted). As a result, an unjust conviction and imprisonment claim must be established by either
a certificate or explicit finding of innocence granted by the court or a pardon. See Hadley v.
 United States, 66 F. Supp. 140, 141 (Ct. Cl. 1946); see also Brickey v. United States, 116 Fed.
Cl. 71, 79 (2014). Such a certificate or explicit finding of innocence or pardon must either
expressly or by factual recitation state that the plaintiff has satisfied the requirements of Section
2513. See Andolschek v. United States, 77 F. Supp. 950, 951 (Ct. Cl. 1948); see also Sykes v.
 United States, 105 Fed. Cl. 231, 233 (2012). "In acting on a claim predicated upon Sections
 1495 and 2513, this court 'does not have the power to review and ove1turn convictions or to
review in detail the facts smrnunding a conviction or imprisonment.'" Sykes, 105 Fed. Cl. at 233
(quoting Zakiya v. United States, 79 Fed. Cl. 231, 234-35 (2007), ajf'd, 277 Fed. Appx. 985
(Fed. Cir. 2008)). Because Mr. Bobka has not alleged or established that he obtained a
ce1tificate or explicit finding of innocence or that he received a pardon in accord with Section
2513, his unjust conviction claim must be dismissed. That dismissal should be entered under
RCFC 12(b)(6) rather than RCFC 12(b)(l). See Engage Learning, Inc. v. Salazar, 660 F.3d
1346, 1354 (Fed. Cir. 2011) ("To the extent a successful claim against the government requires
compliance with all statutory elements of the claim, failure of proof of an element of the cause of
action means the p[laintiffl is not entitled to the relief he seeks. To conclude in such a case that
the p[laintiff] loses because the forum is 'without jurisdiction' is to obscure the natme of the
defect. It would be more accurate to conclude that the p[laintiff] has failed to prove the
necessary elements of a cause for which relief could be granted.") (quoting Spruill v. Merit Sys.
Prat. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992)); see also Sykes, 105 Fed. Cl. at 234 (citing and
quoting Engage Learning, 660 F.3d at 1354; Adair v. United States, 497 F.3d 1244, 1251 (Fed.
Cir. 2007); and Fisher, 402 F.3d at 1171-76).

                                        B. Contract Claims

        Mr. Bobka further alleges that he entered into express and implied contracts with the
government in connection with his conviction and imprisonment. See, e.g., Comp!.,, 1, 3, 7,
 15-21. Claims for breach of contract typically fall within the court's jurisdiction pursuant to the
Tucker Act, see 28 U.S.C. § 1491(a)(l); Bussie v. United States, 96 Fed. Cl. 89, 97 (2011), ajf'd,
443 Fed. Appx. 542 (Fed. Cir. 2011), and there is generally a "presumption in the civil context
that a damages remedy will be available upon the breach of an agreement," Sanders v. United
States, 252 F.3d 1329, 1334 (Fed. Cir. 2001). Nonetheless, "contracts that are entirely concerned
with the conduct of parties in a criminal case, without a clear, unmistakable statement triggering
monetary liability, do not invoke Tucker Act jurisdiction." Higbie v. United States, 778 F.3d
990, 993 (Fed. Cir. 2015) (citation omitted); see also Sanders, 252 F.3d at 1334-35 (recognizing
that "a damages remedy is not ordinarily available" where the alleged agreement "is entirely
concerned with the conduct of the paities in a criminal case") (citing Kania v. United States, 650
F.2d 264, 268 (Ct. Cl. 1981)); Schweitzer v. United States, 82 Fed. Cl. 592, 596-97 (2008)
(finding that the court lacked jurisdiction over plaintiffs' "contract claims arising out of the use


                                                 4
of plea agreements in the criminal justice system" because such agreements did not "'clearly and
unmistakably' subject[] the government to any monetary liability whatsoever for any breach")
(citing Sanders, 252 F.3d at 1335-36).

         Here, Mr. Bobka pied guilty through a "straight up plea" in district court. Guilty Plea
Minutes, United States v. Babka, No. 8: 10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012); see also
Acceptance of Plea of Guilty and Adjudication of Guilt, United States v. Babka, No. 8:10-550-
EAK-MAP-4 (M.D. Fla. Feb. 10, 2012). His complaint in this court references a series of
alleged "contracts" in connection with that guilty plea and conviction, see, e.g., Comp!. iii! 1, 20,
but he fails to set forth any details or specific agreements that could subject the government to
monetary liability, as required by the Tucker Act, see Higbie, 778 F.3d at 993. He instead
supp mis his contract claims by alleging that the government's criminal prosecution established
"an implied or constructive trust relationship" between himself and the government, Comp!. if 9,
and that his incarceration has resulted in a contract that binds Mr. Bobka "to the government's
terms," Comp!. ii 15. This court, however, lacks jurisdiction over both constructive trust claims,
see Frank & Breslow, LLP v. United States, 43 Fed. Cl. 65, 68 (1999) (citations omitted), and
implied-in-law contract claims where a party alleges that "the law imposes a duty in order to
prevent injustice," International Data Prod. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.
Cir. 2007); see also Hercules Inc. v. United States, 516 U.S. 417, 423 (1996) (explaining that
Tucker Act jurisdiction "extends only to contracts either express or implied in fact, and not to
claims on contracts implied in law") (citations omitted). Mr. Bobka's contract claims therefore
fall outside the jurisdiction of this couti.

                                     C. Constitutional Claims

        Mr. Bobka also alleges that the government has violated the Fourth, Fifth (Due Process
 Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection
 Clauses) Amendments. Comp!. ii 23. Under the circumstances, these stand-alone constitutional
 claims are not properly before this court because they are not money-mandating. See Brown v.
 United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (holding that the Fourth Amendment does not
mandate payment and therefore such claims are not within the jurisdiction of the court) (citing
Mitchell, 463 U.S. at 218; Murray v. United States, 817 F.2d 1580, 1582-83 (Fed. Cir. 1987));
Milas v. United States, 42 Fed. CL 704, 710 (1999) (holding that the couti lacks jurisdiction over
Sixth Amendment claims because the Sixth Amendment is not money-mandating) (citations
 omitted), ajj"d, 217 F.3d 854 (Fed. Cir. 1999); Harris v. United States, 118 Fed. Cl. 180, 190
(2014) (ruling that claims under the Seventh Amendment are not properly brought in this court
because the Seventh Amendment is not money-mandating) (citation omitted), recons. denied,
No. 14-229C, 2014 WL 6853273 (Fed. Cl. Dec. 5, 2014); Trafny v. United States, 503 F.3d
 1339, 1340 (Fed. Cir. 2007) (providing that the court "does not have jurisdiction over claims
arising under the Eighth Amendment, as the Eighth Amendment 'is not a money-mandating
provision."') (citations omitted); Fullard v. United States, 78 Fed. Cl. 294, 301 n.12 (2007)
(explaining that "the Eleventh Amendment has no application in this court"); LeBlanc v. United
States, 50 F .3d 1025, 1028 (Fed. Cir. 1995) (holding that the Equal Protection and Due Process
Clauses of the Fifth and Fourteenth Amendments do not provide "a sufficient basis for
jurisdiction because they do not mandate payment of money by the government") (citations
omitted).


                                                  5
                               D. Statutory and Rule-Based Claims

        Mr. Bobka's additional claims based upon federal statutes or rules, which include
allegations related to criminal wrongdoing, the Civil Rights Act, judicial misconduct, the
Rehabilitation Act of 1973, and the Federal Rules of Civil Procedure, are jurisdictionally
unavailing. Mr. Bobka alleges violations of multiple criminal statutes, such as 18 U.S.C. § 1001,
which criminalizes false statements, see Comp!.'\['\[ 25-29, 34-35, but the court lacks jurisdiction
over these claims, see 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."). He also
attempts to invoke 42 U.S.C. §§ 1985 and 1986, Comp!.'\['\[ 31-32, but "jurisdiction over claims
arising under the Civil Rights Act resides exclusively in the district courts," Hardin v. United
States, 123 Fed. Cl. 667, 671 (2015) (quoting Marlin v. United States, 63 Fed. Cl. 475, 476
(2005), appeal dismissed, 146 Fed. Appx. 491 (Fed. Cir. 2005)). Mr. Bobka's claim of judicial
misconduct based upon 28 U.S.C. § 453, which governs the oath for justices and judges, see
Comp!. '\[ 30, is also outside the jurisdiction of the court because that statute does not provide Mr.
Bobka with "an independent right to monetary damages," Hardin v. United States, No. 14-557C,
2014 WL 4724472, at *3 (Fed. Cl. Sept. 23, 2014) (citation omitted). Further, Mr. Bobka's
reliance on the Rehabilitation Act of 1973, see Comp!. if 33, is unavailing because "jurisdiction
for such claims lies exclusively with the district courts," Searles v. United States, 88 Fed. Cl.
801, 805 (2009) (citing cases). The court also lacks jurisdiction over claims based upon the
Federal Rules of Civil Procedure, as they are not money-mandating. See Young v. United States,
88 Fed. Cl. 283, 288 (2009), appeal dismissed, 367 Fed. Appx. 125 (Fed. Cir. 2009). Thus, none
of the statutes or rules cited by Mr. Bobka provide this court with jurisdiction.

                                       E. Tort-Based Claims

        Mr. Bobka also alleges that the government engaged in tortious conduct, e.g., fraud,
negligence, and defamation. See, e.g., Comp!.'\['\[ 32, 40, 43. This court, however, does not have
jurisdiction over allegations based in tort. Rick's Mushroom Serv., Inc. v. United States, 521
F.3d 1338, 1343 (Fed. Cir. 2008). To the extent that such claims fall within the Federal Tort
Claims Act ("FTCA"), see 28 U.S.C. §§ 2671-80; see also 28 U.S.C. § 1346(b), the "district
courts have exclusive jurisdiction to consider tort claims against the United States that fall within
the purview of the FTCA," Zhao v. United States, 91 Fed. Cl. 95, 100 (2010) (citing 28 U.S.C. §
1346(b); Wood v. United States, 961F.2d195, 197 (Fed. Cir. 1992)).

                                     F Statute ofLimitations

        Mr. Bobka's claims are also time-barred in part by 28 U.S.C. § 2501, which provides that
a claim must be "filed within six years after such claim first accrues." A cause of action first
accrues "when all the events which fix the government's alleged liability have occurred and the
plaintiff was or should have been aware of their existence." San Carlos Apache Tribe v. United
States, 639 F.3d 1346, 13 50 (Fed. Cir. 2011) (quoting Hop/and Band of Pomo Indians v. United
States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). Section 2501 is jurisdictional and carmot be tolled
for equitable reasons. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008).


                                                  6
Here, Mr. Bobka alleges that the government's wrongdoing occurred "between January 1, 2010
and December 15, 2012." Comp!. if 24. Therefore, because he did not file suit until May 15,
2017, Mr. Bobka's claims are time-barred to the extent that such claims accrued before May 15,
2011.

                                      G. Punitive Damages

        Additionally, Mr. Bobka requests punitive damages, see Comp!. if 40, but the court lacks
jurisdiction to grant such a request, Bussie, 96 Fed. Cl. at 96 (citing Environmental Safety
Consultants, Inc. v. United States, 95 Fed. Cl. 77, 98 (2010) (in turn citing 28 U.S.C. § 1491(a);
Mastrolia v. United States, 91 Fed. Cl. 369, 382 (2010))).

                                       H Injunctive Relief

        Finally, Mr. Bobka requests that the court vacate his conviction and order his immediate
release, among other injunctive relief. See Comp!. at 16-17. The court does not have jurisdiction
to provide such a remedy. Taylor v. United States, 113 Fed. Cl. 171, 173 (2013) ("The Tucker
Act does not provide independent jurisdiction over .. , claims for equitable relief."). Even if Mr.
Bobka's request is construed as a petition for a writ of habeas corpus, the court is not "among
those courts empowered" to grant such a writ under the habeas statute, 28 U.S.C. § 2241. See
Ledford v. United States, 297 F.3d 13 78, 1381 (Fed. Cir. 2002); see also 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.").

                                         CONCLUSION

     For the reasons stated, the government's motion to dismiss is GRANTED pursuant to
RCFC 12(b)(l) and 12(b)(6). The clerk shall enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.


                                                     Charles F. Letlow
                                                     Judge




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