             ·.




          3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claims
                                         No. 14-793C
                                  (Filed January 30, 2015)
                                 NOT FOR PUBLICATION                             FILED
* * * * * * * * * * * * * * * * * *                                            JAN 3 0 2015
                                          *
FULTON GRIFFITH,                          *                                   U.S. COURT OF
                                                                             FEDERAL CLAIMS
                                          *
                    Plaintiff,            *
                                          *
              v.                          *
                                          *
THE UNITED STATES,                        *
                                          *
                    Defendant.            *
                                          *
* * * * * * * * * * * * * * * * * *

                    MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Pending before the court is defendant's motion to dismiss the complaint for
lack of subject-matter jurisdiction under Rule 12(b)(l) of the Rules of the United
States Court of Federal Claims ("RCFC"). For the reasons set forth below, the
Court finds that it lacks subject-matter jurisdiction over plaintiffs claims.
Defendant's motion to dismiss is therefore GRANTED.

                                   I. BACKGROUND

       Fulton Griffith, plaintiff, is currently a prisoner at the State of Florida's Dade
Correctional Institution. See Pl.'s Mot. for Leave to Proceed In Forma Pauperis.
Plaintiff filed complaint in this court on August 26, 2014. See Compl. Mister
Griffith, proceeding pro se, appears to request a declaration that "judges are not
immune" when they criminally deprive individuals of their constitutional rights;
that the 1866 Civil Rights Act gives "citizens a remedy at law to enforce civil and
constitutional rights"; and that when constitutional rights are "violate[d] willfully"
by a government agent "the violation constitutes a breach of contract" under the
Contract Clause of the United States Constitution. Id. if if 3-6.
       Plaintiff initially listed four federal judges --- the Chief Judge of the Eleventh
Circuit and three named judges of the Middle District of Florida --- as the
defendants in the case. After being informed by the Court that RCFC lO(a) requires
the United States to be the designated party defendant in complaints filed in this
court, see Order (Oct. 8, 2014), plaintiff began to properly identify the United States
as defendant in the caption of his documents.

       On October 27, 2014, the government filed a motion to dismiss plaintiffs
claim for lack of subject-matter jurisdiction under RCFC 12(b)(l). In its motion, the
government argues that, under the Tucker Act, 28 U.S.C. § 1491(a)(l), the Court
does not have jurisdiction to hear Mr. Griffith's claims because the claims are not
based on any money-mandating provisions of a statute or the Constitution. Def.'s
Mot. to Dismiss (Def.'s Mot.) at 3-4. The government notes that we do not have
jurisdiction to hear claims "sounding in tort or for civil wrongs" committed by
agents of the United States, for violations arising under the Civil Rights Act, or for
claims under the federal criminal code. Id. Finally, the government argues that
plaintiffs complaint requests equitable relief which falls outside the court's
jurisdiction because it is not "incident of and collateral to" a money judgment. Id.1

        In his response to the government's motion to dismiss, plaintiff appears to
concede that the Court lacks subject-matter jurisdiction on all of his claims except
"claim #6," which is the claim that a willful violation of constitutional rights by
government agents constitutes a breach of contract under the Contract Clause. Pl.'s
Response to Def.'s Mot. (Pl.'s Opp'n) at 1. Plaintiff argues that the court has
jurisdiction over contract disputes between individuals and the United States "for
money damage claims," and that plaintiffs claim fits under this category because it
is a claim "for breach of contract." Id.

       In its reply to plaintiffs response, the government argues that plaintiffs
Contract Clause claim does not confer jurisdiction on the court. See Def.'s Reply to
Pl's Opp'n. First, the government notes that this clause, U.S. Const. art. I, § 10, cl.
1, prohibits actions by a state and not the federal government. Id. at 1. Second, the
government argues that even if the Contract Clause applied to the actions of the
federal government, it is not a money-mandating provision and therefore this court
would not have jurisdiction over claims based on it. Id. at 2.


1 The government's motion to dismiss also points out, as was discussed above, that
in cases filed in our court the United States is the proper defendant, rather than
any individual federal judge. Def.'s Mot. at 4.


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                                   II. DISCUSSION

A. Legal Standards

       Under RCFC 12(b)(l), claims brought before this court must be dismissed
when it is shown that the court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, courts will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B & B Plastics, Inc., 291F.3d1324, 1326
(Fed. Cir. 2002) (requiring that 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"); CBY Design Builders v. United States, 105
Fed. Cl. 303, 325 (2012).

       While a prose plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court's jurisdiction from being dismissed, see, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991).

B. Analysis

        In this case, the rule that well-pled factual allegations are taken as true is of
little benefit to plaintiff, as the complaint does not contain any such allegations.
Mister Griffith seeks a declaration concerning unspecified "unlawful acts" allegedly
committed by four federal judges, which he refers to as "criminal deprivation of
constitutional rights." Compl. ifif 3-4. 2 Nothing in the complaint even suggests
what those acts might be. He also requests a declaration concerning the remedy
available under the 1866 Civil Rights Act and 18 U.S.C. § 242 "to enforce civil and
constitutional rights," id. if 5, without explaining the rights that were violated and
the actions which accomplished this. In his opposition to the government's motion
to dismiss, plaintiff concedes that the Court lacks subject-matter jurisdiction over
all of his claims save the one concerning the Constitution's Contract Clause. Pl.'s
Opp'n. But that claim seeks a declaration that when government agents "violate

2He also requests "civil purgh" [sic] of the "unlawful acts," Com pl. if 3, which the
Court construes as some sort of equitable (perhaps injunctive) relief.
                                          -3-
wil[l]fully any of the guaranteed rights under [the U.S.] Constitution the violation
constitutes a breach of contract" under the Contract Clause. Compl. if 6. Again,
Mr. Griffith identifies neither the conduct of the judges nor the rights that they
allegedly violated.

       The jurisdiction of the Court of Federal Claims is primarily governed by the
Tucker Act, which provides the authority to render judgment on claims seeking
monetary damages against the United States. 28 U.S.C. § 1491; see United States v.
Mitchell, 463 U.S. 206, 215-18 (1983). Because the Tucker Act does not create any
substantive rights, a plaintiff must identify a separate source of law that creates a
right to money damages for his claim to be within the court's 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) (en bane in relevant part));
Mitchell, 463 U.S. at 216. The test for determining whether a statute or regulation
can support jurisdiction in this 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); Fisher v. United States, 402F.3d1167, 1173-74 (Fed.
Cir. 2005); Contreras v. United States, 64 Fed. Cl. 583, 588-92 (2005).

        Plaintiff concedes that we lack subject-matter jurisdiction over his claims for
declaratory relief concerning the 1866 Civil Rights Act, the cited criminal code
provision, and any constitutional provisions other than the Contract Clause. See
Pl.'s Opp'n. This concession is warranted, as he has not identified any money-
mandating statute, regulation, or constitutional provision that would support our
jurisdiction. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995);
Marlin v. United States, 63 Fed.Cl. 475, 476 (2005). While equitable or declaratory
relief can sometimes be available in Tucker Act suits, it must be "an incident of and
collateral to" a money judgment. James v. Caldera, 159 F.3d 573, 580 (Fed. Cir.
1998) (quoting 28 U.S.C. § 1491(a)(2)).3

       Plaintiff insists, however, that the unspecified violations of his unidentified
rights may be entertained by our court under his sixth claim, which is based on the
Contract Clause of the United States Constitution. This clause does not mandate
the payment of money damages for its violation, and in any event is a restriction on
the actions of states, not the federal government. See U.S. Const. art. I, § 10, cl. 1;
Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 1577 (Fed. Cir. 1997);
McNeil v. United States, 78 Fed. Cl. 211, 225 (2007). Mister Griffith's theory,


3 Declaratory relief is also available in bid protests and cases concerning the tax-
exempt status of organizations. See 28 U.S.C. §§ 1491(b)(2), 1507.
                                         -4-
however, does not depend entirely on this clause, as he appears to be arguing that
by violating constitutional rights, the federal government thereby breaches a
contract. See Pl's Opp'n. But the Constitution cannot be considered an express or
implied-in-fact contract concerning which a breach action may be maintained in our
court. See Taylor v. United States, 113 Fed. Cl. 171, 173 (2013). Therefore, plaintiff
fails to identify any basis for our court to exercise jurisdiction over his claims,
whatever in fact they may be.

       One final matter to be addressed is plaintiffs application to proceed in forma
pauperis. The Court has learned that plaintiff has been found by other judges to be
subject to the so-called "three strikes" provision in 28 U.S.C. § 1915(g), which does
not allow us to grant in forma pauperis status to a prisoner who has had three or
more cases dismissed on the grounds that they were frivolous, malicious, or failed to
state a claim upon which relief may be granted. See Griffith v. Haworth, No. 8:11-
cv-2251, 2011 U.S. Dist. LEXIS 116494, at *I (M.D. Fla. Oct. 7, 2011). Plaintiff has
crossed this threshold. See id.; Griffith v. Wirdell, No. 8:06-CV-709, 2006 U.S. Dist.
LEXIS 80836 (M.D. Fla. Nov. 3, 2006); and Griffith v. Johns, No. 8:06-cv-691, 2006
U.S. Dist. LEXIS 22336 (M.D. Fla. Apr. 24, 2006). Therefore, plaintiffs application
to proceed in forma pauperis must be DENIED.

                                III. CONCLUSION

       For the reasons stated above, the Court GRANTS defendant's motion to
dismiss this case for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(I),
and DENIES plaintiffs application to proceed in forma pauperis. The Clerk is
directed to close the case.

IT IS SO ORDERED.




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