                3Jn tbe Wniteb ~tates
                                         0 ~GINAL
                                           <!Court of eberal <!Claitns
                                                                 jf
                                            No. 18-382C

                                        (Filed: June 15, 2018)
                                                                                     FILED
                                      (NOT TO BE PUBLISHED)
                                                                                   JUN 1 5 2018
 **********************************                                              U.S. COURT OF
                                                )                               FEDERAL CLAIMS
 DEBORAH BURNS,                                 )
                                                )
                        Plain tiff,             )
                                                )
           v.                                   )
                                                )
 UNITED STATES,                                 )
                                                )
                        Defendant.              )
                                                )
 **********************************

       Deborah Burns, prose, Houston, Texas.

        Adam E. Lyons, 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. Readier, Acting Assistant Attorney General, Civil Division, Robe1t E. Kirshman, Jr.,
Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

                                       OPINION AND ORDER

LETTOW, Judge.

         Plaintiff, Deborah Burns, challenges decisions made by the United States District Court
for the Eastern District of Wisconsin in a criminal case against her and by the United States
Supreme Court in denying a writ of certiorari. See Compl. at 2, 4, 10, 15. 1 Ms. Burns brings
claims of loss of libe1ty, false imprisonment, and injury from forcibly-administered tuberculosis
vaccinations. Comp!. at 2-3. 2 She attached to her complaint documents concerning federal
regulations of chemicals and prior decisions of other courts. Comp!. at 4-21 . Ms. Burns seeks
relief in the form of "reasonable housing of choice," $200,000,000 as compensation for 15 years
of alleged false imprisonment, and $250,000 for each instance in which she was allegedly
administered the tuberculosis vaccine without her consent. Comp!. at 3. Pending before the

       1
        Because the complaint is inconsistently paginated, citation will be to the sequential
pagination rather than to the hand-written page numbers.

       2
        See Tuberculosis (I'B), https://www.cdc.gov/tb/topic/basics/vaccines.htm (last visited
June 1, 20 18) (identifying tuberculosis vaccine).

                                                                      7017 1450 DODO 1346 2168
court is the government's motion to dismiss for lack of subject matter jurisdiction and for failure
to state a claim pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of the Cou1t of Federal
Claims ("RCFC"). See generally Def. 's Mot. to Dismiss ("Def. 's Mot.").

                                 STANDARDS FOR DECISION

         In any action, the plaintiff has the burden of establishing jurisdiction. Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). When ruling on a motion to
dismiss for lack of jurisdiction, the court must "accept as true all undisputed facts asserted in the
plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff." Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The leniency afforded a
prose plaintiff with respect to formalities does not relieve prose litigants of their obligation to
satisfy jurisdictional requirements. Kelley v. Secretary, United States Dep't ofLabor, 812 F.2d
1378, 1380 (Fed. Cir. 1987).

        In ruling on a motion to dismiss for failure to state a claim upon which relief can be
granted, the comt "must accept all well-pleaded factual allegations as true and draw all
reasonable inferences in [plaintiffj's favor." Boyle v. United States, 200 F.3d 1369, 1372 (Fed.
Cir. 2000); see also Pucciariello v. United States, 116 Fed. Cl. 390, 400 (2014). But the plaintiff
nonetheless must provide "factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell At/. Corp. v. Twombly, 550 U.S. 544, 556 (2007)); see also A & D Auto Sales,
Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014). In this connection, "[a] motion to
dismiss ... for failure to state a claim upon which relief can be granted is appropriate when the
facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v. United States,
295 F.3d 1252, 1257 (Fed. Cir. 2002).

         "If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a
matter of law." Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74
U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985));
Trevino v. United States, 113 Fed. Cl. 204, 207 (2013) ("Where the court has not been granted
jurisdiction to hear a claim, the case must be dismissed.") (citing Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006)); see also RCFC Rule 12(h)(3) ("If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.") (emphasis added).

                                            ANALYSIS

        The Tucker Act provides this comt with jurisdiction over "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 tott." 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, see 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). Rather, "a
plaintiff must identify a separate source of substantive law that creates the right to money
damages" to establish jurisdiction. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(en bane in relevant part) (citing Mitchell, 463 U.S. at 216; Tes/an, 424 U.S. at 398). That source
of substantive law must be amenable to being "fairly ... interpreted as mandating compensation
                                                  2
by the [f]ederal [g]overnment for the damage sustained." Testan, 424 U.S. at 400 (quoting
Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Cl. Ct. 1967)) (additional citation
omitted). Because the Tucker Act does not grant this court jurisdiction to review the decisions of
other courts, see Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994), this court cannot
hear Ms. Bums's claims concerning decisions made by the United States District Court for the
Eastern District of Wisconsin and the United States Supreme Court. Thus, to the extent she
seeks review of these decisions, her claims must be dismissed.

        Ms. Burns's allegations related to loss of liberty and false imprisonment could be deemed
to present claims under the Due Process Clauses of the Fifth and Fourteenth Amendments. See
Humphrey v. United States, 52 Fed. Cl. 593, 598 (2002). "[T]he Due Process Clauses of the
Fifth and Fourteenth Amendments ... [are not] a sufficient basis for jurisdiction because they do
not mandate payment of money by the government." LeB/anc v. United States, 50 F.3d 1025,
1028 (Fed. Cir. 1995). Consequently, these claims are outside this court's jurisdiction. Smith v.
United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("The law is well settled that the Due
Process Clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of
money and thus do not provide a cause of action under the Tucker Act.").

        The court's jurisdiction does not extend to suits against private individuals, even where
those individuals are officers or employees of the government. See United States v. Sherwood,
312 U.S. 584, 588 (1941); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) (explaining
that claims against government officials in their personal capacities cannot be maintained
because "the only proper defendant for any matter before this comt is the United States, not its
officers, nor any other individual"). Thus, the court lacks jurisdiction over any claims Ms. Burns
intends to assert against individual parties. See Sherwood, 312 U.S. at 588; Stephenson, 58 Fed.
Cl. at 190.

        Ms. Burns likewise fails to properly allege a claim of loss of liberty and false
imprisonment under 28 U.S.C. § 1495. The court does have ')urisdiction to render judgment
upon any claim for damages by any person unjustly convicted of an offense against the United
States and imprisoned." 28 U.S.C. § 1495. In that regard, a plaintiff must prove:

        (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 of
       the comt setting aside or reversing such conviction, or that he has been pardoned
       upon the stated ground of innocence 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. § 2513(a). In practice, "[w]hen [an unjust conviction] suit is brought and no showing
is made that the plaintiff has obtained the requisite certificate of innocence by the comt, or
pardon, this [c]omt will not entertain the claim." Humphrey v. United States, 52 Fed. Cl. 593,
598 (2002). This comt can only grant relief for an unjust conviction when the plaintiffs
conviction "has been reversed or set aside on the ground that he is not guilty of the offense of

                                                3
which he was convicted, or on new trial or rehearing he was found not guilty of such offense, ...
or that he has been pardoned upon the stated ground of innocence and unjust conviction." 28
U.S.C. § 2513(a)(l); see also Veltmann v. United States, 39 Fed. Cl. 426, 427 (1997). As Ms.
Burns has not provided any evidence that would plausibly indicate she has a viable claim under
Section 1495, her attempt to raise a claim under Section 1495 is unavailing.

        Ms. Burns's assertions pertaining to an alleged "vaccine injury [resulting from] forced
[tuberculosis] injection," see Comp!. at 3, could be construed as asse1ting tort claims arising out
ofnonconsensual medical procedures, see, e.g.,Abdullahi v. Pfizer, Inc., 562F.3d163, 174-75
(2d Cir. 2009); Estate ofAlvarez v. Johns Hopkins Univ., 275 F. Supp. 3d 670 (D. Md. 2017).
"The Tucker Act specifically excludes tort claims from the jurisdiction of this court." Phang v.
United States, 87 Fed. Cl. 321, 326 (2009) aff'd, 388 Fed. Appx. 961 (Fed. Cir. 2010); 28 U.S.C.
§ 149l(a)(l). Thus construed, Ms. Burns's claims are outside this court's jurisdiction, and to the
extent she seeks to raise claims relating to alleged tortious activity by the United States, these
claims must be dismissed. See, e.g., Phang, 87 Fed. Cl. at 326.

        Although the court has jurisdiction over vaccine injury claims, see National Childhood
Vaccine Injury Actofl986, Pub. L. No. 99-660, § 311, 100 Stat. 3743, 3755 (1986) (codified, as
amended, at 42 U.S.C. §§ 300aa-l to -34) ("Vaccine Act"), a Vaccine Act petitioner must
sufficiently allege and establish a vaccine injury for which compensation is permitted, see 42
U.S.C. §§ 300aa-l l (c)(l), 300aa-13(a)(l); Adams v. Secretary of the Dep 't of Health & Human
Servs., 76 Fed. Cl. 23, 35 (2007). A Vaccine Act petitioner must identify the vaccine and
consequential harms via affidavits and relevant medical records. 42 U.S.C. §§ 300aa-l l(a), (c);
RCFC App. B, Rules 2(c)(l)(A)(ii), 2(c)(2)(A). Ms. Burns alleges that the tuberculosis
vaccinations she was administered "caused skin lesion[s] in the form of [tuberculosis]," but does
not provide any further facts or supporting documents relating to the vaccine injury she alleges.
Comp!. at 3. Ms. Burns's bare assertion of harm resulting from tuberculosis vaccinations fails to
state a Vaccine Act claim upon which relief may be granted, and accordingly must be dismissed.
See Def. Mot. at 4-5.

                                         CONCLUSION

    For the reasons stated, the government's motion to dismiss plaintiffs complaint is
GRANTED. The clerk shall enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.



                                                     Charles F. Lettow
                                                     Judge




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