           Jfn tbe Wniteb          ~tates ~ourt          of jfeberal ~!aims
                                           No. 17-813

                                   (Filed: September 8, 2017)

                                  (NOT TO BE PUBLISHED)

 ************** ********************
                                                                                FILED
                            )                                                 SEP - B 2017
 FERNANDO MOISES MALDONADO, )
                            )                                                U.S. COURT OF
                                                                            FEDERAL CLAIMS
                Plaintiff,  )
                            )
      v.                    )
                            )
 UNITED STATES,             )
                            )
                Defendant.  )
                            )
 ************************* *********

       Fernando Maldonado, prose, Elmont, New York.

       Renee Alina Burbank, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With her on the
brief were Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Robe1t E.
Kirshman, Jr., Director, and Tara K. Hogan, Assistant Director, Commercial Litigation Branch,
Civil Division, United States Depa1tment of Justice, Washington, D.C.

                                   OPINION AND ORDER

LETTOW, Judge.

         Plaintiff, Fernando Maldonado, filed the present suit against the United States alleging
violations of various constitutional and statutory provisions by the New York State Division of
Human Rights (NYSDHR) arising out of its handling of an employment discrimination action
resolved unfavorably towards Mr. Maldonado. See Compl. at 1-2. 1 Mr. Maldonado seeks
declaratory and injunctive relief, as well as money damages in an unspecified amount. Compl. at
1. Mr. Maldonado's complaint contains assertions ofrights arising out of the Constitution's
Commerce Clause, Supremacy Clause, and Fifth Amendment Due Process Clause, as well as the
Declaratory Judgment Act and the Civil Rights Act of 1866. See Comp!. at 1; U.S. Const. ruts. I,
§ 8, cl. 3 & VI, § 1, cl. 2, amend. V; see also Declaratory Judgment Act,§§ 1-2, 48 Stat. 955,

       1
        Mr. Maldonado did not consecutively number the pages of his complaint, so page
references to the complaint are to the pa1t icular un-numbered page on which the cited reference
may be found .

                                                             7017 1450 DODD 1346 4094
currently codified as amended at 28 U.S.C. § 2201-02; Civil Rights Act of 1871, § 1, 17 Stat. 13,
cunently codified as amended at 42 U.S.C. § 1983. Mr. Maldonado also asserts claims under
unspecified provisions of New York state law, citing the supplemental jurisdiction provisions of
the Judicial Improvements Act of 1990, Pub. L. 101-650, § 310, 104 Stat. 5089, currently
codified at 28 U.S.C. § 1367.

        Mr. Maldonado alleges wrongdoing on the part of both the Equal Employment
Opportunity Commission (EEOC) and the NYSDHR, but appears to assert his claims only
against the NYSDHR, citing the disposition of a previous case he brought against the EEOC and
the NYSDHR in the United States District Comt for the Southern District of New York, in which
the court held that Mr. Maldonado's claims were barred by the doctrine of sovereign immunity
and the Eleventh Amendment, respectively. See Comp!. at 2-3; Maldonado v. Equal
Employment Opportunity Comm 'n, No. 15-cv-9685 (S.D.N.Y. Jan. 20, 2016). Mr. Maldonado
appears to take issue with the determination of the district court as to the NYSDHR's actions,
and argues that his claims against the NYSDHR are appropriate for disposition by this court.
Comp!. at 3.

        Pending before the court is the government's motion to dismiss Mr. Maldonado's
complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the
Court of Federal Claims ("RCFC") ("Def. 's Mot."), ECF No. 8, which motion is ready for
disposition.

                                STAND ARDS FOR DECISION

        When the jurisdiction of this court is contested, Mr. Maldonado, as plaintiff, bears the
burden of establishing jurisdiction by a preponderance of the evidence. See Trusted Integration,
Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing 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 plaintiff's
complaint and draw all reasonable inferences in favor of the plaintiff." See Trusted Integration,
659 F.3d at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). But, the
leniency afforded to a pro se plaintiff with respect to formalities does not relieve such a litigant
from satisfying jurisdictional requirements. See Kelley v. Secretary, US. Dept. of Labor, 812
F.2d 1378, 1380 (Fed. Cir. 1987).

        The Tucker Act provides this court 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 tort." 28 U.S.C. § 149l(a)(l)
(emphasis added). This court's jurisdiction extends only to cases in which the United States is
the defendant - states, state agencies, and state officials are not within the bounds of that
jurisdiction. See 28 U.S.C. § 149l(a)(l); See also United States v. Sherwood, 312 U.S. 584, 588
(1941) (ruling that, subject to the caveat that this comi'sjudicial power has since been enlarged
to authorize equitable relief in pmiicular instances, this court's "jurisdiction is confined to the
rendition of money judgments in suits brought for that relief against the United States ... , and if
the relief sought is against others than the United States the suit as to them must be ignored as


                                                 2
beyond the jurisdiction of the court."); Moore v. Public Defender's Office, 76 Fed. Cl. 617, 620
(2007) ("When a plaintiffs complaint names private parties, or local, county, or state agencies,
rather than federal agencies, this court has no jurisdiction to hear those allegations.").
Correlatively, the Tucker Act does not grant jurisdiction in this court to review the decisions of
other federal courts. See Trevino v. United States, 113 Fed. Cl. 204, 208 (2013) ("[T]his court
does not have jurisdiction over other federal courts or their employees.") (citing Joshua v. United
States, 17 F.3d 378, 380 (Fed. Cir. 1994)).

        Further, although 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), it
does not provide a plaintiff with substantive rights, United States v. Testan, 424 U.S. 392, 398
(1976). To perfect jurisdiction in this court, "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 part) (citing Mitchell, 463 U.S. at 216; Testan,
424 U.S. at 398). That is, the plaintiff must identify a source of substantive law that "can fairly
be interpreted as mandating compensation by the Federal Government 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)) (emphasis added) (additional citation omitted).

         "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));
see also Trevino, 113 Fed. Cl. at 207 ("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)).

                                           ANALYSIS

        Mr. Maldonado's complaint asse1is various claims against the New York State Division
of Human Rights. As its name suggests, the NYSDHR is not an agency of the federal
government, but is instead established and organized under the laws of the State ofNew York.
See N.Y. Exec. Law§ 293 (McKinney 2017) (establishing the NYSDHR). Because the Tucker
Act limits this court's jurisdiction to claims asse1ted "against the United States," see 28 U.S.C. §
1491(a)(l), this comi lacks jurisdiction to hear any claims, from whatever source derived, against
the NYSDHR, see Moore, 76 Fed. Cl. at 620. And, insofar as Mr. Maldonado asserts error by
the United States District Comt for the Southern District ofNew York as reviewable in this
court, that assertion is likewise unavailing. See Trevino, 113 Fed. Cl. at 208.

        Mr. Maldonado asserts claims for monetary relief under the U.S. Constitution's
Commerce and Supremacy Clauses, the Fifth Amendment Due Process Clause, and 42 U.S.C. §
1983. Fmiher, he claims an entitlement to equitable relief under the Declaratory Judgment Act.
Finally, he refers to unspecified state law claims for which he purports to invoke supplemental
jurisdiction. All of these claims are outside the scope of this comt's jurisdiction.




                                                 3
                                      A. Constitutional Claims

        Mr. Maldonado claims a right to money damages under the Commerce Clause,
Supremacy Clause, and Fifth Amendment Due Process Clause of the U.S. Constitution. These
constitutional provisions establish rights but do not require the payment of money for violations.
The relevant inquiry is whether the pmticular constitutional provision "explicitly [or] implicitly
obligate[s] the federal government to pay damages." United States v. Connolly, 716 F.2d 882,
887 (Fed. Cir. 1983) (en bane).

        The Commerce Clause provides that "[t]he Congress shall have Power ... To regulate
Commerce with foreign Nations, and mnong the several States, and with the Indian tribes," U.S.
Const. art. I,§ 8, cl. 3, but it cannot "fairly be interpreted" as mandating the payment of money.
Because the plain language of the Commerce Clause cmmot reasonably be interpreted as
mandating the payment of compensation to Mr. Maldonado, absent a pertinent, effectuating
federal statute, his Commerce Clause claims are outside this court's jurisdiction.

        The Supremacy Clause, U.S. Const. art. VI,§ 1, cl. 2, provides that "[t]his Constitution,
and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be supreme Law of
the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." Similarly to the Commerce Clause, the
Supremacy Clause does not provide a jurisdictional basis for suit in this court because it is not
money-mandating. See Trevino v. United States, 557 Fed. Appx. 995, 998 (Fed. Cir. 2014)
(holding that the Supremacy Clause does not mandate the payment of money) (citing Connolly,
716 F.2d at 887); Treece v. United States, 96 Fed. Cl. 226, 231 (2010) (citing Hanford v. United
States, 63 Fed. Cl. 111, 119 (2004)) (concluding that the Court of Federal Claims does not have
jurisdiction to hear a Supremacy Clause claim).

         Mr. Maldonado's claim under the Due Process Clause of the Fifth Amendment is also
unavailing. The Due Process Clause provides that "No person shall be ... deprived of life,
libe1ty, or property, without due process of law." U.S. Const. amend. V. It also is not money-
mandating. See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing
Carruth v. United States, 627 F.2d 1068, 1081 (Cl. Ct. 1980) (holding that the Fifth Amendment
Due Process Clause is not money-mandating); see also In re United States, 463 F.3d 1328, 1335
n. 5 (Fed. Cir. 2006) ("[B]ecause the Due Process Clause [of the Fifth Amendment] is not
money-mandating, it may not provide the basis for jurisdiction under the Tucker Act."). 2



       2
         Some prior decisions have appeared to construe the Fifth Amendment's Due Process
Clause as supporting Tucker Act jurisdiction "when a claim seeks the return of money paid to the
federal government, under the rubric of an illegal exaction." See Hephzibah v. United States,
No. 16-402, 2016 WL 4490575, at *4 n. 3 (Fed. Cl. 2016) (citingAerolineas Argentinas v.
United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996) (discussing illegal extraction claims
generally); Coleman v. United States, No. 13-431, 2014 WL 949984, at *3 (Fed. CL 2014)). But
regardless of whether illegal extraction claims are premised on the Fifth Amendment, Mr.
                                                4
                                          B. 42 USC.§ 1983

        Section 1983 provides a right of redress for deprivations of "any rights, privileges, or
immunities secured by the Constitution and laws [of the United States]," 42 U.S.C. § 1983, but
jurisdiction to adjudicate such claims rests solely with the district courts, see 28 U.S.C. §
 1343(a)(4) ("[T]he district courts shall have original jurisdiction... [t]o recover damages or to
secure equitable or other relief under any Act of Congress providing for the protection of civil
rights.") (emphasis added). It is well-settled that these provisions confer exclusive jurisdiction
on the district courts and thus bar this court from considering those claims. See Ajamian v.
United States, 609 Fed. Appx. 652, 654 (Fed. Cir. 2015) (per curiam) (Plaintiff"references 42
U.S.C. § 1983 ... but United States district courts have original jurisdiction over claims arising
under those statutes .... Because the Court of Federal Claims is not a district court of the United
States, ... it does not have jurisdiction to consider [these] claims.") (citations omitted) (internal
quotation marks and brackets omitted); see also Khalil v. United States,_ Fed. Cl._, 2017
WL 3276883, *2 (2017) ("[Section] 1983 does not confer jurisdiction on the Court of Federal
Claims over claims against the United States.") (citing Johnson v. United States, 135 F.3d 778
(Fed. Cir. 1998) (per curiam)). In short, Mr. Maldonado's§ 1983 claims are outside the
jurisdiction granted this court by the Tucker Act.

                                 C. Declaratory and Injunctive Relief

         Mr. Maldonado also seeks equitable relief under the Declaratory Judgment Act, 28
U.S.C. §§ 2201-02. A rule oflong standing, however, is that this court lacks the power to afford
general equitable relief of the type Mr. Maldonado apparently seeks. See United States v. King,
395 U.S. 1, 2-3 (1969) (citing United States v. Alire, 73 U.S. (6 Wall.) 573, 575 (1867); United
States v. Jones, 131U.S.1, 9 (1889); Glidden Co. v. Zdanok, 370 U.S. 530, 557 (1962)); see also
Halim v. United States, 106 Fed. Cl. 677, 684-85 (2012) (citing Nat'/ Air Traffic Controllers
Ass 'n v. United States, 160 F.3d 714, 716-17 (Fed. Cir. 1998)) ("This comi has never been
afforded the general authority to issue declaratory judgments or to grant injunctive relief.").
Indeed, "this court may only award equitable relief under certain statutorily defined
circumstances." Halim, 106 Fed. Cl. at 684; see also, e.g., 28 U.S.C. §§ 149l(b)(2), 1507.
Equitable relief, then, is the exception, not the rule, for the range of remedies this court may
grant. Because Mr. Maldonado has not pointed to any provision of law that affords the court the
ability to grant declaratory or injunctive relief in the circumstances he alleges, this court lacks
jurisdiction to consider those claims.

                                         D. State Law Claims

        Finally, Mr. Maldonado assetis that this court has jurisdiction over cetiain unspecified
New York state law claims pursuant to the supplemental jurisdictional provisions of28 U.S.C. §
 1367(b). This too is unavailing. Section 1367 provides for supplemental jurisdiction over
certain state law claims "in any civil action of which the district courts have original
jurisdiction." 28 U.S.C. §1367(b) (emphasis added). In addition to this limited applicability to


Maldonado's complaint cannot fairly be read as alleging any facts that would support such a
theory ofrecovery here.
                                                  5
district courts contained in the plain language of§ 1367, the Tucker Act's jurisdictional
provisions limits this court's jurisdiction to "any claim against the United States founded either
upon the Constitution, or any Act of Congress or any regulation of an executive depa1iment, 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. § 1491. As these provisions indicate,
"[c]laims founded on state law are ... outside the scope of the limited jurisdiction of the Court of
Federal Claims." Souders v. South Carolina Public Service Authority, 497 F.3d 1303, 1307
(Fed. Cir. 2007) (citing Mitchell, 463 U.S. at 215-18); see also Willis v. United States, 96 Fed.
Cl. 467, 471 (2011) (citing Mitchell, 463 U.S. at 215-18) ("[A] plain reading of the Tucker Act
precludes state claims ... , and the Supreme Court has interpreted 28 U.S.C. § 1491 to exclude
state law claims.").

       Ultimately, none of Mr. Maldonado's allegations are within this comi'sjurisdiction, and
the NYSDHR is not a proper defendant in this court. For this reason, the government's motion
to dismiss Mr. Maldonado's complaint is granted.

                                         CONCLUSION

    For the reasons stated, the government's motion to dismiss Mr. Maldonado's 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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