SEELY v. USA, No. 1:2015cv00786 - Document 10 (Fed. Cl. 2015)

Court Description: UNREPORTED MEMORANDUM OPINION AND FINAL ORDER, granting 6 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Signed by Judge Susan G. Braden. (dw1) Copy to parties.

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SEELY v. USA Doc. 10 Omfrffi$ffi&L llntbe @nftpD $tstes @mrt of Sfelersl @lsrms No. 15-786C Filed: November 23, 2015 NOT TO BE PUBLISHED FILED * Nov 2 3 20t5 +ri.*****r.*:t*:t **r! r!***r! * *******,t ********+** DEAN R. SEELY, U.S. COURT OF FEDEML CLAIMS Plaintiff, pro se, THE IINITED STATES, Defendant. ,r*rr*t **** {,** {(**** {.***** *** ***** **ri***** Dean R. Seefy, Mount Pl easant,UIah, pro se. * Aaron E. Woodward, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Govemment. MEMORANDUM OPINION AND FINAL ORDER BRADEN, I. "Izdge. RELEVANTFACTUALBACKGROUND.I On September 17,2002, Dean Seely pleaded guilty to one count of armed bank robbery in the United States District Court for the District of Utah and was sentenced to forty-one months in prison. 9/10/15 Gov't. Mot. App. A1; see also 18 U.S.C. $ 2113.2 The relevant facts were derived from Plaintiffs August 31,2015 Amended Complaint ("Am. Compl."). The facts also were derived from the Appendix to the Govemment's Motion to Dismiss Amended Complaint ("9/10/15 Gov't Mot App."). See Moyer v. United States,190 F.3d 1314, 1318 (Fed. Cir. 1999) ("Factfinding is proper when considering a motion to dismiss where the jurisdictional facts in the complaint. . . are challenged."). As such, consideration of the Appendix to the Govemment's September 10,2015 Motion To Dismiss is appropriate, because the documents contained therein provide the factual basis for whether the court has jurisdiction. ' 2 Section 21 13 of the 2l st Century Department of Justice Appropriations Authorization Act, in relevant paft, provides: Whoever, by force or violence, or by intimidation, takes or attempts to take from the person or presence of another . . . [s]hall be fined under this title or imprisoned not more than twenty years, or both" and that anyone who "assaults any person, or puts in jeopardy the life ofany person by the use of dangerous weapon or device, Dockets.Justia.com on August 26,2003, Mr. Seely also pled guilty to one count of sexual exploitation of children in the United States District Court for the District of Utah, and was sentenced to 160 months inprison. 9/10/15 Gov't. Mot. App. A7; see also 18 U.S.C. $ 2551.1 il. PROCEDURALHISTORY. a complaint in the united states court of Federal Claims. The July 27 ,2015 Complaint alleges that the United States District Court for the District of Utah was an "improper venue," because that court is "not a true United States court, on July 27,2015, Mr. Seely (,.Plaintiff') filed 'ordained and established' with the 'judicial power' of the United States." Compl. flfl 6-7. The July 27,2015 Complaint also alleges that the Government violated Plaintiffs rights under the Fourth, Fifth, Sixth, seventh, Eighth, and Ninth Amendments to the United states constitution. Compl. fl'lf 7-8. On August 17,2015, the Govemment filed a Motion To Dismiss ("8lI7ll5 Gov't Mot."), pursuant to Rules 12(b)(1) and 12(bX6) ofthe Rules ofthe United States Court ofFederal Claims f.RCFC). On August 31,2015, Plaintiff filed a Motion For Leave To Amend Complaint and his Amended complaint was attached. The August 31, 2015 Amended complaint incorporated paragraphs l-5 ofthe July 27, 2015 Complaint and amended paragraphs 6-18 ofthe July 27,2015 Complaint. The August 31,2015 Amended Complaint, however, removed the Fourth, Sixth, Seventh, Eighth, and Ninth Amendment claims. In sum, the August 31, 2015 Amended Complaint alleges that: 1) because the United States District Court for the District of Utah is "not a true United States court," pursuant to Article III of the Constitution, Plaintiff s convictions by an "unqualified and defective" grand jury violated the shall be fined under this title or imprisoned not more than twenty-five years, or both. 18 U.S.C. $ 2113. 3 Section 225 1 of the Protect Our Children Act Of 2008, in relevant part, provides: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who transports any minor in or affecting interstate or foreign commerce . . . of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose ofproducing any visual depiction ofsuch conduct or for the purpose of producing any visual depiction of such conduct . . . shall be fined under this title and imprisoned not less than 15 years nor more than 30 years. 18 U.S.C. S 2251. Fifth Amendmenta of the United States Constitution and seeks $72,000,000; 2) Plaintiffs rights under 28 U.S.C. $ 1861s were violated; and 3) unnamed agencies and departments of the United States committed fraud by failing to respond to Plaintiffs inquiries about the legal status of the United States District Court for the District of Utah. Am. Compl. flfl 6, 13-16. On September 2, 2015, the United States Court of Federal Claims granted Plaintiff s Motion For Leave To Amend Complaint. On September 10, 2015, the Govemment submitted a Motion To Dismiss The Amended Complaint ("9/10/15 Gov't Mot."). That same day, the Govemment also filed an Appendix to its Motion To Dismiss The Amended Complaint. On October 6, 2015,the Govemment's September 10, 2015 Motion was filed by leave of the undersigned judge. Plaintiff did not file a Resoonse to the Government's September 10, 2015 Motion To Dismiss. TL DISCUSSION. A. Jurisdiction. The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. $ 1491, "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 tort." 28U.S.C. $ 1a91(a)(1). The Tucker Act, however, is "ajurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal . Claimsl whenever the substantive right exists." UnitedStqtesv. Testan,424U.5.392,398 (1976). To pursue a substantive right under the Tucker Act, a plaintiff must identifu and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]uisdiction under the Tucker Act requires the litigant to identiff a substantive right for money damages against the United States separate from the Tucker Act[.]"); see also Fisher v. United States, 402 F.3d 1167 , 1172 (Fed. Cir. 2005) (en banc) ("The TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidenti$aseparate source of substantive law that creates the right to money damages. . . . [T]hat source must be 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substaative law upon which he relies "can fairly be interpreted as mandating compensation by the Federal 4 U.S. CONST. amend. V, in relevant part, provides, 'No person shall be held to answer for or otherwise infamous crime, unless on a presentment or indictment of a grand jury[.]" U.S. CONST. amend. V. a capital, 5 Section 1861 ofthe Jury Selection and Service Act of 1968 provides, "[A]ll litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community[.]" 28 U.S.C. $ 1861. Govemment[.]" Testan, 424 U.S. at 400. And, a plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put in question . . . . [the plaintiffl bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence."). B, Standard Of Review For Pro .Se Litigants. Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (1972) (holding that pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by lawyers"). Courts traditionally examine the record "to see if la pro sef plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. Ct. 456, 468 (1969). Nevertheless, although the court may excuse ambiguities in a pro se plaintiffs complaint, the court "does not excuse [a complaint's] failures." Henke v. United States,60F.3d 795,799 (Fed. Cir. 1995). C. Standards For Motion To Dismiss. 1. Under RCFC r2@Xl). A challenge to the United States Court of Federal Claims' "general power to adjudicate in specific areas of substantive law . is properly raised by a [Rule] 12(bX1) motion[.]" Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a paxty may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]"). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court "must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor ofthe plaintiff." Trusted Integration, Inc.v. United States,659 F.3d 1159, 1163 (Fed. Cir. 2011). 2. UnderRCFC 12(bX6). A challenge to the United States Court ofFederal Claims' "[ability] to exercise its general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(bX6) motion[.]" Palmer,168 F.3d at l3l3;' see alsoRCFC 12(bX6) C'Every defense to a claim for relief in any pleading must be assefted in the responsive pleading . . . . But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted[.]"). When considering whether to dismiss an action for failure to state a claim, the court must "a claim has been stated adequately" and then whether "it may be supported by [a] showing [ofi any set of facts consistent with the allegations in the complaint Bell Atl. Corp. v. Twombl/, 550 U.S. 544, 563 (2007). The plaintiff s factual allegations must be substantial enough to raise the right to relief "above the speculative level." Id. at 555. The court must accept all factual allegations in the complaint as true and make all reasonable inferences in favor ofthe olaintiff. 1d. assess whether ." D. The Government's September 10,2015 Motion To Dismiss The Amended Complaint. 1 The Government's Argument. The Govemment argues that the August 31,2015 Amended Complaint does not allege a substantivebasisforjurisdictionandcitestotheTuckerActonlynominally.9/10/15Gov'tMot. at 5. The Amended Complaint requires the court to dismiss the claim because the United States Court of Federal Claims does not have jurisdiction to adjudicate criminal actions or appeals from a United States District Court's rulings. 9/10i15 Gov't Mot. at 5-6. Finally, the Amended Complaint should be dismissed, because the Fifth Amendment is not money-mandating. 9/10/15 Gov't Mot. at 6. 2, The Court's Resolution. First, with respect to the Amended Complaint's claim that Plaintiff s Fifth Amendment right to a grandjury was violated, the Grand Jury Clause ofthe Fifth Amendment does not mandate money damages. See Gahagan v. United States,72 Fed. Cl. 157, 160 (2006) ("The Fifth Amendment to the United States Constitution is recognized as specifically allowing money damages in two circumstances: (1) the taking ofprivate property for public use; and (2) due process violations resulting in an illegal exaction [.]"). The court, however, does not have jurisdiction to adjudicate Plaintiff s Grand Jury Clause claim. Second, the court does not have jurisdiction to adjudicate the Amended Complaint's claim that the Govemment violated 28 U.S.C. $ 1861. Section 1861 of the United States Code provides that "all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community." 28 U.S.C. $ 1861. Again, there is no substartive right for money damages in Section 1861, even if the Government violates the statute. Third, Article III, clause I of the United States Constitution provides, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It is undisputed that Utah has been fully admitted into the Union as a state since 1896. See Utah Diy. of State Lands v. {1S,482 U.S. 193, 199-200 (1987) ("The Utah Enabling Act of July 16, 1894, provided that Utah was 'to be admitted into the Union on an equal footing with the original States."'). 28 U.S.C. g 133(a) delegates authority to the President ofthe United States of America "to appoint, by and with the advice and consent of the Senate, district judges for . . . Utah." 28 U.S.C. $ 133(a). Given that Utah is an admitted state and given the President's authority to appoint federal district judges in Utah, the United States District Court for the District of Utah is a valid Article III court ofthe United States. Finally, a claim must "reasonably plead the particularities ofthe charge to comply with the requirements of [RCFC] 9(b)."6 BMY Combat Sys. v. (lnited States,26 Cl. Ct. 846, 850 (1992). The Amended Complaint, however, "do[es] not specify the specific actors" and is based on aa " RCFC 9(b), in relevant part, provides, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." RCFC 9(b). enoneous interpretation of the legal status claim for fraud must be dismissed. IV. ofa United States District Court. .Id. Therefore, the CONCLUSION. For the these reasons, the Govemment's August l7,2015 Motion To Dismiss is granted. See RCFC l2OXl). The Clerk is directed to enter judgnent and dismiss the August 31, 2015 Amended Complaint. IT IS SO ORDERED. BRADEN Judge

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