FLIPPIN v. USA, No. 1:2019mc01626 - Document 7 (Fed. Cl. 2019)
Court Description: REPORTED OPINION AND ORDER DENYING 1 Rule 27 Verified Petition, filed by Ameer Flippin. Signed by Chief Judge Margaret M. Sweeney. (ac7) Service on parties made. (Certified Mail #7018 2290 0000 5183 8815)
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FLIPPIN v. USA Doc. 7 IIn tbt. @nitr! $ituitts @ourt of ft[ers[ @Iaims No. l9-l626MC (Filed: December 10, 2019) ***,t *'t * .+ :* + * :t :t ** + ***** ,1 *** ++ * ,t ,t * ++ * + *+ AMEER FLIPPIN, Petitioner, RCFC 27(a); Petition to Perpetuate Testimony; Subj ect-Matter Jurisdiction; Pro Se THE LINITED STATES, ****r.rl,t * *+ * *:t*,1:i,t Defendant. rt *1.* *** N!** ****r.* * * '1. * * Ameer Flippin, Washington, DC, prs-sg. Zacharv J. Sullivan, United States Department ofJustice, washington, DC, for defendant. OPINION AND ORDER SWEENEY, Chief Judge Petitioner Ameer Flippen, proceeding p39-9e, filed a petition on October l'1a?019' pursuant to Rule 27 of the Rules of the United States Court of Federal Claims ("RCFC"), along with an application to proceed in forma pauperis. Petitioner seeks to conduct a deposition to oithe United States Attomey's Office for the District of perpetuate -Columbia the testimony of a member to expose certain sealed executive orders that pertain to the 2016 presidential election in which petitioner himself participated as a write-in candidate. Petitioner's motion to proceed in forma pauperis is granted; however, because the court does not have subject-matter jurisdiction ou", pitition".'r prospective claim, his petition under RCFC 27(a) does not describe a matter cognizable in this court and is therefore denied. I. BACKGROUND Petitioner represents that he is "a prospective ptaintiff in an action intended to be commenced in the United States Federal Claims Coun." Pet. 'lf L He asserts lhat he is unable to prosecute this action because the federal govemment "has Orders ofProtection under seal preventing the release of information related to the 2016 Presidential Elections" in which petitioner was a write-in candidate and "where concetns [arose] related to National Secudty . . . ." fa. 12. Petitioner asserts several bases as the "subject matter" ofhis prospective complaint, including: (l ) "the unauthorized practice of law by several individuals," (2) civil rights violations under 42 u.s.c. 0 1983, (3) violations of the Federal Tort claims Act ('TTCA'), (4) money laundering, (5) Racketeer Influenced and Comlpt Organizations C'RICO) Act violations, and (6) violations of the Sherman Antitrust Act. Id. fl 3. Dockets.Justia.com Although the petition is not a model of clarity, it appears that petitioner argues that the illegal and tortious actions he describes are connected to the status ofunspecifred campaign funds involved with the 2016 presidential election. Id. Therefore, the actual subject matter of the prospective suit appears to be a claim related to those campaign funds. See id p4gqirn. Petitioner asserts "liability concems where political campaign funds are believed to have been taken" by the fedcral govcmment via cxecutive ordcr, id. fl 3, and through this action he expccts to elicit information "related to possible Executive Branch Orders targeting [petitioner] to prevent disclosure of information needed for causes ofaction in forthcoming litigation related to missing campaign funds from 2015 to present and intemet business related transactions," id. fl 6 (emphasis omitted). II. PROCEDURAL HISTORY Petitioner filed the instant action on October 17 ,2019. Defendant responded on December 9, 20 I 9. Deeming additional briefing unnecessary, the court is prepared to rule on the petition. III, LEGAL STANDARDS A. RCFC27 RCFC 27 permits prospective plaintiffs to petition the court to order depositions to perpetuate testimony in certain circumstances. The testimony the petitioner seeks to perpetuate must relate to a "matter cognizable in the court," and the petition must show that the petitioner expects to be a party to an action cognizable in the court but cannot presently bring it or cause it to be brought; (A) (B) the subject matter of the expected action and the petitioner's interest; (C) the facts the petitioner wants to establish by the proposed testimony reasons to perpetuate it; and the ...and (E) the name, address, and expected substance ofthe testimony ofeach deponent. RCFC 27(aX1); accord Trice v. United States, 19 F. App'x 853, 854 (Fed. Cir. 2001) (unpublished order) (agreeing that a petitioner must provide enough information for the court to determine that it possesses subject-matter jurisdiction over the prospective claim). "lf satisfied that perpetuating the testimony may prevent a failure or delay ofjustice, the court must issue an order that" describes who is to be deposed, the subject matter ofthe deposition, and the form of the deposition. RCFC 27(a)(3). B. Subject-Matter Jurisdiction Whether the court has iurisdiction to decide the merits of a case is a threshold matter. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that ofannouncing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall) 506, 514 (1868). Either party, or the court sua sponte, may challenge the existence of subject-matter jurisdiction at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). The ability of the United States Court of Federal Claims ("Court of Federal Claims") to entertain suits against the United States is limited. "The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood,3l2 U.S' 584, 586 (1941). The waiver of immunity "cannot be implied but must be unequivocally expressed." United States v. Kine, 395 U.S. l, 4 (1969). The Tucker Act, the principal statute goveming the jurisdiction of this court, waives sovereign immunity for claims against the United States, not sounding in torl, that are founded upon the United States Constitution, a federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C. $ 1491(a)(1) (2018). However, the Tucker Act is merely ajurisdictional statute and "does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424U.5.392,398 (1976). Instead, the substantive right must appear in another soufce of law, such as a "money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States." Loveladies Harbor" Inc. v. United States,27 F.3d 1545, 1554(Fed.cir. 1994) (enbanc). "ln determining jurisdiction, a court must accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable inferences in favor ofthe plaintiff." Trusted Intesration. Inc. v. United States, 659 F.3d I 159, 1 163 (Fed. Cir. 201 1). However, plaintiffs proceeding pro se are not excused from meeting basic jurisdictional requirements, see Henke v. united states, 60 F.3d 795,'199 (Fed. Cir. 1995), even though the court holds their complaints to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 u.s. 5 19, 520 (1972). In other words, a plaintilf (even one proceeding p1q re) must establish, by a preponderance ofthe evidence, that the court possesses subject-matter jurisdiction. See McNutt v. Gen. Motors Acceptance Corp.,298 U.S. 178, 189 (1936); Trusted Inteqration, 659 F.3d at 1163. IV. ANALYSIS Petitioner alleges that the testimony he seeks to perpetuate will (1) establish that a member of the United States Attomey's Office for the District of Columbia was "possibly . . . working with foreign intelligence agencies and u'as possibly dispatched as an undetcover attorney in the United States to prevent lpetitioner] from succeeding on related matters associated with the forthcoming litigation on missing 2016 Presidential Campaien Funds. redirected e-commerce transactions. seized ACH transfers. and RICO-related activities," Pet. n a@); (2) establish a connection between missing campaign funds and the federal govemment, unspecified foreign govemments, and petitioner's own "persistent run-ins with law enfbrcement," and that without such infbrmation, "it is impossible for most Americans to maintain iieedom given the increased global political environment," j5! fl 4(b); and (3) required "to help neutralize the existing political environment associated with the White House and Congress," id. Petitioner lists seven individuals as possible adverse parties but appears to request the oral deposition ofonly one individual, the aforementioned member of the United States Attorney's Office for the District of Columbia that petitioner asserts may be acting for a foreign power. Id. 'llU 5-6. As the court explains below, petitioner f'ails to establish that the prospective claims fall within the subject-matter jurisdiction of this court. A. only claims Against the united states, Not Individuals, Are cognizable in This court As an initial matter, petitioner is seeking to perpetuate testimony to support claims against individuals, not the United States. However, it is well settled that the United States is the only proper defendant in the Court ofFederal Claims. See 28 U.S.C' $ 1a91(a)(1) (providing that the Court ofFederal Claims has jurisdiction over claims against the United States); RCFC l0(a) (requiring that the United States be designated as the defendant in the Court of Federal Claims); Brown v. United States, I 05 F.3d 621, 624 (Fed. Cir. I 997) ("The Tucker Act grants the Court ofFederal Claims jurisdiction over suits against the United States. not against individual fbderal officials."); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) ("[T]he only proper defendant for any matter before this court is the United States, not its officers, nor any other individual."). Indeed, the jurisdiction ofthe Court ofFederal Claims "is conflned to the rendition of money judgments in suits brought for that relief against the United States, . . . and ifthe reliefsought is against others than the United States, the suit as to them must be ignored as beyond the jurisdiction of the court." Sherwood,3l2 U.S. at 588. Accordingly, the court lacks jurisdiction to enterlain petitioner's prospective claims. However, the failure to identify the United States as the prospective defendant is not the only jurisdictional defect with the prospective claims. B. Allegations of Unauthorized Practice of Law Are Not Cognizable in This court Petitioner's first prospective claim is the "unauthorized practice of law by several individuals . . . " Id.fl 3. Given the nature ofother accusations in the petition, it is possible to construe "unauthorized practice of law" to mean that petitioner accuses opposing counselrepresenting the federal government in a related case before the United States District Court for the District of Columbia--of practicing law to covertly serve the interests of a foreign intelligence organization. Such conduct is criminal in nature and beyond the subject-matter jurisdiction ofthis cou(. Joshuav. United States,\7 F.3d378,379 (Fed. Cir. 1994); Kania v. united srates, 650F.2d264,268 (Cr. CI. 1981). Additionally, to the extent that petitioner contends that opposing counsel in the related case is engaged in the unauthorized practice of law as the term is understood in the legal community, the court lacks subject-matter jurisdiction to entertain his claim' Black's Law Dictionarv defines "unauthorized practice of law" as "[t]he practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction " Practice ofLaw, Black's Law Dictionarv (l lth ed. 2019). This court does not sit inreviewof the general qualifications ofattorneys at large to practice in other courts; such matters are the concem ofthe judges befbre whom those attorneys appear and the attomey discipline system of the bar that licenses them. Cf. Joshua, 17 F.3d at 380 ("[T]he Court ofFederal Claims does not have jurisdiction to review the decisions ofdistrict courts or the clerks of district courts relating to proceedings belbre those courts."). Ifpetitioner asserts that an opposing counsel in a matter before another court is engaged in the unauthorized practice of law, he should bring his contention before the presiding judge where he faces that adversary' See' 9&, D D'C. LCrR 57.27 (providing procedures for attorney discipline in the United States District Court for the District of columbia). Alternatively, petitioner may lodge a complaint with the appropriate oversight body oithe state or territory that licensed the subject attomey to practice. Moreover, as with petitioner's other prospective claims, a claim ofunauthorized practice of law does not invoke a money-mandating source of law. Consequently, it cannot form the basis for a suit under the Tucker Act. C. Alleged violations of Petitioner's civil Rights Are Not Cognizable in This court Petitioner next mentions unspecified "civil rights violations" under 42 U.S.C. $ 1983, Pet. tf 3, but does not articulate any facts as to the nature ofthese violations. Petitioner also asserts "persistent run-ins with law enforcement," id. !l 4(b), but does not identifr the nature of these "run-ins" or any injuries resulting from them. Regardless, the court does not possess subj ect-matter jurisdiction over cases involving civil rights violations. See Johnson v. Uniied Staies, 135 F.3d778 (Fed. Cir. 1998) (unpublished table decision) ("lt is well established . . . that $ 1983 does not confer j urisdiction on the Court of Federal Claims over claims against the United States."); Blassineame v. United States, 33 Fed. Cl. 504, 505 (1995) ("Section 1983 is not a j urisdiction-granting statute. District courts are given jurisdiction to hear claims for damages lbr violation of that provision . . . . Such an action cannot be sustained here, however, because this court has not been given an equivalent jurisdiction."), afl d, 73 F.3d 379 (Fed. Cir. I 995). Because the court lacks subject-matter jurisdiction over such civil rights violations, this prospective claim is not cognizable in this court. D. Violations of the Federal Tort Claims Act Are Not Cognizable in This Court Petitioner next identifies the FTCA as a basis for his prospective suit. To the extent that petitioner could bring a suit under the FTCA against the parties he names in their individual capacities, he could not do so in the Court of Federal Claims; such cases must be brought tn I'ederal district court: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, ibr money damages . . . for injury or loss ofproperty, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Govemment while acting within the scope of his office or employment.... 28 U.S.C. $ 1346(bX1). "The Cou( of Federal Claims is not a district coun of the United States." Ledford v. Unired States ,297 F .3d 1378, 1382 (Fed. Cir. 2002). Further, the primary jurisdictional statute ofthis court, the Tucker Act, emphatically excludes torts. 28 U.S.C. $ Because the court Iacks subject-matter jurisdiction over FTCA claims, petitioner's prospective claim is not cognizable in this court. lagl(a)(l). E. Violations of the Criminal Statutes Are Not Cognizable in This Court Petitioner also asserts the intent to raise claims ofmoney laundering, RICO Act violations, and conspiracy or service with a foreign intelligence service. These claims are criminal in nature. As noted above, this court lacks subject-matter j urisdiction over criminal mafters. Thus, such claims are not cognizable in this court. F, Violations of the Sherman Antitrust Act Are Not Cognizable in This Court Petitioner next identifies a prospective claim under the Sherman Antitrust Act. As with the other prospective claims, the Court ofFederal Claims lacks jurisdiction over matters arising from the Sherman Antitrust Act because such actions are committed to the district couts by the statute's own terms. See l5 U.S.C. $ 4 (2018) ("The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1 to 7 of this title[.]"); *2 (Fed. Cl. Aug.28' see also Kabando v. United States, No. l4-562C,2014 wL 4251548, at 2014) ("The Court does not have jurisdiction over claims arising under the Sherman Antitrust Act."), aff d, No. 2015-5018 (Fed. Cir. Jan.21,2015) (order granting motion for summzuy affrrmance); Huflbrd v. United States, 87 Fed. CI. 696,702 (2009) (holding that the Court of Federal Claims lacks jurisdiction over violations ofthe Sherman Antitrust Act). Because the court lacks subj ect-matter jurisdiction over claims arising from the Sherman Antitrust Act, such claims are not cognizable in this court. G. Claims to Unspecified Campaign Funds Are Not Cognizable in This Courl Finally, although not clearly articulated, the apparent goal ofthe instant petition is to obtain testimony for aiuit involving petitioner's interest in "campaign funds" associated with the 2016 presidential election. Petitioner makes no representations as to the source or rightful owner ofthe campaign funds but asserts a "liability concem" in the funds and additional concems related to national security. Pet. fl 3. Petitioner provides no connection between the alleged executive orders, the campaign funds, and a money-mandating source of law; instead, petitioner cites only vague concems and asserts no ownership interest in the campaign funds. Petitioner's asserted concems are not based on any contract with the United States, or on any constitutional provision, statute, or regulation that could be fairly construed as mandating compensation by the iederal govemrnent. Additionally, there is no allegation of an illegal exaction by the federal govemment. Therefore, petitioner's concems regarding the campaign funds cannot reasonably be construed to invoke a cause of action cognizable in this court' V. PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS Having determined that it lacks jurisdiction to entertain petitioner's prospective claims, the court turns to petitioner's application to proceed in forma pauperis. To proceed with a civil action in this court, a plaintifTmust either pay $400 in fees-a $350 filing fee plus a $50 administrative fee,--or request authorization to proceed without payment offees by submitting a signed application to proceed in forma pauperis.r See 28 U.S'C. S 1915; see also Waltner v. United States, 93 Fed. Cl. 139, 141 n.2 (2010) (concluding that 28 U.S.C. $ I 91 5(a)( 1) applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that (1) lists all oftheir assets, (2) declares that they are unable to pay the fees, and (3) states the nature ofthe action and their beliefthat they are entitled to redress. 28 U.S.C. $ l9l5(a)(1). Evaluation of a plaintiff s ability to pay is "left to the discretion ofthe presiding judge, based on the information submitted by the plaintiff." Alston-Bullock v. United States, 122 Fed. Cl.38, 45 (2015). Petitioner has fulfilled all three requirements of28 U.S.C. $ 1915(aX1), and the court is satisfied that he is unable to pay the filing fee. Therefore, the court grants petitioner's in forma pauperis application and waives his filing fee. VI. CONCLUSION Although the court GRANTS petitioner's application to proceed in forma pauperis, petitioner's bases for his RCFC 27 petition, even liberally construed, are not within the Court of Federal Claims' subject-matter jurisdiction. Accordingly, the court DENIES the petition. In addition, the court certifies, pursuant to 28 U.S.C. $ 1915(aX3), that any appeal from this order would not be taken in good faith because the claims upon which the petition is based are clearly beyond the subject-matter j urisdiction of this court. IT IS SO ORDERED, I while the Court of Federal Claims is not generally considered to be a "court of the United States" within the meaning of title 28 of the United States Code,28 U.S.C. $ 451' the court has jurisdiction to adjudicate applications to proceed in forma pauperis. See 28 U.S.C. purposes $ 2503(d) (deeming the Courl ofFederal Claims to be a "court ofthe United States" for of 28 U.S.C. { l9l5). 7
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