No. 16-1056C 

Filed: January 6, 2017 

****** ** * * ********* * 

* COLLINS 0. NYABWA, * 

Plaintiff, * 

* 

v. * 

* UNITED STATES, * 

Defendant. * 

* 

* ****************** * 

Collins 0. Nyabwa, pro se, Corpus Christi, TX. 

FILED 

JAN - 6 2017 

U.S. COURT OF 

FEDERAL CLAIMS 

28 u.s.c. § 1495; 28 u.s.c. 

§ 2513; Motion to Dismiss; Pro 

Se. 

Alexander 0. Canizares, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, D.C., for defendant. With him 

was Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Benjamin C. 

Mizer, Principal Deputy Assistant Attorney General, Civil Division, Department of Justice, 

Washington, D.C. 

OPINION 

HORN, J. 

FINDINGS OF FACT 

Pro se plaintiff, Collins Nyabwa, filed an apparent complaint titled "ACTUAL 

INNOCENCE COMPENSATION CLAIM PURSUANT TO 28 U.S.C. §§ 1495 AND 2513 

(COLLECTIVELY, THE 'UNJUST CONVICTION STATUTES') AND BRIEF IN 

SUPPORT THEREOF" in the United States Court of Federal Claims alleging that 

defendant, the United States, "illegally detained/wrongfully imprisoned" him, for violating 

federal immigration law, at a federal immigration detention center in Houston, Texas, 

between July 2012 and November 2013.

1 As a result of plaintiff's allegedly illegal 

detention and allegedly wrongful imprisonment for approximately sixteen months, plaintiff 

seeks to recover $66,666.00 in monetary damages pursuant to 28 U.S.C. § 1495 (2012) 

and 28 U.S.C. § 2513 (201 2). Plaintiff filed a motion to proceed in forma pauperis, which 

this court granted. 

1 According to plaintiff, prior to his conviction under Texas state law, he was a legal 

resident of the United States. 
Plaintiff alleges that, on July 29, 2011, he was convicted by a Texas state court of 

three counts "Improper Photography" under Texas state statute "§21.15(b)(1 ),"for which 

he was sentenced to one year imprisonment. Plaintiff alleges that "upon completion of his 

Texas state jail sentence" in July 2012, he was "transferred to an immigration detention 

center in Houston Texas" and held under mandatory detention for deportation 

proceedings. Plaintiff states that, in April 2013, "because of the Texas state convictions," 

federal immigration authorities charged, and subsequently convicted, him of violating 

federal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), and ordered that he be 

deported to Kenya. According to his complaint, plaintiff was released from the detention 

center in November 2013 "when an Immigration Judge terminated his immigration 

proceedings." 

Plaintiff alleges that, approximately one year after his release from the federal 

detention center, "in an unrelated case," Ex Parle Thompson, 442 S.W.3d 325, 351 (Tex. 

Crim. App. 2014), the Texas Court of Criminal Appeals found the Texas state statute 

under which Mr. Nyabwa had been convicted to be unconstitutional. On August 23, 2016, 

approximately three years after plaintiff was released from the detention center, a United 

States Judge of the Southern District of Texas vacated plaintiff's three convictions under 

Texas state law. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016) 

(vacating the previous judgments of Texas trial court adjudging Collins 0. Nyabwa guilty 

of improper photography under section 21.15(b) of the Texas Penal Code). 2 

In his complaint, plaintiff asserts that, because his Texas state convictions were 

vacated in August 2016, "he is 'actually innocent' of any violations to 8 

U.S.C. § 1227(a)(2)(A)(ii), the federal immigration statute behind his immigration 

detention." According to plaintiff, his "immigration violations were ONLY brought about by 

his Texas State convictions and now that they have been formally VACATED, he is 

'actually/factually' innocent of ANY immigration violation." Plaintiff asserts that, because 

he is "'actually innocent,' the U.S. government must compensate him pursuant to 28 

U.S.C. § 1495 & 2513 for his 16 months of wrongful detention/imprisonment," in the 

amount of $66,666.00. 

In sum, the timeline of events plaintiff offers, other than the numerous cases he 

had filed in United States District Court for the Southern District of Texas, 3 is that: on July 

2 The Order vacating plaintiff's three convictions was issued on August 23, 2016, two days 

before plaintiff filed his complaint in the above-captioned case. 

3 In addition to the above-captioned case, it appears that Mr. Nyabwa has initiated the 

following actions in the United States District Court of Texas, Southern District relating to 

his allegedly improper sixteen-month detention, which remain pending: Nyabwa v. Harris 

Cty. Sheriff, 16-mc-2118 (S.D. Tex. Sept. 14, 2016); Nyabwa v. Warden, No. 16-mc-1965 

(S.D. Tex. Aug. 29, 2016); Nyabwa v. Warden, No. 16-2638 (S.D. Tex. Aug. 29, 2016); 

Nyabwa v. Corrections Corp. of Am., No. 16-1644 (S.D. Tex. June 6, 2016); Nyabwa v. 

Unknown Jailers at CCA, No. 16-782 (S.D. Tex. Mar. 24, 2016); Nyabwa v. United States, 

No. 16-783 (S.D. Tex. Mar. 23, 2016). Plaintiff also filed the following actions in the United 

States District Court of Texas, Southern District relating to his allegedly improper sixteen2 
29, 2011, he was convicted under the Texas Penal Code and sentenced to one year state 

imprisonment; following his release, he was held in an immigration detention center from 

July 2012 to November 2013, when he was released; in September 2014, the Texas 

Court of Criminal Appeals held the state statute under which plaintiff was previously 

convicted to be unconstitutional; in August 2016, a Judge of the United States Southern 

District of Texas vacated plaintiff's earlier convictions; and, on August 25, 2016, Mr. 

Nyabwa filed his complaint in this court. 

In response to plaintiff's complaint, defendant filed a motion to dismiss plaintiff's 

complaint pursuant to Rule 12(b)(1) and (b)(6) of the Rules of the United States Court of 

Federal Claims (RCFC) (2016). Defendant argues that this court lacks subject matter 

jurisdiction to consider Mr. Nyabwa's claims under 28 U.S.C. § 1495 because this statute 

limits the court's jurisdiction to claims based upon wrongful convictions for Federal, not 

state, crimes. Defendant also argues that a plaintiff seeking relief based upon an alleged 

reversal or set-aside of a conviction under 28 U.S.C. § 2513(a) must demonstrate, 

through the necessary record or certificate, that the conviction was set aside due to lack 

of guilt. 

DISCUSSION 

The court recognizes that plaintiff is proceeding pro se, without the assistance of 

counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to 

invoke review by a court, pro se plaintiffs are entitled to liberal construction of their 

pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations 

contained in a pro se complaint be held to "less stringent standards than formal pleadings 

drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 

U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 

U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 

F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff'd, 

603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[!]here is 

no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled 

out in his [or her] pleading.""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) 

(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) 

(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see 

also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011); 

month detention, which have been terminated: Nyawba v. Stephens, No. 12-1152 (S.D. 

Tex. Apr. 4, 2012) (terminated Aug. 23, 2016), appeal denied, No. 12-20682 (5th Cir. 

June 20, 2013); Nyabwa v. Harris Cty. Sheriff, 16-mc-2186 (S.D. Tex. Sept. 14, 2016) 

(terminated Jan. 4, 2016); Nyabwa v. Warden, No. 16-1643 (S.D. Tex. June 6, 2016) 

(terminated June 30, 2016); Nyabwa v. Warden, 16-0786 (S.D. Tex. Mar. 23, 2016) 

(terminated May 23, 2016). Additionally, plaintiff indicates in his complaint that he filed an 

administrative claim "on November 24, 2015 with the Department of Homeland Security 

(DHS) raising a similar 'actual innocence' compensation claim," and that "DHS formally 

denied plaintiff's Administrative Claim on February 22, 2016." Plaintiff attached a copy of 

this claim to his complaint. 

3 
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiff is held to 

a less stringent standard than that of a plaintiff represented by an attorney, the pro se 

plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a 

preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) 

(citing Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 

(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the 

evidence."), reh'g and reh'q en bane denied (Fed. Cir. 2002)); see also Shelkofsky v. 

United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities 

in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."' 

(quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United 

States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less 

stringent standard, such leniency 'with respect to mere formalities does not relieve the 

burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed. 

Cl. at 253)). 

Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1) 

for lack of subject matter jurisdiction, and RCFC 12(b)(6), for failure to state a claim for 

which relief may be granted. The Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this 

court as follows: 

The United States Court of Federal Claims shall have jurisdiction 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. 

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the 

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United 

States (1) founded on an express or implied contract with the United States, (2) seeking 

a refund from a prior payment made to the government, or (3) based on federal 

constitutional, statutory, or regulatory law mandating compensation by the federal 

government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 

289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee 

Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'q and reh'q en bane denied 

(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 

1310, 1314 (Fed. Cir. 1999). 

"Not every claim invoking the Constitution, a federal statute, or a regulation is 

cognizable under the Tucker Act. The claim must be one for money damages against the 

United States .... " United States v. Mitchell, 463 U.S. at 216; see also United States v. 

White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 

F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. 

United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv., Inc. v. 

United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must ... identify a 

substantive source of law that creates the right to recovery of money damages against 

the United States."); Golden v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario 

Power Generation. Inc. v. United States, the United States Court of Appeals for the 

4 
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in 

the United States Court of Federal Claims. The court wrote: 

The underlying monetary claims are of three types .... First, claims alleging 

the existence of a contract between the plaintiff and the government fall 

within the Tucker Act's waiver .... Second, the Tucker Act's waiver 

encompasses claims where "the plaintiff has paid money over to the 

Government, directly or in effect, and seeks return of all or part of that sum." 

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d 

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in 

which 'the Government has the citizen's money in its pocket"' (quoting 

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) .... 

Third, the Court of Federal Claims has jurisdiction over those claims where 

"money has not been paid but the plaintiff asserts that he is nevertheless 

entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007. 

Claims in this third category, where no payment has been made to the 

government, either directly or in effect, require that the "particular provision 

of law relied upon grants the claimant, expressly or by implication, a right to 

be paid a certain sum." kL see also [United States v. ]Testan, 424 U.S. 

[392,] 401-02 [1976] ("Where the United States is the defendant and the 

plaintiff is not suing for money improperly exacted or retained, the basis of 

the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause of action for money damages unless, as the Court 

of Claims has stated, that basis 'in itself ... can fairly be interpreted as 

mandating compensation by the Federal Government for the damage 

sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is 

commonly referred to as claims brought under a "money-mandating" 

statute. 

Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); 

see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012). 

To prove that a statute or regulation is money-mandating, a plaintiff must 

demonstrate that an independent source of substantive law relied upon "'can fairly be 

interpreted as mandating compensation by the Federal Government."' United States v. 

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400 

(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United 

States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 

1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting 

monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo 

Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply 

a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims 

premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not 

money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal 

should be for lack of subject matter jurisdiction.'" Jan's Helicopter Serv .. Inc. v. Fed. 

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty .. Ariz. v. 

United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 

5 
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under 

the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009). 

When deciding a case based on a lack of subject matter jurisdiction or for failure 

to state a claim, this court must assume that all undisputed facts alleged in the complaint 

are true and must draw all reasonable inferences in the non-movant's favor. See Erickson 

v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge 

must accept as true all of the factual allegations contained in the complaint." (citing Bell 

All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A., 

534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 

F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d 

1159, 1163 (Fed. Cir. 2011 ). 

"Determination of jurisdiction starts with the complaint, which must be well-pleaded 

in that it must state the necessary elements of the plaintiff's claim, independent of any 

defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) 

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g 

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. 

Cl. 203, 208 (2011 ); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 

713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the 

grounds for the court's jurisdiction," and "a short and plain statement of the claim showing 

that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2) 

(2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell All. Corp. v. 

Twombly. 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim for relief, 

"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to 

support a claim." Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also 

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., 

concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice 

and Procedure§ 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) 

("[C]onclusory allegations unsupported by any factual assertions will not withstand a 

motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff's factual allegations must 'raise 

a right to relief above the speculative level' and cross 'the line from conceivable to 

plausible.'" Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting 

Bell All. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g 

denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and 

conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550 

U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further 

factual enhancement.'" Ashcroft v. Igbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. at 555). 

When construed liberally, plaintiff's complaint contends that he is entitled to receive 

monetary damages pursuant to 28 U.S.C. § 1495 and 28 U.S.C. § 2513 because he is 

"actually innocent" of the state law violations for which he was convicted and, therefore, 

"actually innocent" of any violation of federal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii) 

that was the basis for his allegedly, illegal detention for a sixteen month period between 

July 2012 and November 2013. Defendant argues that plaintiff has failed to allege or show 

that he has obtained a certificate of innocence from any court or that his actual innocence 

6 
has been established, as required by 28 U.S.C. §§ 2513 and 1495. Moreover, defendant 

argues that plaintiff's conviction under the Texas Penal Code was not set aside due to a 

finding of innocence. Defendant argues also that this court does not have subject matter 

jurisdiction to consider plaintiff's claims under 28 U.S.C. § 2513 because plaintiff's 

detention pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227(a), "does not 

constitute an 'offense against the United States' for purposes of section 2513." According 

to defendant, plaintiff's deportation proceedings do not qualify as a conviction of a crime 

committed against the United States for which money damages are available under 28 

U.S.C. § 2513. 

Plaintiff tries to rely on 28 U.S.C. § 1495 and 28 U.S.C. § 2513 to invoke the 

jurisdiction of this court, however, Mr. Nyabwa's claim for monetary damages does not 

fall within the jurisdiction of this court. Although this court has jurisdiction to adjudicate 

certain claims for unjust conviction and imprisonment pursuant to 28 U.S.C. §§ 1495 and 

2513 when a plaintiff's claim satisfies specified, well-established, threshold requirements, 

plaintiff in the above-captioned case has not met these requirements. Both 28 U.S.C. 

§ 1495 and 28 U.S.C. § 2513 relate to criminal offenses against the United States, and, 

this court does not have jurisdiction to hear a plaintiff's unjust conviction and 

imprisonment claims arising from state crimes. See 28 U.S.C. § 1495 (stating that this 

court has jurisdiction to render judgment upon any claim for damages any person unjustly 

convicted of an offense against the United States) (emphasis added); see also Machulas 

v. United States, 621 F. App'x 629, 632 (Fed. Cir. 2015) (holding that the Court of Federal 

Claims did not possess jurisdiction to hear plaintiff's claim for unjust conviction and 

imprisonment because plaintiff was convicted of a state crime, not a federal crime). 

Therefore, to the extent plaintiff in the above-captioned case is seeking to recover 

monetary damages based on a claim of unjust conviction and imprisonment related to his 

conviction under a Texas state statute, this court does not have jurisdiction to consider 

such a claim. 

Plaintiff asserts that his complaint in this court alleging unjust imprisonment 

pertains only to his detention by federal immigration officials pursuant to the Immigration 

and Nationality Act, 8 U.S.C. § 1227(a). According to 28 U.S.C. § 1495, "[!]he United 

States Court of Federal Claims shall have jurisdiction 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. Section 1495 of title 28, "must be read in conjunction 

with 28 U.S.C. § 2513." Humphrey v. United States, 52 Fed. Cl. 593, 596 (2002), aff'd, 

60 F. App'x 292 (Fed. Cir. 2003) (citations omitted); see also Abu-Shawish v. United 

States, 120 Fed. Cl. 812, 813 (2015) ("To establish jurisdiction, however, a plaintiff 

seeking compensation under Section 1495 must also meet the requirements of 28 U.S.C. 

§ 2513(a)(1)."). The statute at 28 U.S.C. § 2513 states: 

(a) Any person suing under section 1495 of this title must allege and prove 

that: 

(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 

7 
guilty of such offense, as appears from the record or 

certificate of the court 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. 

(b) Proof of the requisite facts shall be by a certificate of the court or pardon 

wherein such facts are alleged to appear, and other evidence thereof 

shall not be received. 

(c) No pardon or certified copy of a pardon shall be considered by the 

United States Court of Federal Claims unless it contains recitals that the 

pardon was granted after applicant had exhausted all recourse to the 

courts and that the time for any court to exercise its jurisdiction had 

expired. 

(d) The Court may permit the plaintiff to prosecute such action in forma 

pauperis. 

(e) The amount of damages awarded shall not exceed $100,000 for each 

12-month period of incarceration for any plaintiff who was unjustly 

sentenced to death and $50,000 for each 12-month period of 

incarceration for any other plaintiff. 

28 U.S.C. § 2513 (emphasis in original). As this language indicates, 28 U.S.C. § 2513 

requires that a plaintiff suing under 28 U.S.C. § 1495, "must allege and prove" that "[h]is 

conviction has been reversed or set aside on the ground that he is not guilty of the offense 

of which he was convicted ... or that he has been pardoned upon the stated ground of 

innocence and unjust conviction," and, that "[h]e did not commit any of the acts charged." 

28 U.S.C. § 2513(a); see also Abu-Shawish v. United States, 120 Fed. Cl. at 813 ("[l]n 

order for this court to have jurisdiction, a plaintiff must obtain a certificate of innocence 

from the district court which states that not only was he not guilty of the crime of 

conviction, but also that none of his acts related to the charged crime were other crimes."); 

Carpenter v. United States, 118 Fed. Cl. 712, 713 (2014) ("Jurisdiction conferred by 

Section 1495 is limited to a plaintiff who proves that his conviction has been reversed or 

set aside on the grounds that he is not guilty ... or that he has been pardoned."). In 

Humphrey, this court indicated, "[t]hese jurisdictional requirements [of 28 U.S.C. § 1495 

and 28 U.S.C. § 2513] are strictly construed, and a heavy burden is placed upon a 

claimant seeking relief under such provisions." Humphrey v. United States, 52 Fed. Cl. 

at 596; see also Wood v. United States, 91 Fed. Cl. 569, 577 (2009) (holding that 

compliance with § 2513, including submission of a certificate of innocence from the 

8 
federal district court, is a prerequisite to the jurisdiction of the Court of Federal Claims). 

Additionally, as noted in Sykes v. United States, 105 Fed. Cl. 231 (2012), "a certificate or 

pardon must 'either explicitly or by factual recitation' state that the plaintiff has satisfied 

the requirements of Section 2513." !Q,_ at 233 (quoting Humphrey v. United States, 52 

Fed. Cl. at 597). 

Plaintiff argues that he has provided the necessary proof of his innocence as 

required by 2513(a) by submitting to the court "a document proving a U.S. District Judge 

on 8/23/2016 VACATED his 3 Texas state convictions." Defendant argues that the 

vacation of Mr. Nyabwa's conviction for reasons other than actual innocent is not sufficient 

to confer jurisdiction under section 2513. 

Plaintiff has not alleged that his conviction was set aside or reversed because he 

had not committed, or was not guilty of, the acts underlying his original conviction. 

Instead, plaintiff relies solely on the Order of the United States District Court Judge which 

held that "the Judgments of the 248th District Court of Harris County, Texas, in Cause 

Nos. 1266052, 1266053, and 1266054, adjudging Petitioner Collins 0. Nyabwa guilty of 

improper photography under section 21.15(b) of the Texas Penal Code, are VACATED." 

(emphasis in original). This Order was submitted by defendant to the court. Section 2513 

provides that "[p]roof of the requisite facts shall be by a certificate of the court or pardon," 

and that other evidence of a plaintiff's innocence shall not be received by the court. 28 

U.S.C. § 2513(b). This court reviewed the Order of the Texas District Court Judge and 

found no discussion of facts supporting plaintiff's innocence or a determination of 

innocence by the District Court. Having received and reviewed the Order of the Texas 

District Court Judge, this court finds that there is no evidence that even plaintiff's state 

court convictions were vacated due to a finding by any court of plaintiff's innocence, as 

required by the statute. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016). 

Additionally, plaintiff has not alleged, much less submitted, evidence that he received a 

pardon for the crimes for which he was convicted. Because plaintiff has failed to satisfy 

the jurisdictional requirements of 28 U.S.C. §§ 1495 and 2513, and plaintiff does not cite 

to any other authority to invoke the jurisdiction of this court, this court is not the proper 

forum to adjudicate plaintiff's claim. Plaintiff's claim for monetary damages does not fall 

within the grant of jurisdiction to this court. The court also notes that plaintiff's detention 

at the immigration facility between July 2013 and November 2013 was not improper 

because the detention was based on plaintiff's criminal conviction, which was not vacated 

until August 24, 2016, based on the finding of the Texas Court of Criminal Appeals that 

the statute under which plaintiff was convicted was unconstitutional, which occurred 

approximately one year after plaintiff was released from the immigration detention center 

in November 2013. 

9 
CONCLUSION 

Because plaintiff has failed to comply with the statutory requirements of 28 

U.S.C. §§ 1495 and 2513, defendant's motion to dismiss plaintiff's complaint is 

GRANTED, and plaintiff's complaint is DISMISSED. The Clerk of Court shall enter 

JUDGMENT consistent with this Order. 

IT IS SO ORDERED. 

10 

d~at:0-/L MARIAN BLANK HORN 

Judge