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No. 15-1071C

Filed: November 30, 2015

***********

HARRY NIE,

Plaintiff,

v,

UNITED STATES,

Defendant.

Harry Nie, Mitchells, VA, p1q se.

Albert S. larossi, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for the defendant. With her

were Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, Commercial Litigation Branch, Civil Division, Washington,

D.C.

ORDER

HORN. J.

FINDINGS OF FACT

The plaintiff, Harry Nie, filed a pro se, "COMPLAINT WITH JURY DEMAND"I in

this court on September 25, 2015, along with an application to proceed in forma

pauperis. (emphasis in original). Plaintiff's complaint begins:

This is a LAWSUIf] pursuant to: 1) 2U.,S.G-A._W!., Tucker Act

jurisdiction, seeking $95,000 each year in compensation damages for

unjust loss of plaintiff-property' rights to continued employment with

1 "The court is without authority to grant plaintiffs' request for a jury trial. 'lt has long

been settled that the Seventh Amendment right to trial by jury does not apply in actions

against the Federal Government."' Cox v. United States, 105 Fed. Cl. 213, 216 n.10

(2012)(quotingLehmanv.Nakshian,453U.S. 156, 160(1981)). Thecourtnotesthisis

also plaintiff's only reference to a jury trial in the complaint.

2 Capitalization, grammar, punctuation, and other errors are quoted in this Order as they

appear in plaintiffs submissions.

FILED

NOV I O e0U

U.S. COURT OF

FEDERAL CLAIMS

Pro Se Plaintiff; ln Forma Pauperis

Application; Lack of Subject Matter

Jurisdiction.
General Dynamics Amphibious System, since government willfully

violating due process of law in plaintiff legal case in violation of the Fifth

Amendment, the amount accumulates starting since 2009 till plaintiff

rights will be restored, and of $300,000 each year in punitive damages for

unjust loss of liberty without due process of law in violation of the Fifth

Amendment, the amount accumulates starting since 2009 till plaintiff

rights will be restored. Government committed "breach of contract" with

tortious, intentional or egregious misconduct of defendant,

(emphasis in original). Plaintiff claims that: "On September 14. 2009 plaintiff was

convicted in Prince Williams County Circuit Court, Manassas, Virginia by coerced plea

guilty of multiplicitous carbon copy counts of rape/incest and aggravated sexual battery,

without justifiable evidences." (emphasis in original). As noted in the attachments to

plaintiffs complaint, however, a final order issued on April 2, 2014, by Chief Judge

Rebecca Beach Smith of the United States District Court for the Eastern District of

Virginia indicated that: "On September 14,2009, the Petitioner [Mr. Nie] pled guilty to

five (5) counts of incest and five (5) counts of aggravated sexual battery, in the Prince

William County Circuit Court, and was sentenced to 100 years with 80 years

suspended, leaving a total time to serve of 20 years." See Nie v. Clark, Case No. 2:1 1-

cv-666 (E.D. Va. Apr.2,2014).

Plaintiff claims that: "ln the time period of from March 8, 2011 till present,

plaintiff has been confined in the current prison, Coffeewood Correctional Center in the

State of Virginia, with a meaningful access of legal materials." (emphasis in original).

Plaintiff subsequently lists twenty six separate actions taken by plaintiff or the various

courts since 2011, including decisions by the United States District Court for the Eastern

District of Virginia, the United States Court of Appeals for the Fourth Circuit, the Virginia

Supreme Court, and the United States Supreme Court.3 For example, for the actions

taken in 2015 alone, plaintiff alleges:

321 On February 25, 2015, plaintiff tried to file a bill of complaint for this

Miscarriage of Justice to the United States Supreme Court, in which the

court below is suspending the writ of federal habeas corpus and oveniding

the U.S. Constitution and the applicable statutes, without justification of

3 After plaintiff filed his complaint on September 25, 2015 in this court, on October 20,

2015, plaintiff filed a re se complaint in the United States District Court for the District

of Columbia seeking injunctive and declaratory relief. The court notes that parts of

plaintiff's October 20,2015 complaint are identical to the complaint filed in this court on

September 25,2015. The same day the complaint was filed in District Court, October

20, 2015, the District Court dismissed plaintiff's complaint concluding, "[i]nsofar as the

plaintiff continues to challenge his convictions in the Virginia courts, he has no recourse

in this federal district." Nie v. Gov't of the United States of America, Case No. 15-1788

(D.D.C. Oct.20,2015). Subsequently, on November 19,2015, plaintiff filed an appeal to

the United States Court of Appeals for the District of Columbia Circuit. See Nie v. Gov't

of the United States of America, Case No. 15-5320 (D.C. Cir. Nov. 19,2015).
laws as described in this complaint. However, due to very limited financial

resources to access courts, plaintiff sent the complaint to the Supreme

Court of the United States and to the Attornev General of the United

States, without sending to other defendants.

33) On, March 23, 2015, the writ of certiorari as denied by the United

States Supreme Court.

341 On May 18, 2015, the rehearing was denied by the United States

Suoreme Court.

351 On June 9, 2015, the complaint to the United States Supreme Court

was returned due to failing to comply with the rules of the Court, without

ruling it, see a copy attached as Appendix Supp.

In his claims for relief in this court, plaintiff alleges that

defendant has acted with reckless indifference to plaintiffl rights, ill will, a

desire to injure, or malice committed as independent torts accompanying

breach of contract as "FRAUD, DECEIT, CONyERS/ON, BREACH OF

FIDUCIARY DUTY, BREACH OF THE COVENANT OF GOOD FAITH

AND FAIR DEALING, NEGLIGENCE, INTENTIONAL INFLICTION OF

EMOTIONAL D/SIRESS, MALICE, FALSE IMPRISONMENT", inducing

the Breach of Contract in reference to the U.S. CONSTITUTION ARTICLE

ll section 1, section 3, and the U.S. CONSI/TUTION ARTICLE Vl clause

(emphasis in original). Plaintiff claims that "since the defendant Suspendinq the

pivileqe of the Wit of Habeas Corpus and the defendant Ovenidinq the Statutes and

the Fifth. Sixth- and Foufteenth Amendment of the United States Constitution. without

justification," (emphasis in original), "the defendant committed tortious misconducts

inducing this breach of contract, without excuse and justification, causing unjust loss of

liberty and enjoyment of live since 2009 till to this present date."

Therefore, as noted above,

the plaintiff demands for judgment against the United States in sum of $

95,000 each year in compensation damages for unjust loss of plaintiffproperty' rights to continued employment with General Dynamics

Amphibious System, since the defendant Suspendino the pivileqe of the

Writ of Habeas Corpus and the defendant Ovenidinq the Statutes and the

Fifth. Sixth- and Fourteenth Amendment of the United States Constitution.

without justification, the amount accumulates starting-since year of 2009

till plaintiff rights will be restored, and of $ 300,000 each year in punitive

damages for unjust-loss of liberty, since the defendant Suspending the

privileqe of the Writ of Habeas Corpus and the defendant Overridinq the
Statutes and the Fifth. Sixth- and Foufteenth Amendment of the United

States Constitution. without justification, the amount accumulates starting

since year of 2009 till plaintiff rights will be restored.

(emphasis in original).

On November 23, 2015, the defendant filed a motion to dismiss for lack of

subject matter jurisdiction. For the reasons discussed below, it is clear that this court

lacks jurisdiction over plaintiff's complaint.

DtscussroN

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'q denied,405 U.S. 9a8 (972); see also Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v.

Gamble,429 U.S. 97, 106 (1976), reh'q 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, affd,603 F. App'x 947 (Fed. Cir.2015), cert. denied 135 S. Ct. 1909

(2015). "However, "'[t]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.""'Lenoen v. United States, 100

Fed. Cl. 317 , 328 (201 1) (alterations in original) (quoting Scooin v. United States, 33

Fed. Cl. 285,293 (1995) (quoting Clark v. Nat'l Travelers Life lns. Co.,518 F.2d 1167,

1169 (6th Cir. 1975))); see also Bussiev. United States,96 Fed. C|.89,94, affd,443F.

App'x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl.249,253 (2007).

"While a pro se 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 Huqhes v. Rowe, 449 U.S. at 9 and Tavlor v.

United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing

jurisdiction by a preponderance of the evidence."), reh'q and reh'q en banc denied (Fed.

Cir. 2002)); see also Shelkofskv v. United States, 119 Fed. Cl. 133, 139 (2014) ("[Wlhile

the court may excuse ambiguities in a pro se plaintiffs 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

plaintiffs 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).

It is well established that "'subjeclmatter jurisdiction, because it involves a

court's power to hear a case, can never be forfeited or waived."' Arbauqh v. Y & H

Corp.,546 U.S.500,514 (2006) (quoting United States v. Cofton,535 U.S.625,630

(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide

jurisdictional questions that the parties either overlook or elect not to press." Henderson

ex rel. Henderson v. Shinseki, 562 U.S. 428,434 (2011); see also Gonzalez v. Thaler,

132 S. Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction,

courts are obligated to consider sua sponle issues that the parties have disclaimed or

have not presented."); Hertz Corp. v. Friend, 559 U.S.77,94 (2010) ("Courts have an

independent obligation to determine whether subject-matter jurisdiction exists, even

when no party challenges it." (citing Arbauoh v. Y & H Corp., 546 U.S. at 514)); Special

Devices. lnc. v. OEA, lnc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ('[A] court has a duty

to inquire into its jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less

Druq Stores N.W., lnc.,91B F.2d 160, 161 (Fed. Cir. 1990)); View Enq'q, lnc. v. Robotic

Vision Svs.. lnc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their

jurisdiction, whether the parties raise the issue or not."). "Objections to a tribunal's

jurisdiction can be raised at any time, even by a party that once conceded the tribunal's

subject-matter jurisdiction over the controversy." Sebelius v. Auburn Req'l Med. Ctr.,

't33 S. Ct. 817,824 (2013); see also Arbauoh v. Y & H Corp., 546 U.S. at 506 ("The

objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a

party, or by a court on its own initiative, at any stage in the litigation, even after trial and

the entry of judgment."); Cent. Pines Land Co., L.L.C. v. United States,697 F.3d 1360,

1364 n.1 (Fed. Cir. 2012) ("An objection to a court's subject matter jurisdiction can be

raised by any party or the court at any stage of litigation, including after trial and the

entry of judgment." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick's

Mushroom Serv.. lnc. v. United States,521 F.3d 1338, 1346 (Fed. Cir.2008) ("[Alny

party may challenge, or the court may raise sua sponte, subject matter jurisdiction at

any time." (citing Arbauoh v. Y & H Corp., 546 U.S. at 506; EqElery.=Unilellslateg, 379

F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.2004), cert.

denied, 545 U.S. 1127 (2005); and Fanninq. Phillips & Molnar v. West,160 F.3d717,

720 (Fed. Cir. 1998))); Pikulin v. United States,97 Fed. Cl.71,76, aopeal dismissed,

425 F. App'x 902 (Fed. Cir. 2011). In fact, "[s]ubject matter jurisdiction is an inquiry that

this court must raise sua sponfe, even where - . . neither party has raised this issue."

Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdinos,370 F.3d 1354, 1369 (Fed. Cir.)

(citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481 ,'1485 (Fed. Cir.), reh'q denied

and en banc suqqestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'q

and reh'o en banc denied (Fed. Cir. 2004), cert. qranted in pa[ sub. nom Lab. Corp. of

Am. Holdinqs v. Metabolite Labs.. Inc., 546 U.S. 975 (2005), cert. dismissed as

improvidentlv qranted, 548 U.S. 124 (2006); see also Avid ldentification Svs.. lnc. v.

Crvstal lmport Corp., 603 F.3d 967,971 (Fed. Cir.) ("This court must always determine

for itself whether it has jurisdiction to hear the case before it, even when the parties do

not raise or contest the issue."), reh'q and reh'q en banc denied, 614 F.3d 1330 (Fed.

Cir.2010), cert. denied, 131 S. Ct.909 (2011).

Pursuant to the Rules of the United States Court of Federal Claims (RCFC) and

the Federal Rules of Civil Procedure, 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(aX1), (2)

(2015); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also Ashcroft v. lqbal, 556 U.S. 662,
677-78 (2009) (citing Bell Atl. Corp. v. Twomblv, 550 U.S. 544,555-57,570 (2007)).

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

that it must state the necessary elements of the plaintiffs claim, independent of any

defense that may be interposed." Hollev 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'q denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States,

97 Fed. C|.203, 208 (2011); Gonzalez-McCaullev Inv. Grp., lnc. v. United States,93

Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted inferences of

fact do not suffice to support a claim." Bradlev 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.

Cn. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A.

Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)). "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 Consultinq v. United States, 104 Fed. Cl. 510,

523 (2012) (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), aff'd, 562 F. App'x 964

(Fed. Cir.), reh'q denied (Fed. Cir. 2014). As stated in Ashcroft v. lqbal, "[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 comolaint suffice if it tenders 'naked

assertion[s]' devoid of 'further factual enhancement. "' Ashcroft v. lqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555).

The Tucker Act 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 bythe 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. Navaio Nation, 556 U.S. 287,

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

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

denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1M2 (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. CL 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 at 1343 ("[P]laintiff must. . . identifya

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

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. lCorp. 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 Claop 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." ld.; see also lUnited States v.

lTestan, 424 U.S. 1392,) 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 regulation-does 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 PowerGeneration, 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.

Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.5.392, 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 oflaw

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

Navaio Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it
is simply al jurisdictional provision[] that operate[s] to waive sovereign immunity for

claims premised on other sources of law (e.9., statutes or contracts)."). "'lf 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 Cntv.. Ariz. v.

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

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).

From the complaint, it appears that plaintiff has asserted violations of his

constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution, alleged tortious conduct by the United States, as well as a breach

of contract although Mr. Nie has not alleged specific grounds for these claims in his

complaint. Regarding plaintiff's constitutional claims, defendant argues "[a]lthough Mr.

Nie cites a number of constitutional amendments that he claims provide jurisdiction,

none do in his case. lt is well established, for example, 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." For plaintiffs claims for due

process under the Fifth and Fourteenth Amendments, the United States Court of

Appeals for the Federal Circuit has held that this court does not possess jurisdiction to

consider claims arising under the Due Process Clauses of the Fifth and Fourteenth

Amendments. See Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)

(citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)) (no jurisdiction

over a due process violation under the Fifth and Fourteenth Amendments); see also

Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("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."

(citing LeBlancv. United States,50 F.3d at 1028), cert. denied, 134 S. Ct.259 (2013));

ln re United States,463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecause the Due Process

Clause is not money-mandating, it may not provide the basis for jurisdiction under the

Tucker Act."), reh's and reh'q en banc denied (Fed. Cir. 2006), cert. denied sub nom.

Scholl v. United States, 552 U.S. 9a0 (2007); Acadia Tech.. lnc. & Global Win Tech..

Ltd. v. United States, 458 F.3d 1327,1334 (Fed. Cir. 2006); Collins v. United States, 67

F.3d 284,288 (Fed. Cir.) ("[T]he due process clause does not obligate the government

to pay money damages."), reh'q denied (Fed. Cir. 1995); Mullenberq v. United States,

857 F .2d 770, 773 (Fed. Cir. 1988) (finding that the Due Process clauses "do not trigger

Tucker Act jurisdiction in the courts"); Murrav v. United States,817 F.2d 1580, 1583

(Fed. Cir. 1987) (noting that the Fifth Amendment Due Process clause does not include

language mandating the payment of money damages); Harper v. United States, 104

Fed. Cf.287,291 n.5(2012); Hampel v. United States,97 Fed. C|.235,238,affd,429

F. App'x 995 (Fed. Cir.2011), cert. denied, 132 S. Ct. 11OS (2012); McCullouqh v.

United States, 76 Fed. Cl. 1,4 (2006), aopeal dismissed, 236 F. App'x 615 (Fed. Cir.),

reh'q denied (Fed. Cir.), cert. denied, 552 U.S. 1050 (2007) ("[N]either the Fifth

Amendment Due Process Clause . . . nor the Privileges and lmmunities Clause provides

a basis for jurisdiction in this court because the Fifth Amendment is not a source that

mandates the payment of money to plaintiff."). Due process claims "must be heard in
District Court." Kam-Almaz v. United States, 96 Fed. Cl. 84, 89 (2011) (citing Acadia

Tech., Inc. & Global Win Tech., Ltd. v. United States,458 F.3d at 1334), aff'd,682 F.3d

'f 364 (Fed. Cir.2O12); see also Hampel v. United States, 97 Fed. Cl. at 238. Therefore,

to the extent that plaintiff is attempting to allege Due Process violations, no such cause

of action can be brought in this court.

Similarly, insofar as plaintiffs claims allege a violation of his rights under the

Sixth Amendment to the United States Constitution, this Amendment is not moneymandating and, therefore, jurisdiction to review these claims does not lie in this court.

See Dupre v. United States,229 Ct. Cl. 706, 706 (1981) ("[T]he fourth and sixth

amendments do not in themselves obligate the United States to pay money damages;

and, therefore, we have no jurisdiction over such claims."); Turpin v. United States, 119

Fed. Cl. 704,707 (2015) ("To the extent that Ms. Turpin's complaint brings constitutional

challenges under the Due Process Clause and the Sixth Amendment, the Court cannot

hear such claims because neither of these constitutional provisions is a moneymandating source."); Gable v. United States, 106 Fed. Cl.294,298 (2012) ("[T]he

United States Court of Federal Claims does not have jurisdiction to adjudicate the

alleged violations of Plaintiffs Sixth Amendment rights, because that constitutional

provision is not money-mandating."); Treece v. United States, 96 Fed. Cl.226,231

(2010) (citing Milas v. United States,42Fed. C!.704,710 (1999) (finding that the Sixth

Amendment is not money-mandating)); Smith v. United States, 51 Fed. Cl.36,38

(2001) (internal citations omitted) (finding that the Court of Federal Claims lacks

jurisdiction over Sixth Amendment ineffective assistance of counsel claims), aff'd, 36 F.

App'x444 (Fed. Cir.), reh'o denied (Fed. Cir.), cert. denied,537 U.S. 1010 (2002).

Regarding plaintiffs claims concerning the writ of habeas corpus, defendant

argues "Mr. Nie primarily alleges that the Federal courts of the Fourth Circuit have

suspended the writ of habeas corpus in his case. This Court cannot grant a writ of

habeas corpus." (internal citation omitted). To the extent plaintiff brings a writ of habeas

corpus before this court, the United States Court of Appeals for the Federal Circuit has

indicated that "the habeas statute [28 U.S.C. S 2254]does not list the Court of Federal

Claims among those courts empowered to grant a writ of habeas corpus, and the trial

court therefore is without power to entertain Mr. Ledford's petition." Ledford v. United

States,297 F.3d 1378, 1381 (Fed. Cn.2002); see also Emerson v. United States, 123

Fed. Cl. 126, 129 (2015). To the extent plaintiff is seeking this court to overrule a

decision by the United States District Court for the Eastern District of Virginia, the

United States Court of Appeals for the Fourth Circuit, the Virginia Supreme Court, and

the United States Supreme Court, the Federal Circuit has found that "the Court of

Federal Claims does not have jurisdiction to review the decisions of district courts or the

clerks of district courts relating to proceedings before those courts." Joshua v. United

States, 17 F.3d 378,380 (Fed. Cir. 1994).

Furthermore, the jurisdiction of this court does not include the power to review

criminal convictions. See id. at379; Lottv. United States, 11 Cl. Ct.852,852-53 (1987);

see also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012\ While this court may

adjudicate claims for damages arising from unjust convictions overturned by other
courts, as provided by 28 U.S.C. S 1495 (2012), Mr. Nie cannot bring such a claim,

because no court has yet reversed or set aside his conviction, nor has he attached a

pardon or certificate of innocence, as is required to sustain a claim under 28 U.S.C.

S 1495. See 28 U.S.C. 52513 (2012); Abu-Shawish v. United States, 120 Fed. Ci.812,

813 (2015); Humphrevv. United States,52 Fed. Cl. 593,596 (2002), affd,60 F. App'x

292 (Fed. Cir. 2003).

As noted above, in his complaint, Mr. Nie also alleges that

defendant has acted with reckless indifference to plaintiff rights, ill will, a

desire to injure, or malice committed as independent torts accompanying

breach of contract as "FRAUD, DECEIT, CONyERS/OM BREACH OF

FIDUCIARY DUTY, BREACH OF THE COVENANT OF GOOD FAITH

AND FAIR DEALING, NEGLIGENCE, INTENTIONAL INFLICTION OF

EMOTIONAL D/SIRESS, MALICE, FALSE IMPRISONMENT."

(emphasis in original). This court, however, does not possess jurisdiction over claims

that sound in tort. See 28 U.S.C. g 1a91(a) ("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."); see also

Keene Corp. v. United States,508 U.S. 200,214 (1993); Rick's Mushroom Serv., Inc. v.

United States, 521 F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir.

1998); Brown v. United States, 105 F.3d 621 ,623 (Fed. Cir.), reh'o denied (Fed. Cir.

1997); Golden Pac. Bancoro v. United States, 15 F.3d 1066, 1070 n.8 (Fed. Cir.), reh'q

denied, en banc suoqestion declined (Fed. Cir.), cert. denied,513 U.S.961 (1994);

Hampel v. United States, 97 Fed. Cl. at 238; Woodson v. United States, 89 Fed. Cl.

640, 650 (2009); McCullouoh v. United States, 76 Fed. Cl. at 3; Aoee v. United States,

72 Fed. Cl. 284,290 (2006); Zhenqxinq v. United States, 71 Fed. Ct. 732, 739, affd,

204 F. App'x 885 (Fed. Cir.), reh'q denied (Fed. Cir. 2006). Therefore, to the extent any

of plaintiffls claims sound in tort, those claims must be dismissed.

As referenced in his tort claims, plaintiff also alleges a breach of contract.

Plaintiff claims that "the defendant acted reckless indifference to plaintiff rights," and

"[t]hus the defendant has breached the contracts as created by

The United States Constitution Article ll section 1 :

" ... Before enter on the execution of his office, he shall take care the

following oath of affirmation: J'l do solemnty swear (or affirm) that I will

faithfully execute the office of President of the lJnited States, and will to

the best of my ability, preserve, protect and defend the Constitution of the

United States",

10
The United States Constitution Article ll section 3:

" ... he shall take care that the laws be faithfully executed ... ",

The United States Constitution Article Vl clause 3:

" ... all executive and Judicial officers ... shall be bound bv oath or

affirmation to support this Constitution".

(emphasis and omissions in original).

In its motion to dismiss, defendant notes that "although this Court does possess

jurisdiction over breach of contract claims against the United States, in this case, Mr.

Nie does not allege the existence of any contract between the United States and him.

Rather, he merely claims that the various clauses of the Constitution are themserves

contracts between the Government and him." In order for this court to exercise

jurisdiction of plaintiffs attempted contract claims, under the Tucker Act, 28 U.S.C. S

1491 , a plaintiff must allege facts that demonstrate either a contract exists between

himself and the United States, or plaintiff must somehow allege he is entitled to

monetary relief under another money-mandating provision of law. To establish a valid

contract with the government, whether express or lmplied, a plaintiff must show: (1)

mutuality of intent; (2) consideration; (3) an unambiguous offer and acceptance; and (4)

actual authority on the part of the government's representative to bind the government

in contract. See Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012).

Plaintiff has offered no evidence of a valid contract between plaintiff and the

government, nor does he elaborate on how provisions of the United States Constitution

referring to the Executive Branch establish a contract. Plaintiff has failed to demonstrate

a valid contract, or demonstrated in any of his claims that his claims are properly before

this court. The court lacks subject matter jurisdiction over all Mr. Nie's claims.

Along with his complaint, plaintiff filed an application to proceed in forma

pauperis on September 25, 2015. His application indicates that he is presently

incarcerated. As required by 28 U.S.C. S 1915(aX2) (2012),Mr. Nie has included a trust

fund account statement covering the six-month period prior to the filing of his complaint

along with his application. Mr. Nie states he does not have any cash, or money in

checking, savings, and does not own any real estate, stocks, bonds, notes, automobiles

or other valuable property.

ln order to provide access to this court to those who cannot pay the filing fees

mandated by RCFC 77.1(c) (2015), the statute at 28 U.S.C. g 1915 permits a court to

allow plaintiffs to file a complaint without payment of fees or security under certain

circumstances. The standard in 28 U.s.c. g 1915(a)(1) for in forma pauperis eligibility is

"unable to pay such fees or give security therefor." Determination of what constitutes

"unable to pay" or unable to "give security therefor," and, therefore, whether to allow a

plaintiff to proceed in forma oauperis is left to the discretion of the presiding judge,

based on the information submitted by the plaintiff or plaintiffs. See, e.q., Rowland v.

Cal. Men's Colonv. Unit ll Men's Advisorv Council, 506 U.S. 194, 217-18 (1993);

11
Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011). In Fiebelkorn v. United States, the

United States Court of Federal Claims indicated:

[]he threshold for a motion to proceed in forma pauperis is not high: The

statute requires that the applicant be "unable to pay such fees." 28 U.S.C.

S 1915(a)(1). To be "unable to pay such fees" means that paying such

fees would constitute a serious hardship on the plaintiff, not that such

payment would render plaintiff destitute.

Fiebelkorn v. United States,77 Fed. Cl. 59,62 (2007); see also Haves v. United States,

7 1 Fed. C|. 366, 369 (2006).

When the person submitting a request to proceed in forma pauperis is a prisoner,

28 U.S.C. S 1915(aX2) requires that the prisoner submit, along with the affidavit

required by subsection (a)(1), a certified copy of:

[T]he trust fund account statement (or institutional equivalent) for the

prisoner for the 6-month period immediately preceding the filing of the

complaint or notice of appeal, obtained from the appropriate official of

each prison at which the prisoner is or was confined.

28 U.S.C. S 1915(a)(2); see also Matthews v. United States,72 Fed. Cl.274,277

(2006), recons. denied 73 Fed. Cl. 524 (2006). In the affidavit required under 28 U.S.C.

S 191s(aXl), a prisoner must further "state the nature of the action, defense or appeal

and affiant's belief that the person is entitled to redress." 28 U.S.C. $ 191 5(a)(1).

A prisoner is "'charged with knowing what forms are required,"' especially if the

individual has previously filed applications to proceed in forma pauperis. Resendez v.

United States, 96 Fed. Cl. 283, 286 (2010) (quoting Piskanin v. Court of Common Pleas

of Lehiqh Cntv. & all of its Judqes, 359 F. App'x 276, 278 (3d. Cir. 2009)). Although Mr.

Nie's lack of income and current incarceration may qualify him for in forma pauperis

status, and although plaintiff submitted the copy of his prison trust fund statement, as

discussed above, his complaint is being dismissed for lack of jurisdiction.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss is GRANTED. Plaintiffs

comolaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent

with this Order.

..t:

MARIAN BLANK HORN

Judge

IT IS SO ORDERED.

tz