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No. l4-76C

(Filed: August 11,2014) AUG I I 2014

* {. * {. + * * * 't +,r 'r 't *,r * * * * *:r. * * *,r I r{ r r r r r :r r 'r * * U.S. COURTOF

FEDERALCI..AIM9

JUDITH SCRASE, {.

* Motion to Dismiss; Motion for Appointment

Plaintiff, * ofCounsel; Application to Proceed In * Forma Pauperis; Pro Se Plaintiff; Fifth

v. * Amendment Taking; Fourteenth * Amendment; Statute of Limitations; Res

THE I-INITED STATES, * Judicata; Issue Preclusion

Det'endant. ;

r* **)r *** *** *** * *******:i:** ** * *,t * *,r* ** *

Judith Scrase, Las Vegas, NV, p1q se.

Sharon A. Snvder, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

PlaintiffJudith Scrase, acting plq se and seeking to proceed in forma oauoeris, alleges

that the United States, through the National Park Service, took her property without just

compensation in violation of the Fifth Amendment to the United States Constitution. Defendant

moves to dismiss plaintiff s complaint pursuant to Rules 12(bX1) and l2(b)(6) of the Rules of

the United States Court of Federal Claims C'RCFC'). For the reasons set forth below, the court

grants defendant's motion and dismisses plaintiff s complaint for lack ofjurisdiction.

I. BACKGROUND

The National Park Service has authorized a concessionaire to operate a long-term trailer

village in the Lake Mead National Recreation Area.r Plaintiff leased a site at this trailer

village-now called the Lake Mead R.V. Village-on April 30, 2001. Plaintiff s lease was on a

month-to-month basis, and subject to termination by either party with thirty days notice. A

certificate of title to a trailer was issued to plaintiffon Augtst24,2001; it is unclear whether this

trailer was already present on the leased site or was subsequently moved there. The lease

provided that plaintiff was permitted to occupy the trailer on the leased site for only 180 days

I The court derives the facts in this section from plaintiffs complaint and the exhibits

attached to the complaint.
each calendar year and that plaintiffcould not sell the trailer, with the trailer to remain on site,

without the permission of the concessionaire.

In March 2006, plaintiff contemplated selling the trailer to her son. She therefore

obtained an appraisal, which valued the trailer at 524,448. However, her son decided that he did

not want to purchase the trailer, which led to plaintiff s decision to sell the trailer to a third party.

Before she could do so, plaintiff was provided notice, on August 6,2006, that her monthto-month tenancy was being terminated by the concessionaire effective September 30, 2006. The

concessionaire subsequently initiated eviction proceedings, and after a headng on January 16,

2007, a Nevada court granted a summary eviction. The court stayed the eviction until February

7 ,2007 , to allow plaintiff to remove her trailer from the leased site. Plaintiff did not move the

trailer, and the concessionaire placed a landlord's lien on it. The lien was satisfied on September

7, 2007 , when the concessionaire purchased the trailer at auction. Title to the trailer was

officially transferred to the concessionaire on December 17 ,2007 . The trailer was subsequently

dismantled and moved to another part ofthe trailer village-what plaintiff refers to as the

graveyard-on September 26,2008. Plaintiff was never granted permission to sell her trailer on

site to a third party.

Plaintiff has filed several lawsuits challenging the termination ofher lease, the

subsequent eviction, and the disposition ofher trailer,2 including an earlier lawsuit in the United

States Court of Federal Claims ("Court of Federal Claims").3 In this latter lawsuit, plaintiff

alleged that she was restricted from selling her trailer on site, resulting in a Fifth Amendment

taking. After reviewing the parties' briefs, the court in that case dismissed plaintiffs complaint

lor failure to state a claim upon which it could grant reliefbecause plaintiff did not establish that

she had a compensable right to sell her trailer on site. Final judgment issued.

The claims asserted by plaintiff in this lawsuit echo those in her earlier lawsuit in this

court. Specifically, in her January 27 ,2014 complaint, plaintiff alleges that defendant interfered

with her rights to occupy her trailer on the leased site for 180 days per year and to sell her trailer

on site. She further contends that by allowing the termination of her lease, eviction, and

disposition ofher trailer, defendant took her properry without just compensation in violation of

the Fifth Amendment and violated her rights to due process and equal protection under the

Fourteenth Amendment. She seeks $75,000 in damages, attorney's fees and costs, and any other

compensation deemed just and proper. Along with her complaint, plaintiff filed an application to

proceed in forma pauperis. She subsequently filed a motion for the appointment of counsel on

her behalf.

2 Some of these lawsuits resulted in unpublished decisions. See. e.g., Scrase v. Forever

Resorts, No. 2:12-cv-00983-KJD-PAL, 2013 WL 3198339 (D. Nev. June 21,2013); Scrase v.

Dickinson, No.2:09-cv-02398-RLH-GWF,20l I WL 3714632 (D. Nev. Attg.24,20ll).

3 See Scrase v. United States, No. l2-056C, 2Ol2WL 1645335 (Fed. Cl. May 10,2012).

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Defendant moves to dismiss plaintiff s complaint on two grounds. First, under RCFC

l2(bXl), defendant contends that the court lacks jurisdiction to entertain plaintiff s claims

because her complaint was untimely. Second, under RCFC 12(bX6), defendant eontends that

plaintiff s claims are baned urder the doctrine of res judicata. The parties have fully briefed

defendant's motion-plaintiff filed a response, defendant filed a reply, and plaintiff, with the

court's permission, filed a "second response." Finding oral argument unnecessary, the court is

prepared to rule.

II. PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL

At the close of briefing on defendant's motion to dismiss, plaintiff filed a motion

requesting that the court appoint counsel on her behalf. The Court of Federal Claims "has the

ability to cause the appointment ofcounsel in civil cases" pursuant to 28 U.S.C. $ 1915(e)(l).

Washington v. United States, 93 Fed. Cl.706,708 (2010). "However, that power should only be

exercised in extreme circumstances," such as "when quasi-criminal penalties or severe civil

remedies are at stake . . . ." Id. Such extreme circumstances are not present in this case.

Therefore. the court must denv olainti{fs motion.

III. DEFENDANT'S MOTION TO DISMISS

A, Standard of Review

In ruling on a motion to dismiss filed pursuant to RCFC 12(b), the court assumes that the

allegations in the complaint are true and construes those allegations in the plaintiffs favor.

Henke v. United States, 60 F.3d 795,797 (Fed. Cir. 1995). With respect to RCFC 12(b)(1), the

plaintiffbears the burden ofproving, by a preponderance ofthe evidence, that the court possesses

subject matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936);

Reynolds v. Army & Air Force Exch. Serv.,846F.2d746,748 (Fed. Cir. 1988). Although

complaints filed by plaintiffs proceeding p1q se are held to"less stringent standards than formal

pleadings drafted by lawyers," Haines v. Kemer, 404 U.S. 519, 520-21 (1972), a p1q se plaintiff

is not excused from meeting basic jurisdictional requirements, Henke,60 F.3d at 799. Ifthe

court finds that it lacks subject matter jurisdiction over a claim, RCFC l2(hX3) requires the court

to dismiss that claim.

A claim that survives ajurisdictional challenge remains subject to dismissal under RCFC

l2(b)(6) if it does not provide a basis for the court to grant relief. Lindsa}, v. United States, 295

F.3d 1252, 1257 (Fed. Cir.2002) ("A motion to dismiss . . . for failure to state a claim upon

which reliefcan be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy."). "[O]nce a claim has been stated adequately, it may be supported by

showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v.

Twombly, 550 U.S. 544,563 (2007). Indeed, "[t]he issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."

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Scheuer v. Rhodes,4l6 U.S. 232,236 (1974), ovemrled on other grounds by Harlow v.

Fitzgerald, 457 U.S. 800, 814-19 (1982).

B. Subject Matter Jurisdiction

Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See

Steel Co. v. Citizens for a Better Env'1, 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 of announcing the fact and

dismissing the cause." Ex narte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties 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 ofthe Court ofFederal 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. King,395 U.S. 1,4 (1969).

Further, "[w]hen waiver legislation contains a statute of limitations, the limitations provision

constitutes a condition on the waiver of sovereign immunity." Block v. North Dakota ex rel. Bd.

ofUniv. & Sch. Lands,461 U.S.273,287 (1983).

The Tucker Act, the principal statute goveming the jurisdiction of this court, waives

sovereign immunity for claims against the United States, not sounding in tort, 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)(l) (2012). In addition, any claim againsr

the United States filed in the Court of Federal Claims must be "filed within six years after such

claim first accrues." Id. $ 2501;see also John R. Sand & Gravel Co. v. United States, 552 U.S.

130, 133-35 (2008) (providing that the limitations period set forth in 28 U.S.C. g 2501 is an

"absolute" limit on the ability of the Court of Federal Claims to reach the merits of a claim).

C. The Court Lacks Jurisdiction to Entertain Claims Under the Fourteenth Amendment

Although plaintiff s primary claim arises under the Fifth Amendment, plaintiff also

alleges that defendant violated her due process and equal protection rights under the Fourteenth

Amendment. However, the court lacks jurisdiction to entertain such claims because the

Fourteenth Amendment is not a money-mandating constitutional provision. See LeBlanc v.

United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) ("[T]he Due Process Clauses ofthe Fifth and

Fourteenth Amendments [and] the Equal Protection Clause of the Fourteenth Amendment . . .

[are not] a sufficient basis forjurisdiction because they do not mandate payment ofmoney by the

govemment."). Thus, these claims must be dismissed.

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D. Plaintiff s Complaint Is Untimely

The court possesses jurisdiction to entertain Fifth Amendment takings claims, but may

exercise that jurisdiction only iflhe claims are filed within six years of their accrual. "A claim

first accrues within the meaning ofthe statute of limitations when all the events have occuned

which fix the liability of the Govemment and entitle the claimant to institute an action." Brown

Park Estates-Fairfield Dev. Co. v. United States,127 F.3d1449,1455 (Fed. Cir. 1997) (intemal

quotation marks omitted). "A claimant under the Fifth Amendment must show that the United

States, by some specific action, took a private property interest for a public use without just

compensation. Therefore, a claim under the Fifth Amendment accrues when that taking action

occurs." Alliance of Descendants of Tex. Land Grants v. United States,37 F.3d 1478, l48l

(Fed. Cir. 1994) (citation omitted).

Here, plaintiff alleges that the termination ofher lease on September 30, 2006, her

eviction on February '7 ,2007 , and the transfer oftitle to her trailer on December 17,2007,

resulted in the uncompensated taking ofher property. The last ofthese events-the transfer of

title terminated plaintiff s properly interest in the trailer. Because possession of a property

interest is a necessary prerequisite to establishing a Fifth Amendment taking, any action by

defendant (through the concessionaire) after December 17,2007, could not have constituted a

Fifth Amendment taking. See Air Peeasus of D.C.. Inc. v. United States,424F.3d1206,\2\2-

l3 (Fed. Cir. 2005) (noting that to establish the occunence of a Fifth Amendment taking, a

plaintiff must show that he or she possesses a valid property interest and that the government's

action "'amounts to a compensable taking of that property interest. "' (quoting Am. Pelagic

Fishing Co. v. United Srates,379 F.3d 1363,1372 (Fed. Cir. 2004))). Accordingly, the latest

date on which plaintiff s Fifth Amendment taking claim could have accrued was December 17,

2007. Because the complaint was filed on January 27,2014, more than six years later, it must be

dismissed as untimely.

E. Plaintiff s Complaint Is Barred Under the Doctrine of Res Judicata

Even if plaintiff timely filed her complaint, it would be subject to dismissal pursuant to

the doctrine of res judicata. Res judicata, as the term is commonly used, encompasses the related

concepts of claim preclusion and issue preclusion. Nasalok Coating Com. v. Nylok Com., 522

F.3d 1320, I 323 (Fed. Cir. 2008); Sham Kabushiki Kaisha v. Thinksharp. Inc., 448 F.3d I 368,

1370 (Fed. Cir. 2006). "Claim preclusion refers to the effect of a judgment in foreclosing

litigation ofa matter that never has been litigated, because of a determination that it should have

been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and

bar." Misra v. Wanen City Sch. Dist. Bd. of Educ., 465 U.S. 75,77 n.\ (1984). In contrast,

"[i]ssue preclusion refers to the effect ofajudgmenl in foreclosing relitigation ofa matter that

has been litigated and decided. This effect also is referred to as direct or collateral estoppel." Id.

(citation omitted). The latter concept is applicable in this case.
To establish issue preclusion, the following four elements must be satisfied:

(l) the issue is identical to one decided in the first action; (2) the issue was

actually litigated in the first action; (3) resolution ofthe issue was essential to a

final judgment in the first action; and (4) plaintiffhad a full and fair opportunity

to litigate the issue in the first action.

In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994). Issue preclusion is properly raised in an

RCFC12(bX6)motion. CoparPumiceCo.v.UnitedStates, 112Fed.Cl.515,527(2013)

In both this case and the case she previously filed in the Court of Federal Claims, plaintiff

alleged a Fifth Amendment taking by the United States arising from the termination of her lease,

her eviction, and the disposition ofher trailer. Further, after providing plaintiff a full opportunity

to be heard, the court in the earlier lawsuit dismissed her complaint, issuing a final judgment on

merits. The elements ofissue preclusion have therefore been satisfied. Thus, if the court

possessed jurisdiction to entertain plaintiffls claims, it would be required to dismiss plaintiff s

complaint for failure to state a claim upon which reliefcould be granted.

IV. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff filed, concurrent with her complaint, an application to proceed in forma

pauperis. Pursuant to 28 U.S.C. $ 1915, the Court of Federal Claims may waive filing fees and

security under certain circumstances. See 28 U.S.C. $ 1915(aXl); see also Hayes v. United

States, 71 Fed. Cl. 366, 366-67 (2006) (concluding that 28 U.S.C. $ 1915(a)(1) applies to both

prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma p4gpglig must submit

an affidavit that lists all oftheir assets, declares that they are unable to pay the fees or give the

security, and states the nature of the action and their beliefthat they are entitled 10 redress. 28

U.S.C. $ 1915(a)(1). Here, plaintiff has satisfied all three requirements. Accordingly, the court

grants plaintiffls application and waives her filing fee.

V. CONCLUSION

For the reasons set forth above, the court DENIES plaintiffs motion for appointment of

counsel and GRANTS plaintiffs application to proceed in forma pauperis. In addition, the court

GRANTS defendant's molion to dismiss and DISMISSES plaintiff s complaint for lack of

jurisdiction. No costs. The clerk shall enterjudgment accordingly.

IT IS SO ORDERED.

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