United States Court of Appeals 

for the Federal Circuit ______________________

DERRICK M. ALLEN, SR.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2023-1305

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:22-cv-01793-AOB, Judge Armando O. Bonilla.

______________________

Decided: December 18, 2023

______________________

DERRICK MIKE ALLEN, SR., Washington, DC, pro se.

 JOSHUA MOORE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, for defendant-appellee. Also represented by BRIAN M. BOYNTON,

TARA K. HOGAN, PATRICIA M. MCCARTHY.

______________________

Before DYK, SCHALL, and STARK, Circuit Judges.

PER CURIAM.

Derrick Allen filed a pro se complaint in the Court of 

Federal Claims alleging that the Clerk’s Office in the 

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2 ALLEN v. US

United States District Court for the Middle District of 

North Carolina (“Middle District”) failed to send him documents related to cases he had filed in the Middle District. 

Acting sua sponte, the trial court dismissed Mr. Allen’s 

complaint for lack of subject matter jurisdiction and imposed an injunction limiting his ability to file future suits. 

We affirm the dismissal but vacate the sanction, which the 

Court of Federal Claims may consider re-imposing after 

providing Mr. Allen notice and an opportunity to be heard.

I

Mr. Allen’s complaint in the Court of Federal Claims 

alleged that the Middle District’s Clerk of Court had violated unspecified rights by failing to send Mr. Allen documents from other cases he had also filed in the Middle 

District. See App’x 8.1 As relief, Mr. Allen sought $50,000 

in damages. He did not identify any statutory or other basis for his cause of action. 

The Court of Federal Claims reviewed Mr. Allen’s complaint and sua sponte determined it lacked subject matter 

jurisdiction. Because Mr. Allen failed to cite a money-mandating statute and alleged a tort claim, the court held he 

had not stated a claim within the scope of the limited jurisdiction of the Court of Federal Claims. The court then set 

out Mr. Allen’s extensive history of “frivolous litigiousness” 

and determined, sua sponte, that he had repeatedly filed 

suits “without any consideration of the jurisdiction of [the 

Court of Federal Claims] or other federal courts.” App’x 2-

4. In particular, the trial court observed that Mr. Allen had 

1 See Allen v. Ewell, No. 19-766 (M.D.N.C. filed July 

29, 2019; dismissed Dec. 5, 2022), aff’d, No. 22-325 (4th Cir.

Mar. 21, 2023); Allen v. Birkhead, No. 22-1002 (M.D.N.C.

filed Nov. 21, 2022; dismissed without prejudice Mar. 6, 

2023). References to App’x indicate the appendix attached 

to the government’s informal brief.

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ALLEN v. US 3

filed at least 24 federal cases in recent years, all of which 

had been “summarily dismissed for lack of jurisdiction, 

frivolousness, maliciousness, failure to state a claim, and 

Federal Rule of Civil Procedure 8 (General Rules of Pleading) deficiencies.” App’x 2. Among these cases were seven 

that had been filed in the Court of Federal Claims, five of 

which were dismissed for lack of subject matter jurisdiction 

(the other two having been dismissed by stipulation or for 

failure to prosecute); three of those were appealed to and 

affirmed by us. See Gov’t Informal Br. at 9 n.3 (listing 

cases).

Based on this history, as well as the case before it, the 

Court of Federal Claims entered “the following anti-filing 

injunction:”

Effective immediately, plaintiff is ENJOINED 

from filing new complaints pro se in this Court 

without first obtaining leave to file from the Chief 

Judge. If plaintiff seeks to file a new complaint in 

this Court, he shall submit a Motion for Leave to 

File and explain why the new complaint is timely 

and properly before this Court. Any motion for 

leave to file a new complaint must also include as 

an attachment a full complaint that satisfies the 

requirements of RCFC 8.

App’x 4. The anti-filing injunction does not apply to complaints signed by a licensed attorney. See id.

Mr. Allen timely appealed. We denied the government’s motion for summary affirmance. ECF No. 16 (Apr. 

6, 2023). Instead, we ordered the government to file a response brief and address “whether the anti-filing injunction order is improper for lack of notice and an opportunity 

to be heard.” Id. The government submitted a brief addressing this issue. ECF No. 18 (May 8, 2023). We have 

jurisdiction over Mr. Allen’s appeal from the final decision 

of the Court of Federal Claims under 28 U.S.C. 

§ 1295(a)(3).

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4 ALLEN v. US

II

We review the trial court’s dismissal for lack of subject 

matter jurisdiction de novo. See Diaz v. United States, 853 

F.3d 1355, 1357 (Fed. Cir. 2017). It is Mr. Allen’s burden 

to show, by a preponderance of the evidence, that the Court 

of Federal Claims had jurisdiction. See id. We agree with 

the Court of Federal Claims that it lacked subject matter 

jurisdiction.

Mr. Allen’s claim is that the Clerk’s Office of the Middle 

District failed to send him certain documents. His complaint cites the Tucker Act, which gives the Court of Federal Claims 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 for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. 

§ 1491(a)(1) (emphasis added). The Tucker Act does not 

create substantive rights, so a plaintiff filing in the Court 

of Federal Claims “must identify a separate source of substantive law that creates the right to money damages.” 

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 

2005) (en banc). “[T]he absence of a money-mandating 

source [is] fatal to the court’s jurisdiction under the Tucker 

Act.” Id. at 1173.

As the trial court rightly found, Mr. Allen “fails to cite 

a money-mandating statute or qualifying provision of law.” 

App’x 2. Additionally, Mr. Allen’s complaint is “akin to a 

customer-service complaint” and “sounds in tort,” id., but 

“[t]he Court of Federal Claims . . . lacks jurisdiction over 

tort actions against the United States,” Brown v. United 

States, 105 F.3d 621, 623 (Fed. Cir. 1997).

On appeal, for the first time in this case, Mr. Allen 

raises various constitutional rights he contends the trial 

court violated, including his Eighth Amendment right to be 

free from cruel and unusual punishment, a purported Sixth 

Amendment right to a response to his complaint, and 

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ALLEN v. US 5

alleged rights to a jury trial. See Appellant Br. at 1-2. In 

addition to these claims having been forfeited by not being 

asserted in the trial court, see Fresenius USA, Inc. v. Baxter

Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party 

fails to raise an argument before the trial court, or presents 

only a skeletal or undeveloped argument to the trial court, 

we may deem that argument waived on appeal . . . .”), they 

are also frivolous, as Mr. Allen fails even to try to state a 

plausible basis for finding that any of these amendments 

are money-mandating in the circumstances of this case.2

Accordingly, we affirm the trial court’s dismissal of Mr. 

Allen’s complaint.

III

“This court reviews the lower court’s use of its inherent 

power to impose sanctions under the abuse of discretion 

standard.” Arunachalam v. Int’l Bus. Machs. Corp., 989 

F.3d 988, 996 (Fed. Cir. 2021) (internal quotation marks 

omitted). “An abuse of discretion occurs when a [trial]

court’s decision commits legal error or is based on a clearly 

erroneous assessment of the evidence.” Univ. of Utah 

v. Max-Planck-Gesellschaft zur Foerderung der Wissenschaften e.V., 851 F.3d 1317, 1322 (Fed. Cir. 2017); see also 

2 We have held in a precedential opinion that the 

“Court of Federal Claims does not have jurisdiction over 

claims arising under the Eighth Amendment, as the Eighth 

Amendment is not a money-mandating provision.” Trafny 

v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (internal quotation marks omitted). We have reached similar 

conclusions regarding the Sixth and Seventh Amendments 

in nonprecedential opinions. See Smith v. United States, 

36 F. App’x 444, 446 (Fed. Cir. 2002) (nonprecedential) 

(holding Sixth Amendment is not money-mandating);

Brashear v. United States, 776 F. App’x 679, 682 (Fed. Cir. 

2019) (nonprecedential) (same for Seventh Amendment).

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6 ALLEN v. US

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 

1378 (Fed. Cir. 2009).

In denying the government’s motion for summary affirmance without prejudice, we also sua sponte directed the 

government to address whether the Court of Federal 

Claims had improperly imposed the anti-filing injunction 

without providing Mr. Allen notice and an opportunity to 

be heard. Although we do not ordinarily consider issues 

that are not presented by the parties on appeal, see, e.g., In 

re Google Tech. Holdings LLC, 980 F.3d 858, 864 (Fed. Cir. 

2020) (“The burden lies with the applicant to present this 

argument in the initial instances.”); Rodriguez v. Dep’t of 

Veterans Affs., 8 F.4th 1290, 1296 (Fed. Cir. 2021)

(“[I]ssues not addressed in the argument section of a 

party’s opening brief are considered [forfeited] . . . .”), we 

sometimes make an exception for an appellant who was not 

represented by counsel in the trial court, see, e.g., Ledford 

v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002) (“Under such circumstances, we would normally consider Mr. 

Ledford to have [forfeited] any arguments asserting jurisdiction . . . . However, because Mr. Ledford is proceeding

pro se, we will also review the trial court’s dismissal of his 

[other] requests . . . .”); see also Singleton v. Wulff, 428 U.S. 

106, 121 (1976) (holding that federal appellate courts may 

raise issues sua sponte where “injustice might otherwise 

result”) (internal quotation marks omitted). We find it appropriate here to evaluate whether Mr. Allen had a constitutional right to be provided notice and an opportunity to 

be heard before he was subjected to an anti-filing injunction. Reviewing this question of law, we conclude that Mr. 

Allen must be provided such process. See Highmark Inc. v. 

Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 & n.2

(2014) (“The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error . . . .”); Univ. of Utah, 851 F.3d at 1322

(same).

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ALLEN v. US 7

Federal courts have inherent power to sanction badfaith conduct, including vexatious litigation. See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). “A court must, 

of course, exercise caution in invoking its inherent power,” 

and in doing so, “it must comply with the mandates of due 

process.” Id. at 50. Due process requires, at minimum, 

that “deprivation of life, liberty or property by adjudication 

be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover 

Bank & Tr. Co., 339 U.S. 306, 313 (1950). It is well-settled 

that access to federal courts is a fundamental right, which 

cannot be infringed without compliance with due process. 

See Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 

148 (1907) (holding that access to courts is “the right conservative of all other rights, and lies at the foundation of 

orderly government”); see also In re Oliver, 682 F.2d 443, 

446 (3d Cir. 1982) (“Access to the courts is a fundamental 

tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the 

plaintiff may be.”).

We have not previously determined whether imposition of an anti-filing injunction must be preceded by notice 

and an opportunity to be heard. The government points us 

to a nonprecedential decision in which we affirmed a sanctions order despite the absence of any indication such protections were provided to the appellant. See Straw 

v. United States, No. 2021-1600, 2021 WL 3440773 (Fed. 

Cir. Aug. 6, 2021). There, however, there is no indication 

that the procedural issues were raised; the appeal was

seemingly limited to the question of whether the litigant 

had behaved frivolously. See id. at *5-6.

Several other circuits have addressed the question and 

have concluded that a litigant is entitled to notice and an 

opportunity to be heard before being subjected to an antifiling injunction. See In re Powell, 851 F.2d 427, 431 (D.C.

Cir. 1988); In re Hartford Textile Corp., 613 F.2d 388, 390 

(2d Cir. 1979); Brow v. Farrelly, 994 F.2d 1027, 1038 (3d 

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8 ALLEN v. US

Cir. 1993); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 

812, 819 (4th Cir. 2004); De Long v. Hennessey, 912 F.2d 

1144, 1147 (9th Cir. 1990). Today we align ourselves with 

our sister circuits. Thus, we hold that before a trial court 

may impose an anti-filing injunction, the litigant must be 

provided with notice that such a sanction is being considered and an opportunity to be heard on the question of 

whether it should be imposed. Because Mr. Allen was not 

provided such process, we vacate the Court of Federal 

Claims’ injunction and remand for further proceedings.

In arguing for affirmance, the government suggests 

that the trial court did not actually impose an anti-filing 

injunction. We disagree. The government would have us 

focus on the fact that the trial court’s order permits Mr. 

Allen to seek leave to file a new pro se case and does not 

preclude him from filing a new counseled case. While these 

aspects of the order mean that the courthouse doors are not 

closed to Mr. Allen, the order nonetheless still imposes 

meaningful restrictions on his access. Such limitations 

must not only be warranted based on the record but also 

may only follow the provision of necessary procedural protections.

The government next argues that even if the Court of 

Federal Claims’ order is an anti-filing injunction, and notice is required, Mr. Allen had sufficient notice based on 

warnings provided by other courts. Most pertinently, the 

Middle District had “strongly cautioned” Mr. Allen “not to 

file claims lacking a legal and/or factual basis in violation 

of Federal Rule of Civil Procedure 11,” and added that 

“[s]anctions, including a pre-filing injunction, are options 

available to the court to address continued frivolous filings.” Allen v. Suntrust Bank, No. 20-293 (M.D.N.C. Aug. 

21, 2020), ECF No. 10, aff’d, 832 F. App’x 820 (4th Cir.

2021) (per curiam), cert. denied, 141 S. Ct. 2659 (2021). In 

another of Mr. Allen’s cases, the Fourth Circuit had issued 

an order directing him to show cause as to why he should 

not be sanctioned, and thereafter enjoined him from “filing 

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ALLEN v. US 9

any civil appeal in this court [i.e., the Fourth Circuit] unless a district court judge has certified that the appeal is 

not frivolous.” Allen v. Coffee, No. 21-1934 (4th Cir. 2022), 

ECF Nos. 10, 14. These courts let Mr. Allen know that his 

litigation conduct could result in limits being placed on his 

ability to file cases in the Middle District and in the Fourth 

Circuit, but they did not put him on notice that he might 

also be subject to sanction in other courts, including the 

Court of Federal Claims. Nor, plainly, did the earlier warnings or orders put Mr. Allen on notice that he might be subjected to sanctions in other courts without first receiving 

notice and an opportunity to be heard by those additional 

courts. Mr. Allen, therefore, did not receive sufficient notice. See generally In re Prudential Ins. Co. Am. Sales Prac. 

Litig. Agent Actions, 278 F.3d 175, 191 (3d Cir. 2002)

(“[P]articularized notice is required to comport with due 

process . . . [and] usually require[s] notice of the precise 

sanctioning tool that the court intends to employ.”) (internal citation and quotation marks omitted).

Finally, the government emphasizes that there is nothing abusive in the Court of Federal Claims’ discretionary 

decision to sanction Mr. Allen. It echoes the trial court’s 

findings that “Mr. Allen’s frivolous litigiousness warrants 

the imposition of sanctions.” App’x 2. Because Mr. Allen 

was provided neither notice nor an opportunity to be heard, 

the issue of the Court of Federal Claims’ exercise of its discretion is not yet ripe. On remand, the trial court is free to 

consider again imposing an anti-filing injunction, provided 

that it first accords Mr. Allen his rights to notice and an 

opportunity to be heard.

Accordingly, we vacate the anti-filing injunction issued 

by the Court of Federal Claims and remand for further proceedings.

IV

We have considered Mr. Allen’s other arguments and 

find them unpersuasive. For the reasons stated, we affirm 

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10 ALLEN v. US

the Court of Federal Claims’ dismissal for lack of subject 

matter jurisdiction and vacate and remand its anti-filing 

injunction.

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED.

COSTS

No costs.

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