# IGINAL . Jfntbe Wntteb $->tates <!Court of jf 

# eberal <!Claims No. 17-310C Filed: August 03, 2017 

# FILED **************************************** 

## * 

## * MICHAEL C

. CHRISTEN,
Plaintiff ,

### prose,

v.
THEUNITED STATES,
Defendant. 

## * * * * 

## * * * 

## * * * * 

## * * * * **************************************** 

## AUG
- 3 2017 U

.S

. COURT OF FEDERAL CLAIMS
Rules ofthe United States Court of Federal Claims ("RCFC") 12(b)(l) (Jurisdiction), 12(b)(6) (Failure to State a Claim)

.

Michael C. Christen, Los Angeles, California, Plaintiff ,

### prose. Christopher Keith Wimbush, United States Department ofJustice, Civil Division, Washington, D
.C., Counsel for the Government. MEMORANDUM OPINIONAND ORDER GRANTING THE GOVERNMENT'S MOTIONTODISMISS BRADEN, Chief Judge. I. RELEVANT FACTUALBACKGROUND. 1 On March 6, 2017, Michael Christen filed a Complaint in the United States Court of Federal Claims, alleging that Mr. Christen and his company provided speech writing services to President George H.W. Bush and received assurances from contacts at ABC Television that the Government wouldpayfor his consulting work. Compl. 

## ii 4. The March 6, 2017 Complaint also alleges that Mr. Christen invented the "heat shield external tiles," a key component ofthe Space Shuttle Program. Compl. 

### if 4.

1 The relevant facts discussed herein were derived from the March 6, 2017 Complaint ("Compl. 

### i!if 1

- 5") and the attached exhibits ("Pl. Exs
.A-C")

.



### 7017 1450 DODO 1346 3882On, or about, March 18, 1993, Mr. Christen sent an invoice of $640,000 to the United States General Accounting Office for his consulting services and the inventions heprovidedto the National Aeronautics and Space Administration ("NASA"). Comp!. 

## i! 4. This invoice was never paid, but Mr. Christen claims that he negotiated with the Internal Revenue Services ("IRS") and reached a settlement agreementwiththe IRS to offsetthe invoice against his federal income taxes. Comp!. 

## i! 4. As a result, the IRS reduced Mr. Christen's federal tax obligation to zero for the tax years 1999-2004. Comp!. 

## i! 4., ExhibitB. "This settlementheldup the entiretimethe Republicans were in the White House and in charge ofthe Administration." Comp!. 

## i! 4. But, when the "Democrats took over" "a decade later," the IRS sent Mr. Christen notices offederal taxes due, in additionto penalties and interest. Comp!. 

## i! 4. Subsequently, Mr. Christen filed apetition in the United States Tax Court, butthat court "ruled against" Mr. Christen in 2016. Comp!. 

## ii 4. 

### II. PROCEDURAL HISTORY. On March 6, 2017, Mr. Christen ("Plaintiff') filed a Complaint in the United States Court ofFederal Claims alleging that the Government breached a contract and was unjustly emiched by Plaintiffs consulting work and use ofhis inventions without payment. Comp!. 

## iii! 1-5. On May!, 2017, the Government filed a Motion To Dismiss ("Gov'tMot.") the March 6, 2017 Complaint, pursuant to Rules of the United States Court of Federal Claims ("RCFC") 12(b)(l) and 12(b)(6). Therein, the Government argues that the court does not havejurisdiction to adjudicate the claims alleged in the March 6, 2017 Complaint, because:(!) Plaintiffhas failed to make a "non-frivolous allegation" that the claims alleged are based on a money-mandating source oflaw, i.e., a contract with the Government; (2) the claims alleged are otherwise barred by the statute of limitations; and (3) the United States Court of Federal Claims does not have jurisdiction to adjudicate unjust emichment claims against the Government. Gov't Mot. at 6-9. The Government adds that the March 6, 2017 Complaint shouldbe dismissed for failure to state a claim upon which reliefcan be granted, because Plaintifffails to plausibly allege any element of animplied-in-fact contract. Gov'tMot. at 10-11. On June 2, 2017, Plaintifffiled a Response ("Pl. Resp."). ECF No. 9. On June 13, 2017, the Government filed a Reply ("Gov't Reply"). ECF No. 10. 

### III. DISCUSSION. A. Jurisdiction. The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. 

### § 1491, to adjudicate "any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not soundingintort." 28 U.S.C. § 1491(a)(l). The Tucker Act, however, is "ajurisdictional statute; it does not create any substantive right enforceable against the United States for money damages

. . . . [T]he Act merely confersjurisdiction upon [the United States Court ofFederal Claims] wheneverthe substantiveright exists." UnitedStates v. Testan, 424 U.S. 392, 398 (1976).
2To pursue a substantive right under the Tucker Act, a plaintiffmust identify and plead an independent contractual relationship, Constitutional provision, federal statute, and/or executive agencyregulation that provides a substantive right to money damages. 

### See Toddv. UnitedStates, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdictionunder the TuckerActrequires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]"). Specifically, a plaintiffmust demonstrate thatthe source ofsubstantive lawupon which he relies "can fairly be interpreted as mandating compensation by the Federal Government." 

### United States v. Mitchell, 463 U.S. 206, 216 (1983) (quoting 

### Testan, 424 U.S. at 400). Plaintiff must also make "a non-frivolous allegation that [he] is within the class ofplaintiffs entitled to recover under the money-mandating source." 

### Jan's Helicopter Serv., Inc. v. FA.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008). 

### B. Relevant Legal Standards. 

### 1. Under RCFC 12(b)(l). A challenge to the United States Court ofFederal Claims' "generalpower to adjudicate in specific areas of substantive law

... is properly raised by a [Rule] 12(b)(l) motion[.]" 

### Palmer v. UnitedStates, 168 F.3d 1310, 1313 (Fed. Cir. 1999); 

### see also RCFC 12(b)(l) ("Every defense to a claim for reliefin any pleading must be asserted inthe responsive pleading

.... But a party may assert the following defenses by motion:(!) lack ofsubject-matterjurisdiction[.]"). When considering whether to dismiss an action for lack of subject matterjurisdiction, "a court must accept as true all undisputed facts asserted intheplaintiffscomplaintand drawall reasonable inferences in favor ofthe plaintiff." 

### Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). 

### 2. Under RCFC 12(b)(6). A challengeto the United States Court ofFederal Claims' "[ability] to exercise its general power with regard to the facts peculiar to the specific claim

... is raised by a [Rule] 12(b)(6) motion[.]" 

### Palmer, 168 F.3d at 1313; 

### see also RCFC 12(b)(6) ("Every defense to a claimforrelief in any pleading must be asserted in the responsive pleading

. . . . But a party may assert the following defenses bymotion:

... (6) failure to state a claimuponwhichreliefcanbe granted[.]"). When considering whether to dismiss an action for failure to state a claim, the courtmust assess whether "aclaimhas been stated adequately" and thenwhether "itmaybe supportedby [a] showing [ofJ any set of facts consistent with the allegations in the complaint." 

### Bell At!. Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiffs factual allegations must be substantial enoughto raise the right to relief"above the speculative level." Id. at 555. The court must accept all factual allegations in the complaint as true and make all reasonable inferences in favor ofthe plaintiff. Id. 

### 3. Standard OfReview ForPro Se 

### Litigants. The court is cognizant ofits obligation to liberally construe

### pro se plaintiffs' pleadings. 

### See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding thatthe "prosedocument is to be liberally construed"). 

### Proseplaintiffs' pleadings are held to a less stringent standardthan those oflitigants represented by counsel. 

### See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that

### pro se 3complaints, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by lawyers"). 

### C. The Government's May 1, 2017 Motion To Dismiss. 

### 1. The Government's Argnment. The Government arguesthat, inorderfor the United States Court ofFederal Claims to have jurisdiction, the March 6, 2017 Complaint must make a "non-frivolous allegation" that the claims are "based on a money-mandating source." Gov'tMot. at 6 (quoting Fisher v. UnitedStates, 402 F.3d 1167, 1172 (Fed. Cir. 2005)) (emphasis added). The general rule is that a complaintthat fails to allege facts sufficient to show a contract with the Government should be dismissed for failure to state a claim. Gov't Mot. at 7. There is an exception, however, "that permits dismissals on jurisdictional grounds iftheclaim is wholly insubstantial and frivolous." Gov'tMot. at 7 (quoting Lewis v. UnitedStates, 70 F.3d 597, 602 (Fed. Cir. 1995)) (internal quotation marks omitted). In this case, the March 6, 2017 Complaint fails to plausibly allege that Plaintiffperformed any work as part ofthe alleged contract with the Government, nor does it allege any "direct interactions" betweenPlaintiffand any individuals with the authorityto bind the Governmentincontract. Gov't Mot. at 8. Therefore, the court does not havejurisdictionto adjudicate Plaintiffsfrivolous claims. Gov't Mot. at 8. In addition, the claims alleged by the March 6, 2017 Complaint are timed barred, because the alleged breach ofcontract occurred more than six years ago. Gov't Mot. at 9. Moreover, the March 6, 2017 Complaint alleges an unjust emichment claim based on an equitable implied-inlaw contract. Gov't Mot. at 9. Since the Tucker Act does not waive sovereign immunity for implied-in-law claims, that claim should be dismissed. Gov't Mot. at 9. In the alternative, the Government moves to dismiss for failure to state a claim, because Plaintifffails to plausibly allege any element ofan implied-in-fact contract. Gov't Mot. at 10-11. 

### 2. PlaintifPs Response. Plaintiff responds that the claims alleged by the March 6, 2017 Complaint are timely, because the "clock starts for the statute oflimitations when a plaintiffbecomes aware his contract has been breached." PL Resp. at 2. Plaintiff did not know that the Government breached the settlement agreement until June 2, 2016, when the United States Tax Court entered a decision denying his July 8, 2014 petition. PL Resp. at 2.2 Therefore, the statute oflimitations should run from that date. PL Resp. at 5. With respect to the Government's arguments regarding a failure to allege the elements of a contract, Plaintiffresponds that "theAmericanBroadcastingCompany ["ABC"] hadassuredhim there was a contract with the federal government" and that Plaintiff "would be paid for the consulting work provided." PL Resp. at 2-3. Plaintiff adds that he negotiated the settlement agreement with an IRS employee, and this person "confer[ed] with her superiors at the IRS" and

2 In the June 2, 2017 Response, Plaintiffstates that he filed a petition in the United States Tax Court onJuly 8, 2014. PL Resp. at 7. 4"confirmedthat she was entering notes
... directly on the IRS computer system." Pl. Resp. at 12. But, the IRS has deleted all evidence related to that negotiation. Pl. Resp. at 12-13. 

### 3. The Government's Reply. The Governmentreplies thatPlaintiffs claims should be dismissed for lack of jurisdiction and are frivolous. Gov't Reply at 1. 

### 4. The Court's Resolution. Under the Tucker Act, "[e]very claim ofwhich the United States Comt ofFederal Claims hasjurisdiction shall be baiTed unless the petitionthereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. The United States Court ofAppeals for the Federal Circuit has held that "[c]laims accrue when the events giving rise to the Government's alleged liability have occurred and the claimant is or should be aware oftheir existence." Hopland Band of Pomo Indians v. UnitedStates, 855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Weddel v. Sec'yof Health & Human Servs., 100 F.3d 929, 931 (Fed. Cir. 1996) (defining the starting date of statute of limitations as "the date on which the wrong thatinjures the plaintiffoccurs."). The March 6, 2017 Complaint alleges that Plaintiffentered into a settlement agreement withthe Government, pursuant to whichthe Governmentreduced Plaintiffsfederal taxto zero in exchange for his past services for the Government. Comp!.**~** 4. The March 6, 2017 Complaint further alleges that the Government breached this agreement by assessing tax in 2009.3**Comp!.~** 4. As such, Plaintiffeither knew or should haveknown about the alleged breach in 2009. Comp!.**~** 4; see also HoplandBand, 855 F.2d 1577. But, Plaintiffdid not file his complaint until March 6, 2017, i.e., more than six years after 2009. Therefore, the claims alleged in the March 6, 2017 Complaint are time barred. In the June 2, 2017 Response, Plaintiffargues that the statute oflimitations should instead run from June 2, 2016, i.e., the date when the United States Tax Court "entered the decision against" him. Pl. Resp. at 2. Plaintiffs petition with the United States Tax Court, however, is irrelevant, because ithas no bearing on the date ofthe alleged breach. Therefore, the courthas determinedthatthe breach ofcontract claims alleged by theMarch 6, 2017 Complaint are untimely under 28 U.S.C. § 2501. As such, the court has determined that it does not have jurisdiction to adjudicate the March 6, 2017 Complaint. See Mildenberger 

### v. United States, 643 F.3d 938, 949 (Fed. Cir. 2011) (affirming the lack ofjurisdiction over the Plaintiffs claims "because they were filed outside the six-year limitations period pursuant to 28 

# u.s.c. § 2501.").

3 The March 6, 2017 Complaint alleges that the Government first assessed federal tax against Plaintiffwhen "the Democrats took over" a "decade" after 1999, i.e., in 2009.**Comp!.~** 4. 

### 5IV. CONCLUSION. Forthese reasons, the court grants the Government's May 1, 2017 MotionTo Dismiss. See RCFC 12(b)(l). Accordingly, the Clerk ofthe United States Court ofFederal Claims is directed to enterjudgment on behalfofthe Government. IT IS SO ORDERED.

6 

# sus.k.=RADEN ChiefJudge