# Jfn tbe Wniteb ~tates <tCourt of jf 

# eberal <tClaims

No. 18-561C (Filed October 30, 2018) NOT FOR PUBLICATION



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

### * MARCO M. TORRES, 

### * * Plaintiff, 

### * *

v. 

### * * THE UNITED STATES, 

### * * Defendant. 

### * 

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



### ORDER

The government has moved to dismiss a complaint brought by Marco M. Torres for lack ofsubject-matterjurisdiction under Rule 12(b)(l) ofthe Rules ofthe Court ofFederal Claims (RCFC) and for failure to state a claim under RCFC 12(b)(6). In his rambling complaint, Mr. Torres seemingly objects to the United States Supreme Court's treatment ofa petition for a hearing or rehearing enbane that he apparently (and inaptly) filed onAugust 28, 2017, under the Federal Rules ofAppellate Procedure. Compl. at 2. Plaintiffdoes not allege any facts concerning himself, and primarily muses whether the Supreme Court hasjurisdictionto review its own decisions to correct such problems as due process violations, occasionally referencing the Seventh, Ninth, and FourteenthAmendments and equalprotection. 

### See Compl. at 4-16. For the reasons stated below, the Court finds that it lacks subject-matterjurisdiction over plaintiff's claims.

On April 16, 2018, the Clerk's office received a complaint from plaintiff, representing himself, along with an application to proceed 

### informapauperis. 1 Plaintiffhas, since 2003, filed at least ten suits in the U.S. District Court for the Middle District ofFlorida and has been sanctionedby that court as a "frequent filer offrivolous actions, [who] often sues thejudiciary." Def.'s Mot. to Dismiss (Def.'s

1 The application submitted by plaintiffis incomplete. Within 28 days ofthe date ofthis order, Mr. Torres shall file either a complete application or the required filing fee.

7017**262 □** **□□□□** 7637 4631Mot.), App. at 12 (Order, 

### Torres v. Roberts, Case no. 8:17-mc-15-T-23TGW (M.D. Fla. Feb. 27, 2017)). The government filed a motion to dismiss this case on June 15, 2018. In its motion, the government maintains that plaintiff's case is barred by 

### res judicata, due to a district court dismissal ofa case he had brought against the individualjustices ofthe Supreme Court challenging their denial ofhis petition for

a writ ofcertiorari. Def.'s Mot. at 3, 5-7. The government also argues that the case should be dismissed because Mr. Torres failed to follow a prior order2 from the district court, 

### id. at 5-8, and that this court does not havejurisdictionto hear plaintiff's case, 

### id. at 8-10.

On August 13, 2018, one month after the deadline for responding to the government's motion, plaintifffiled a motion for a more definite statement under RCFC 12(e), explaining that he does not understand the four paragraphs stating the issues presented by the government's motion, as well as the two pages ofthe motion concerning the standard ofreview. Pl.'s Mot. for More Definite Statement, ECF No. 7, at 1-2. But the statement ofissues is more fully explicated in the rest of defendant's motion, 

### see Def.'s Mot. at 5-10 and, unlike Mr. Torres's complaint, the standard ofreview pages are not even remotely vague or ambiguous. Plaintiff's motion is accordingly 

### DENIED.

Also onAugust 13, the Clerk's Office received a document from plaintiff which was entitled "A Writ ofObjection to the Defendant['s] Motion to Dismiss for Lack of Subject Matter Jurisdiction," which the Court allowed to be filed as an untimely response to the government's motion. 

### See Resp. to Mot., ECF No. 8 at 1- 12, 14. Although it is hard to make sense ofhis arguments, plaintiffseems to contend that 

### resjudicata cannot apply because he never received a jurytrial in the district court. 

### Id. 6-7. Mister Torres reiterates that he does not understand defendant's argument regarding his failure to provide our court with a copy ofthe district court order. 

### Id. at 7-8. As the basis for our court'sjurisdiction, plaintiff cites the First Amendment's right to petition government; the Little TuckerAct, 28 U.S.C. 

### § 1346, which concerns thejurisdiction ofdistrict courts; a procedural statute regarding our court, 28 U.S.C. § 2503(b); and the organic statute providing for our court's composition, 28 U.S.C. § 171. Resp. to Mot. at 6. And he appears to be arguing that his claim against the Supreme Court is a civilrights actionbrought under 42 U.S.C. § 1983. 

### See id. at 10, 12. In the government's reply, among other things, it correctly points out that the provisions identified byMr. Torres do not provide a basis for ourjurisdiction, Def.'s Reply to Pl.'s Resp. at 2 n.2, and that our

2 The government attaches to its motion a copy ofa 2017 order from the Florida court requiring the plaintiffto pay monetary sanctions ifhe again files a frivolous action in federal court. Def.'s Mot., App. at 13. That court also required him to file

a copy ofthe 2017 order with all future filings in federal court, which plaintiffhas
not done here.

-2-court does not havejurisdiction over civil rights claims under 42 U.S.C. 

### § 1983, 

### id. at 3 (citing

### McCauley v. United States, 38 Fed. Cl. 250, 265 (1997)).
Although the government's primary argument is that the case shouldbe dismissed due to the application of 

### resjudicata, Def.'s Mot. at 5-8, several factors counsel against reachingthis result. First, defendant is basing this aspect ofits motion on the preclusive effect ofa district court decision finding a case against the individualjustices to be frivolous and thus not stating claims for relief. 

### Id. at 6. But such a question is thus notjurisdictionalin nature, and the Court must address jurisdictional issues first. 

### See Chisolm v. United States, 82 Fed. Cl. 185, 192 (2008) (citing 

### Steel Co. v. Citizensfor a BetterEnv't, 523 U.S. 83, 93-95 (1998)). In addition, with the complaint in the other case not having been filed, it is difficult for this court to compare the matters alleged. Finally, it seems unlikely that the Supreme Court's treatment ofa petition allegedly received onAugust 28, 2017, 

### see Compl. at 2, could have been at issue in a decision dated February 27, 2017, 

### see Def.'s Mot., App. at 13.3

The Court need never reach the above-discussed grounds, for it is clear that subject-matterjurisdiction is lacking in this case. On the first page ofthe complaint, Mr. Torres identifies the Tucker Act, 28 U.S.C. § 149l(a)(l), as the

source ofourjurisdiction. But under that act, we are empowered only to hear claims ofviolations ofconstitutionalprovisions that mandate the payment ofmoney when violated. 

### See United States v. Mitchell, 463 U.S. 206, 216-17 (1983); 

### Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("To be cognizable under the TuckerAct, the claim must be for money damages against the United States, and the substantive law must be money-mandating.").

To the extent the complaint canbe comprehended, it contains references to due process, equal protection, and the Seventh and NinthAmendments. 4 But none ofthe provisions identified by plaintiffare money-mandating, and thus their violation would not be within our court'sjurisdiction. 

### See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (FifthAmendment Due Process or Equal

3 Concerning the failure ofMr. Torres to include a copy ofthe district court order with his complaint in this case, it is difficult to see how that canbe a basis for dismissal as opposed to an act ofcontempt for the district court.

4 Plaintiffalso cites the FourteenthAmendment, presumably the first section, which does not restrict the federal government. 

### See San FranciscoArts 

### &Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542 n.21 (1987). The Court

assumes that plaintiffintended to cite the Due Process clause and the so-called equal protection component ofthe FifthAmendment.

-3-Protection); 5 

### Webster v. United States, 74 Fed. Cl. 439, 444 (2006) (Seventh Amendment); 

### Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010) (Ninth Amendment). In his response to the government's motion, Mr. Torres also cites the FirstAmendment and 42 U.S.C. § 1983. Resp. toMot. at 6, 10, 12. But claims basedon those provisions are also not within ourjurisdiction. 

### United States v. Connolly, 716 F.2d 882, 887 (Fed

. Cir. 1983) (FirstAmendment); 

### McCauley, 38 Fed. Cl. at 265 (section 1983).

More fundamentally, however, our court does nothavejurisdictionto review the decisions ofany otherfederal court, much less the Supreme Courtofthe United States. 

### Hicks v. United States, No. 10-793C, 2011 WL 3319563, at *3 (2011) (holdingthat our court lacksjurisdiction over decisions ofthe Supreme Court); 

### see also Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir

. 1994) (holdingthatthis court "does nothavejurisdictionto review the decisions ofdistrict courts

... relatingto proceedings before those courts"); 

### Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) (explainingthat this courtis not an appellate tribunal, and "does not havejurisdictiontoreview the decisions ofdistrict courts"); 

### Bafford v. United States, No. 09-030, 2009 WL 2391785, at *4 (Fed. Cl. Aug. 3, 2009) (explaining that this court does not havejurisdictionto review the decisions of federal courts ofappeal). Because Mr. Torres is complaining aboutjudicial decisions ofthe Supreme Court, there is nothing our court can do abouthis matter, and itwould be futile to allow him his requested opportunityto amend the complaint

. Accordingly, the government's motion to dismiss this case for lack ofsubjectmatterjurisdiction, under RCFC 12(b)(l), is 

### GRANTED.6 The Clerk shall close the

case.



### IT IS SO ORDERED.

5 The Due Process Clause ofthe FifthAmendment may onlybe a basis for our jurisdiction when a claim concerns an illegal exaction. 

### SeeAerolineasArgentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); 

### Coleman v

. United States, No. 13-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014)

.

G Becausejurisdictionis lacking, the RCFC 12(b)(6) portions ofgovernment's motion are 

### DENIED as moot, withoutprejudice. The Court notes, however, that Mr. Torres fails to allege anythingthatthe Supreme Court has done to him, much less anything resembling a cognizable claim.

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