ORIGINAL 

3Jn tbe Wniteb ~tates <!Court of jf eberal <!Claims 

BRIDGET ALLEN, 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant. 

No. 13-642C 

(Filed: July 15, 2014) 

UNREPORTED 

FILED 

JUL 1 5 2014 

U.S. COURT OF 

FEDERAL CLAIMS ) 

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Motion to dismiss for lack of subject 

matter jurisdiction, RCFC 12(b)(l); 

Motion to dismiss for failure to state 

a claim, RCFC 12(b)(6) 

~~~~~~~~~) 

ORDER DISMISSING CASE 

On September 4, 2013, pro se plaintiff ("plaintiff' or "Ms. Allen") filed a 

complaint in which she asserts that the United States has participated in a conspiracy to 

seize her property without just compensation, in violation of the Fifth Amendment of the 

United States Constitution. 1 Plaintiff has subsequently filed multiple motions to amend, 

supplement, and otherwise correct her complaint to add new allegations and legal 

contentions. See Docket Nos. 5 ("Notice of Errata" seeking, among other things, to add 

to the complaint a request for an accounting), 17 (motion seeking leave to amend the 

complaint to include certain allegations concerning the United States Department of 

Veterans Affairs ("VA") and the Federal Deposit Insurance Corporation ("FDIC"), 21 

1

Ms. Allen applied for leave to proceed in forma pauperis on October 12, 2013. Her application 

is GRANTED for the purpose of filing the complaint. 
(Notice of Errata alleging that the VA "Exercised Eminent Domain of the Plaintiffs 

Property" and renaming the description of an "exhibit" to her complaint).2 Although her 

pleadings are difficult to follow, she alleges that government and private entities have 

taken her property in connection with the foreclosure of her home. In addition to the VA 

and the FDIC, Ms. Allen raises allegations against the Department of Housing and Urban 

Development ("HUD") and Government National Mortgage Association ("Ginnie 

Mae");3 Washington Mutual Bank, F.A. ("Washington Mutual"); JPMorgan Chase Bank, 

N.A. ("Chase"), and a United States bankruptcy court. Ms. Allen seeks payment by the 

United States of "approximately over and above $400,000." Compl. at 15. 

Pending before the court is the government's motion, pursuant to Rules 12(b)(l) 

and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), to 

dismiss the complaint for lack of subject matter jurisdiction and for failure to state a 

2 The court hereby GRANTS Ms. Allen's requests to amend, supplement, or otherwise correct 

her complaint. 

3 Ginnie Mae was established as a corporation within HUD pursuant to 12 U.S.C. § 

1723a. Ginnie Mae: 

furnishes fiduciary services to itself and other departments and agencies of the 

Government, and guarantees privately issued securities backed by trusts or pools 

of mortgages or loans which are insured or guaranteed by the Federal Housing 

Administration (["FHA"]), the [VA] or the Rural Housing Service (["RHS"]) and 

certain other loans or mortgages guaranteed or insured by the Government. 

24 C.F.R. § 300.3. Among other things, Ginnie Mae serves "to guarantee the timely payment of 

principal of and interest on securities that are based on and backed by a trust or pool composed 

of mortgages which are insured or guaranteed by ... VA." 24 C.F.R. § 320.l; see generally, 

Securities and Exchange Commission v. Radius Capital Com., No. 2:11-CV-116-FTM-29DNF, 

2012 WL 695668 (M.D. Fla. Mar. 1, 2012) (after "a mortgage-backed security is sold to 

investors, the homeowners' monthly payments of principal and interest are 'passed through' 

from the Issuer to the investors"). 

2 
claim upon which relief can be granted. For the reasons that follow, the government's 

motion is GRANTED. 

I. BACKGROUND 

In January 2003, plaintiff obtained a $113, 189.00 home loan from Washington 

Mutual which was apparently guaranteed by the VA. 4 In 2008, Washington Mutual 

entered receivership, and the FDIC was appointed as receiver. Compl. iii! 28, 48. Under 

the receivership, the FDIC entered into an agreement with Chase, through which 

Washington Mutual's assets, including Ms. Allen's mortgage note, were transferred to 

Chase. Id. ii 49. Ms. Allen also alleges that on December 20, 2013 the VA, acting 

through Chase, foreclosed on Ms. Allen's property. Pl.'s Mot. to Am. & Supp. Compl. at 

1, Dock. No. 17. Ms. Allen further alleges that following the foreclosure sale, the VA 

became the owner of the property. Id. Plaintiff asserts that these actions constituted a 

taking of her property, which "consists of various forms of collateral, such as the Deposit 

Account, proceeds paid to Ginnie Mae Investors, real property and the Note." Compl. ii 

4 The facts described herein are derived from plaintiffs complaint, amended complaint, from 

exhibits and attachments in the bankruptcy litigation captioned In re Allen, No. 10-20094, 

(Bankr. E.D. Va. Apr. 20, 2011), and are undisputed unless otherwise noted. The court notes 

that reference to the bankruptcy proceedings are solely to provide background information 

concerning the size and date of Ms. Allen's mortgage, and do not provide a basis for the court's 

decision. 

Plaintiff has twice moved for "Mandatory Judicial Notice" concerning the operation or 

application of certain provisions of state or federal law. As plaintiff recognizes, "[t]he court may 

judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known 

within the trial court's jurisdiction; or (2) can be accurately and readily determined from sources 

whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Because plaintiff 

seeks judicial notice of legal conclusions or facts that do not satisfy the aforementioned standard, 

plaintiffs motions are hereby DENIED. 

3 
- 69. Plaintiff also alleges that she has a cognizable property interest in regards to 

bankruptcy claims that were previously adjudicated.5 

On January 6, 2014, the government filed a motion to dismiss the complaint 

pursuant to RCFC 12(b)(l) and 12(b)(6). As noted above, plaintiff has filed multiple 

motions to amend, supplement, and otherwise correct her complaint to add new 

allegations and legal contentions. The government has responded to all of Ms Allen's 

pleadings and Ms. Allen has filed responses. 

II. DISCUSSION 

a. The government's motion to dismiss for lack of subject matter jurisdiction 

i. Standard of review 

When considering whether to dismiss a complaint for lack of jurisdiction, the 

court generally assumes that the plaintiffs factual allegations are true. Folden v. United 

States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). This rule does not apply in cases, such as 

the one at bar, in which the moving party challenges the facts necessary to establish the 

court's subject matter jurisdiction. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 

746, 747 (Fed. Cir. 1988). Rather, once a defendant challenges the jurisdictional facts, 

the plaintiff has the obligation of demonstrating that the court has jurisdiction. See id. at 

7 48 (dismissal is appropriate if plaintiff fails to establish jurisdiction after being given an 

opportunity to be heard). Moreover, the plaintiff "must do more than merely reiterate the 

facts in its well-pleaded complaint: plaintiff must respond to defendant's challenge and 

put forth affirmative evidence to establish jurisdiction." N. Hartland, L.L.C. v. United 

5 See In re Allen, No. 10-20094 (Bankr. E.D. Va. Apr. 20, 2011). 

4 
States, 78 Fed. Cl. 172, 179 (2007), affd, 309 F. App'x 389 (Fed. Cir. 2009). Although 

the court affords a prose plaintiff leniency when interpreting her pleading, Erikson v. 

Pardus, 551 U.S. 89, 94 (2007), that plaintiff must still demonstrate that her complaint 

satisfies the court's jurisdictional requirements. Bernard v. United States, 59 Fed. Cl. 

497, 499 (2004) ("This latitude, however, does not relieve a prose plaintiff from meeting 

jurisdictional requirements."), affd, 98 F. App'x 860 (Fed. Cir. 2004). 

Under the Tucker Act, 28 U.S.C. § 1491, this court possesses 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. § 149l(a)(l). In the 

context of a takings claim, plaintiff must allege that ( 1) she possessed "a property interest 

for purposes of the Fifth Amendment," Am. Pelagic Fishing Co. v. United States, 379 

F.3d 1363, 1372 (Fed. Cir. 2004); and (2) that a "governmental action at issue amounted 

to a compensable taking of that property interest," id. Where a plaintiff fails to establish 

that a taking was committed, the court will dismiss the complaint under RCFC 12(b )( 1 ). 

See Ameristar Fin. Servicing, Co. v. United States, 75 Fed. Cl. 807, 812 (2007). 

b. Plaintiff's claims against Chase, Washington Mutual, the FDIC, and the 

bankruptcy courts must be dismissed for lack of jurisdiction 

The government contends that certain of plaintiffs claims are not against the 

government of the United States or cannot give rise to a takings claim and thus the court 

lacks jurisdiction to hear them. Specifically, the government observes that Chase and 

Washington Mutual are private entities, and that the FDIC, when acting in its capacity as 

5 
a receiver, does not constitute a government entity within the meaning of the Fifth 

Amendment. The government also argues that there is no set of facts that could allow the 

court to exercise jurisdiction to review the bankruptcy court's determination. 

Plaintiff responds by asserting that the questions of whether (1) the FDIC was 

acting in its capacity as a receiver; (2) Washington Mutual acted as her lender; (3) Chase, 

rather than the government, foreclosed on her home; and ( 4) the bankruptcy court 

"confiscated" her property; constitute controverted facts that render dismissal under 

RCFC 12(b )( 1) inappropriate. In essence, plaintiff seeks to delay dismissal to allow for 

discovery and resolution of the matter on summary judgment. For the reasons explained 

below, the court holds that it lacks jurisdiction to hear plaintiffs claims against Chase, 

Washington Mutual, the FDIC, or the bankruptcy courts. 

To begin, the court agrees with the government that this court is without 

jurisdiction to consider plaintiffs claims against Chase or Washington Mutual. Chase 

and Washington Mutual represent private banking entities that are not part of the federal 

government and therefore cannot be liable for a taking. Moreover, whether Ms. Allen 

disputes these jurisdictional facts is irrelevant, because once jurisdiction is challenged, 

plaintiff bears the burden of establishing jurisdiction. Reynolds v. Army & Air Force 

Exch. Serv., 846 F.2d at 747. Thus, plaintiffs claims against Chase and Washington 

Mutual must be dismissed. 

The court similarly concludes that the FDIC was acting as a receiver and therefore 

the court lacks jurisdiction to consider plaintiffs claims against the FDIC. Although 

plaintiff-contrary to her initial pleadings-presently disputes the FDIC's status as a 

6 
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receiver, the court is not obligated to accept as true plaintiffs allegations concerning 

jurisdictional facts or conclusions of law. More importantly, the other allegations in the 

complaint describe conduct that would clearly have been undertaken in the FDIC's 

capacity as a receiver. The Supreme Court has explained that when acting as a receiver, 

"the FDIC is not the United States .... " O'Melveny & Myers v. F.D.I.C., 512 U.S. 79, 

85 (1994). Thus, as a receiver the FDIC acts as a non-governmental entity and cannot 

commit a taking. Ameristar Fin. Servicing, Co., 75 Fed. Cl. at 812 (dismissing taking 

claim against the FDIC for lack of jurisdiction). Accordingly, plaintiffs claims against 

the FDIC must be dismissed. 

Finally, the court agrees with the government that it lacks jurisdiction to review 

the decision of the bankruptcy court for a possible taking. In order to entertain Ms. 

Allen's bankruptcy-related takings claim, the court "would have to determine whether 

[Ms. Allen] suffered a categorical taking of [her] property at the hands of the bankruptcy 

trustees and courts .... Such a determination would require the court to scrutinize the 

actions of the bankruptcy trustees and courts." Allustiarte v. United States, 256 F.3d 

1349, 1351-52 (Fed. Cir. 2001). Under binding Federal Circuit precedent, this court is 

not permitted to conduct such a review. Id. Accordingly, plaintiffs claims against the 

bankruptcy court must be dismissed. 

c. The government's motion to dismiss for failure to state a claim 

i. Standard of review 

To defeat a motion to dismiss for failure to state a claim under RCFC 12(b )( 6), a 

plaintiff must allege facts "plausibly suggesting (not merely consistent with) a showing of 

7 
entitlement to relief." Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 

2012). Although the court assumes that all the allegations in the complaint-however 

doubtful in fact-are true, those facts "must be enough to raise a right to relief above the 

speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007); Bank of 

Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009). As previously noted, in 

the context of a takings claim, plaintiff must allege that ( 1) she possessed a cognizable 

property interest and (2) that a "governmental action at issue amounted to a compensable 

taking of that property interest." Am. Pelagic Fishing Co., 379 F.3d at 1372. When no 

such cognizable property interest is found, the takings analysis cannot continue, and the 

complaint must be dismissed for failure to state a claim upon which relief can be granted. 

See Meyers v. United States, 96 Fed. Cl. 34, 62 (2010). 

ii. Plaintiff has failed to state a claim for a taking with regard to HUDGinnie Mae and the VA 

The government argues that plaintiff has failed to allege that a cognizable property 

right has been taken from her, and therefore has failed to state a claim against HUDGinnie Mae or the VA for a taking. In particular, the government contends that plaintiff 

fails to allege facts that raise a non-speculative claim that she provided funds to 

Washington Mutual (prior to receivership) that were not refunded to her when it entered 

receivership, and that any claims based on such an account do not state a non-frivolous 

taking allegation against the United States. In response, plaintiff argues that HUD-Ginnie 

Mae committed a taking by securitizing plaintiffs promissory note and by allegedly 

"funneling" Ms. Allen's loan payments to investors. Compl. iii! 33-41. Plaintiff also 

8 
alleges that the VA took her property when the VA allegedly purchased her home at a 

foreclosure sale.6 

With regard to HUD-Ginnie Mae, the court agrees with the government that the 

decision to securitize her mortgage did not give rise to a "taking." Ms. Allen did not 

have a property interest in any particular entity holding her mortgage. See Patrick v. 

Bank of NY Mellon, No. 11-CV-01304-REB-MJW, 2012 WL 934288, at* 16 (D. Colo. 

Mar. 1, 2012), report and recommendation adopted, 11-CV-01304-REB-MJW, 2012 WL 

934228 (D. Colo. Mar. 20, 2012), affd, 502 F. App'x 744 (10th Cir. 2012). Thus, Ms. 

Allen cannot state a claim with regard to HUD-Ginnie Mae's actions in connection with 

the decision to securitize her mortgage. 

Ms. Allen's taking claims based on allegations of actions by the VA must also be 

dismissed for failure to state a claim. Ms. Allen alleges that the VA, as her loan 

guarantor, wrongfully authorized the foreclosure of her home and took ownership of the 

premises in violation of the Fifth Amendment. The Government correctly argues that 

these contentions do not state a taking claim because Ms. Allen does not dispute that she 

did not make her mortgage payments to the bank holding her mortgage (Chase),7 and 

Chase, not the VA, foreclosed on the loan. In addition, Ms. Allen cannot state a taking 

claim against the VA for a taking after the foreclosure, when the VA allegedly purchased 

6 Plaintiffs complaint alleges numerous legal conclusions concerning the legal effect of certain 

transactions between Washington Mutual, Chase, the FDIC, and the VA. The court is not 

obligated to accept legal conclusions as true. See Kam-Almaz, 682 F.3d at 1368. 

7 Ms. Allen's mortgage note was transferred from Washington Mutual to Chase and Chase has 

been determined to be the rightful owner of the mortgage note. In re Allen, No. 10-20094-BFK, 

2012 WL 3201837, at *4 (Bankr. E.D. Va. Aug. 2, 2012). 

9 
the property at the foreclosure sale, because Ms. Allen lost her property interest in the 

home following the foreclosure. See Anderson v. United States, 85 Fed. Cl. 532, 544 

(2009) (original mortgagor had no cognizable property interest after the VA purchased 

home at foreclosure sale). Because Ms. Allen cannot state a taking claim if she does not 

have a property interest, her claims against the VA must be dismissed. 

III. CONCLUSION 

For the reasons explained above, the government's motion to dismiss the 

complaint pursuant to RCFC 12(b)(l) and RCFC 12(b)(6) is GRANTED. 8 The Clerk 

shall enter judgment accordingly. 

IT IS SO ORDERED. 

8 Having dismissed plaintiff's complaint in its entirety, there is no basis for the court to set a 

schedule for discovery or to require the government to file an answer to the complaint. 

Accordingly, plaintiffs previously stayed Motion for Clarification of Civil Procedure in the 

Court of Federal Claims, Docket No. 13, is DENIED as moot. Plaintiffs motion for a 

Temporary Restraining Order is similarly DENIED as moot. 

10