# ORIGINAL 3Jn tbe Wniteb**~tates** 

# QCourt ofjf 

# eberal QCiaims No. 17-1163C Filed: January 5, 2018 

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## * NATHANIELERSKINEROLLE, Plaintiff,pro se,

V. THE UNITED STATES, Defendant. 

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## * * **************************************** NathanielErskine Rolle, Folkston, Georgia, Plaintiff,prose. 

# FILED JAN

- 52018 U

.S

. COURT OF FEDERAL CLAIMS



### Geoffrey Martin Long, United States Department ofJustice, Civil Division, Washington, D.C. , Counsel for the Government.



### MEMORANDUMOPINIONAND FINAL ORDER GRANTING THE GOVERNMENT'SMOTIONTODISMISS BRADEN, Chief Judge. 

### I. RELEVANT FACTUAL BACKGROUND. 1 OnoraboutMay4, 2014,NathanielErskine Rolle, aBahamiannational, was at seaaboard a vessel registered under the flag ofthe Commonwealth ofthe Bahamas. Compl. Att. A at 2. Although it was dark outside, the vessel wasnotusing headlights. Compl. Ex

. 5a at 

### 1.

1 The relevant facts discussed herein were derived from the August 28, 2017 Complaint ("Compl."), an attached "Writ ofHabeas Corpus" ("Compl. Att. A"), and nine exhibits ("Compl. Exs. la-7a").



### 7017 1450 ODDO 1346 0317At approximately 1:00 AM, whenthe vessel reached latitude 20°31'03.0"N and longitude 73°00'04.0"W,2 a United States Coast Guard ("Coast Guard") crew spotted Mr. Rolle's vessel and attempted to contact it by radio, without a response, and observed "bales ofapparent narcotics beingjettisoned from the vessel." Comp!. Exs. 5a, 6a. The Coast Guard contacted Bahamian authorities to request that the United States be permittedto exercisejurisdiction over the vessel, pursuant to 46 U.S.C. § 70502(c)(1)(C)3 and 18 U.S.C. § 2237(d),4 to investigate whether the vessel was engaged in drug trafficking. Comp!. Att. A at 2; Comp!. Ex. 5a at 2. When the Bahamian authorities authorizedjurisdiction, the Coast Guard again radioed to the vessel, directing it to stop and allow the Coast Guard crewto board the vessel. Comp!. Att. A at 4. Around 2:00 AM, Mr. Rolle's vessel was intercepted at latitude 20°32'08.0"N and longitude 73°03'08.0"W. Comp!. Ex. 6a. Thereafter, the Coast Guard searched the vessel and surrounding area where the bales of apparent narcotics werejettisoned and recovered approximately 1,895 pounds ofcontraband that tested positive for marijuana, together with 35 kilograms of contraband that tested positive for cocaine. Comp!. Ex. la at 3; Comp!. Ex. 6a at 2. Mr. Rolle and others aboard the vessel were detained and arrested, but were not read theirMiranda rights at thattime. Comp!. Att. A at4. The Coast Guard sankMr. Rolle's vessel, and transported Mr. Rolle and the others to the United States. Comp!. Att. A. at 4.

2 Whether the vessel was within Bahamian territorial waters is disputed. The August 28, 2017 Complaint alleges that the vessel was at sea within Bahamian territorial waters (Comp!. Att. A at 4), butExhibit 5a and the stated coordinates show that the vessel was found "in international waters approximately 26 nautical miles north ofisle de la Tortue, Haiti" (Comp!. Ex. 5a). 3 That statute provides that "a vessel registered in a foreign nation[,] if that nation has consented or waived objection to the enforcement ofa United States lawby the United States[,]" is subject to thejurisdiction ofthe United States. 46 U.S.C. § 70502(c)(l)(C) (2012).

4 That statute provides, in relevant part, (a)(!) It shall be unlawful for the master, operator, or person in charge ofavessel ofthe United States, or a vessel subject to thejurisdiction ofthe United States, to knowingly fail to obey an order by an authorized Federal law enforcement officer to heave to that vessel. (2) It shall be unlawful for any person on board a vessel ofthe United States, or a vessel subject to thejurisdiction ofthe United States, to- (A) forcibly resist, oppose, prevent, impede, intimidate, or interfere with a boarding or other law enforcement action authorized by any Federal law or to resist a lawful arrest; or (B) provide materially false information to a Federal law enforcement officer during a boarding of a vessel regarding the vessel's destination, origin, ownership, registration, nationality, cargo, or crew. 18 U.S.C. § 2237(a) (2012).

2Mr. Rolle andtwo others who were aboardthe vessel weretriedinthe United States District Court for the Southern District ofFlorida and, on August 4, 2014, Mr. Rolle was convicted of conspiracyto possess withintentto distribute five kilograms ormore ofcocaine and 100 kilograms ormore ofmarijuana, pursuantto 46 U.S.C. §§ 70503(a), 70506(b), and for failing to obeya lawful order, pursuant to 18 U.S.C. § 2237(a)(l). Comp!. Att. A at 1-2. Thereafter, Mr. Rolle's conviction was affirmed in United States v. Wilchcombe, 838 F.3d 1179, 1185 (11th Cir. 2016), cert. denied, 137 S. Ct. 2265 (2017), and he was sentenced to 135 months in prison. Comp!. Att. Aat2. 

### II. PROCEDURAL HISTORY. On August 28, 2017, Mr. Rolle ("Plaintiff') filed a Complaint ("Comp!."), captioned "Petition for a Writ Habeas Corpus," in the United States Court ofFederal Claims, alleging that: (1) the Coast Guard lackedjurisdiction to detain him, because he was detained and apprehended inBahamian waters, inviolation ofthe United States Constitution and a treaty between the United States and the Commonwealth ofthe Bahamas; (2) the Coast Guard violated the FifthAmendment to the United States Constitution by failing to advise Plaintiff ofhis Miranda rights before and immediately after the apprehension; (3) the Coast Guard violated Plaintiffs constitutional rights by failing to contact the Bahamian government "as to [their] abduction ofaBahamian [c]itizen;" and (4) Plaintiffis a Bahamian citizen who has been deprived ofthe rights and liberty owed him by the Bahamian government. Comp!. at 6-8. The August 28, 2017 Complaint also requested reliefin the form of"immediate release from confinement bythe United States." Comp!. at 8. On September 27, 2017, the Government filed a Motion To Dismiss ("Gov't Mot.") the August 28, 2017 Complaint, pursuant to Rule of the United States Comt of Federal Claims ("RCFC") 12(b)(l). On October 17, 2017, Plaintifffiled a Response to the Government's September 27, 2017 Motion To Dismiss ("Pl. Resp."). On October 25, 2017, the Government filed a Reply ("Gov't Reply"). 

### 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 sounding in tort." 28 U.S.C. § 1491(a)(l) (2012). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable againstthe United States for money damages

. . . . [T]he Act merely confersjurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). To pursue a substantive right under the Tucker Act, a plaintiffmust identify and plead an independent contractual relationship, Constitutional provision, federal statute, and/or executive agency regulationthatprovides a substantive right to money damages. See Todd v. UnitedStates,



### 3386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages againstthe United States separate from the Tucker Act[.]"). Specifically, aplaintiffmust demonstrate that the 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 also must 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' "general power to adjudicate in specific areas of substantive law

... is properly raised by a [Rule] 12(b)(l) motion[.]" Palmer v. United States, 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 in the responsive pleading

. . . . But a party may assert the following defenses by motion: (1) lack ofsubject-matterjurisdiction[.]"). When considering whether to dismiss an action for lack of subject matterjurisdiction, "a court must accept as true all undisputedfacts assertedinthe plaintiffs complaint and drawall reasonable inferences in favor ofthe plaintiff." Trusted Integration, Inc. v. United States, 659 FJd 1159, 1163 (Fed. Cir. 2011). 2. Standard OfReview ForPro Se Plaintiffs. Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding thatprose complaints, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted bylawyers"). The United States Court ofFederal Claims traditionally examines the record "to see if [a pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in aprose plaintiff's complaint, the court "does not excuse [a complaint's] failures." Henke v. UnitedStates, 60 F.3d 795, 799 (Fed. Cir. 1995) ("The fact that [the plaintiff! actedprose in the drafting ofhis complaint may explain its ambiguities, but it does not excuse its failures, ifsuch there be."). In addition, a pro se plaintiff, is not excused from his burden of proving, by a preponderance ofthe evidence, that the court possessesjurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) ("[The plaintiff! must allege in his pleading the facts essential to showjurisdiction.");see also Reynolds v. Army & AirForce Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) ("[The pro se plaintiff! bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence."). The pro se plaintiff cannot rely solely on allegations inthe complaint, butmust bring forth relevant, adequateproofto establishjurisdiction. See Reynolds, 846 FJd at 748 ("[I]t was incumbent upon [theprose plaintiff! to come forward with evidence establishing the court'sjurisdiction."); Zulueta v. UnitedStates, 553 F. App'x 983, 985 (Fed. Cir. 2014) ("[T]he leniency affordedto a [prose] litigantwithrespect to mereformalities does not relieve the burdento meetjurisdictional requirements.") (quotation and citation omitted).

4C. The Government's September 27, 2017 Motion To Dismiss. 1. The Government's Argument. The Government argues that Plaintiffdid not meet the burden to establish that the court has subject matterjurisdiction over the claims alleged in the August 28, 2017 Complaint, because it seeks a writofhabeas corpus, although the United States Court ofFederal Claims does nothave 'Jurisdictionto granthabeas corpusrelief." Meeks v. UnitedStates, 2007 WL 5172431, at *3 (Fed. Cl. Aug. 6, 2007); see also Emerson v. UnitedStates, 123 Fed. Cl. 126, 129 (Fed. Cl. 2015) ("[T]o the extent that [a 

## Jcomplaint seeks a writ ofhabeas corpus from this [ c]ourt, 

### itmust be dismissed for lack of subject matterjurisdiction."). Congress authorized the United States District Courts withjurisdictionto adjudicate a petition for a writ ofhabeas corpus. See 28 U.S.C. § 2241 (2012) (authorizing that the district courts, the United States Courts ofAppeals, and the United States Supreme Courthavejurisdictionto issue writs ofhabeas corpus); see alsoLedfordv. UnitedStates, 297 F.3d 1378, 1381 (Fed. Cir. 2002) ("[T]he habeas statute does not list the Court ofFederal Claims among those courts empoweredto granta writ ofhabeas corpus[.]"). Inaddition, Congress did not authorize the United States Court of Federal Claims to "review convictions in criminal cases ... [or to] review the decisions ofdistrict courts or the clerks ofdistrict courts relating to proceedings before those courts." Harris v. United States, 2017 WL 3707927, at *4 (Fed. Cir. Aug. 29, 2017) (internal citations and quotation marks omitted). In sum, the United States Court ofFederal Claims does not havejurisdictionto adjudicate the claims alleged in the August 28, 2017 Complaint. Gov't Mot. at 4. 2. Plaintiff's Response. PlaintiffrespondsthattheUnited States CourtofFederal Claimshas "exclusivejurisdiction over all claims arising over [ c]ivil petitions under the Constitution, federal laws, or treaties ofthe United States." Pl. Resp. at 3. Plaintiff, therefore, reasons that the court also was authorized to adjudicate a writ ofhabeas co1pus, particularly since 28 U.S.C. § 224l(c)(3) providesjurisdiction "overpetitions

... alleging that a prisoner is 'in custody' in violation ofthe Constitution or Laws or Treaty ofthe United States." Pl. Resp. at 4. This custody requirement isjurisdictional. See Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988) ("Although a petitioner need not be physically 'in custody' for subject matterjurisdictionto attach,

... the state must exercise some control over the petitioner to satisfy the 'incustody' requirement[.]" (citations omitted)). Moreover, the United States Court ofFederal Claims has "jurisdictionupon any claim for damage by any person unjustly convicted of an offense against the United States and imprisoned." Pl. Resp. at 4 (quoting 28 U.S.C. 

### § 1495 (2012)). In this case, Plaintiffhas been injured bythe deprivation ofhis liberty. Pl. Resp. at 4. Plaintiffargues that his claims contemplate violations offederal law over which this court has jurisdiction, because they arise from "violations of the Maritime Contractual Agreement" betweenthe United States andthe Bahamas, as well as constitutional violations, because the Coast Guard failed to advise Plaintiffofhis Miranda rights. Pl. Resp. at 5. The "Maritime Contractual Agreement" is a contract between the United States and the Bahamas, and Plaintiff's Bahamian citizenship "binds him to the laws and Constitution[] of the Baltamas Government and the Maritime Contractual Agreement." Pl. Resp. at 6. Underthe Contract Disputes Act, 41 U.S.C. §§

57101-7109 (2012), the United States Court of Federal Claims has exclusive jurisdiction over contractual disputes involving the United States. Pl. Resp. at 6. Therefore, the court has jurisdiction over Plaintiffs claims that arise from a breach of the "Maritime Contractual Agreement." Pl. Resp. at 6. In addition, Plaintiffargues that the August 28, 2017 Complaint is based on deprivations ofhis rights and liberty owed to him bythe Bahamian government. Pl. Resp. at 5. 3. The Government's Reply. The Government replies that, "ilTespective of the source of law," the August 28, 2017 Complaint only seeks release from confinement, notmoney damages. Gov'tReply at 3. Although Plaintiffs October 17, 2017 Response alleges that any agreement between the Bahamas and the United States is a contract, the August 28, 2017 Complaint does not allege "any ofthe elements of an enforceable contract, 

### [i.e.], a mutual intent to contract including an offer, an acceptance, consideration, and facts sufficientto establishthatthe contractwas enteredinto withan authorized agent ofthe United States who had actual authority to bind the United States." Gov't Reply at 3 n.1 (citing 

### Crewzers Fire Crew Transp., Inc. v. United States, 111 Fed. Cl. 148, 157 (Fed. Cl. 2013), 

### aff"d, 741F.3d1380 (Fed. Cir. 2014)). 4. The Court's Resolution. The United States Court of Federal Claims has jurisdiction under the Tucker Act to adjudicate monetary claims against the United States founded upon the Takings Clause of the United States Constitution, Acts of Congress, regulations, or contracts, and requires a moneymandating act to confirm jurisdiction. 

### See 28 U.S.C. § 149l(a)(l) (2012); 

### see also United States v. Mitchell, 463 U.S. at 215-18. To establish subject matterjurisdiction over a complaint, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to moneydamages. 

### Todd, 386 F.3d at 1094 ("[J]urisdictionunderthe TuckerActrequiresthelitigant to identify a substantive right for money damages against the United States separate from the Tucker Act."). The August 28, 2017 Complaint, however, requests a writ of habeas corpus, under 28 U.S.C. § 2241 (2012). Comp!. at 1 ("Petition For A Writ OfHabeas Corpus Under 28 U.S.C. § 2241"). That statute, however, grants specific federal courts authority to issue a writ ofhabeas corpus; the United States CourtofFederal Claims is not amongthe courts enumeratedtherein. 

### See 28 U.S.C. § 224l(a) (2012) ("Writs ofhabeas corpus may be granted by the Supreme Court, any justicethereof, the districtcourts and any circuitjudgewithintheirrespectivejurisdictions."). Nor is the United States Court of Federal Claims a district court. 

### See Ledford, 297 F.3d at 1382. Accordingly, the United States CourtofFederal Claims is not empoweredto grant awrit ofhabeas corpus, and anypetitionfor the same exceeds the court's subject matterjurisdiction. 

### See Ledford, 297 F.3d at 1380-81; 

### see also Emerson, 123 Fed. Cl. 129 ("[Where a] complaint seeks a writ of habeas corpus from [the Court ofFederal Claims], it must be dismissed for lack ofsubject matter jurisdiction.").

6The alternative bases for assertingjurisdiction over the claims alleged in the August 28, 2017 Complaint are insufficient. First, the August 28, 2017 Complaint alleges that the United States Court of Federal Claims has jurisdiction over "any claim for damage[s] by any person unjustly convicted ofan offense againstthe United States and imprisoned[.]" Pl. Reply at4 (citing 28 U.S.C. § 1495 (2012)). A precondition for Tucker Actjurisdiction is the identification of a source oflaw that mandates the payment ofmoney for the wrong alleged. Mitchell, 463 U.S. at 216-17. Because the August 28, 2017 Complaint does not seek money damages or identify a separate, money-mandating remedy, 28 U.S.C. § 1495 does not authorize the court to adjudicate the claims. Second, Plaintiffinvokes the Contract Disputes Actof 1978 ("CDA"), Pub. L. No. 95-563, 92 Stat. 2383 (1978) (codified as amended at 41 U.S.C. §§ 7101-7109 (2012)), as the basis for adjudicating a breach of contract claim arising from a maritime agreement between the United States and the Bahamas. Pl. Reply at 6-7. Plaintiffappears to argue that, as a remedy for that alleged breach, the court may order Plaintiffs release from incarceration, because under the Tucker Act, "as an incident ofand collateral to any ...judgment, [the court may] issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction ofapplicable records, and such orders may be issued to any appropriate official ofthe United States." Pl. Reply at 6-7 (quoting 28 U.S.C. § 149l(a)(2) (2012)). But, the CDA's purpose is "to provide for the resolution ofclaims and disputes relating to Government contracts awarded by executive agencies." Pub. L.No. 95-563, 92 Stat. 2383 (1978). And, "[u]nless otherwise specifically provided[,]

... [the CDA] applies to any express or implied contract

... entered into by an executive agency for

... (I) the procurement ofproperty, otherthan real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance ofreal property; or[] (4) the disposal ofpersonal property." 41 U.S.C. § 7101(a) (2012). The Agreement between the United States and the Bahamian governments concerns "cooperation in maritime law enforcement" regarding "the complex nature ofthe problems of illicit trafficking innarcotics and psychotropic substances by sea and air, and the unsafe transport and smuggling ofmigrants." Comp!. Ex. 7a. Therefore, it is neither aprocurement contract nor a contract for the disposal ofproperty, so the CDA does not apply. Forthese reasons, the court has determined that it does not havejurisdiction to adjudicate the claims alleged in the August 28, 2017 Complaint.

7

### IV. CONCLUSION. For these reasons, the court grants the Government's September 27, 2017 Motion To Dismiss

. 

### See RCFC 12(b)(l). The Clerk ofthe United States Court ofFederal Claims is directed to enterjudgmenton behalfofthe Government. IT IS SO ORDERED.

ChiefJudge

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