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Erii .ti d i, u",'.

FILED

JAN 3 0 20li

U.S. COURT OF

GEORGE EDWARD MCDERMOTT, et al.,

Plaintiffs,

THE I.JNITED STATES,

FEDERAL CLAIMS

Pro Se Complaint; Sua Sponte

Dismissal; Lack of Subject Matter

Jurisdiction; RCFC I 2(hX3).

Defendant.

George Edward McDermott, Georse Edward McDermott Jr', and Patricia J. McDermott,

Forest Heights, MD, pfS-Cg.

Sarah Choi, Trial Anomey, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, for defendant.

ORDER OF DISMISSAL

On January 3,2017, plaintiffs, George Edward McDermott and his family, filed a

complaint in this court appearing pro se. ECF No. 1. Plaintiffs' complaint is styled as an

..EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS AND PROHIBITION

TO THE CLERK'S OFFICE OF THE UNITED STATES DISTzuCT COURT D.C.

AND MDtl STATE INFEzuOR COURTS." Compl. Plaintiffs filed with their complaint

an application to appear in forma oauperis (IFP Application), seeking permission to

proceed without paying the court's filing fee. ECF No. 3. For the reasons stated below,

plaintiffs' complaint is DISMISSED for lack of subject matter jurisdiction pursuant to

RCFC l2(h)(3), and plaintiffs' IFP Application is DENIED.

L The Court Lacks Jurisdiction Over Plaintiffs' Claims

The court reviews plaintiffs' complaint to determine whether it has jurisdiction to

hear this case. See 28 U.S.C. $ la9l(a)(l); Hebert v. United States, I l4 Fed. Cl- 590,

593 (2014) (failure to comply with court's jurisdictional requirements not excused even

for pro se plaintiffs).

lntbe @nite! $.tates [ourt of Jfelerst @lsims

No. 17-09C

(Filed: January 30, 2017)

?01'{ 1.,e00 0000 c013 h3?a
"Subject-matter jurisdiction may be challenged at any time by the parties or by the

court sua sponte." Folden v. United States ,3'19 F .3d 1344, 1354 (Fed. Cir. 2004). "In

deciding whether there is subject-matter jurisdiction, "the allegations stated in the

complaint are taken as true and jurisdiction is decided on the face of the pleadings."

Folden, 379 F.3d at 1354 (quoting Shearin v. United States ,992 F .2d I 195, I 195-96

(Fed. Cir. 1993). If the court determines that it does not have subject matter jurisdiction,

it must dismiss the claim. Rules of the United States Court of Federal Claims (RCFC)

12(hX3).

The Tucker Act establishes and limits the jurisdiction of the Court of Federal

Claims to "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." See 28 U.S.C. $ 1491 (2012). With limited exceptions, this

court has authority to "issue judgments for money against the United States only when

they are grounded in a contract, a money-mandating statute, or the takings clause of the

Fifth Amendment." Drake v. Fitzwater, No. 14-408C,2015 WL 1883766, at *l (Fed. Cl.

Apr.23,2015) (citing United States v. Testan,424 U.5.392,397-98 (1976)). Although

the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United

States for money damages, united states v. Mitchell,463 u.s. 206,212 (1983), it does

not confer any substantive rights upon a plaintiff, Testan, 424 U.S. at 398. Therefore, a

plaintiff must "identif, a substantive right for money damages against the United States

separate from the Tucker Act itself' for the court to exercise jurisdiction over a claim.

Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004). The substantive source of

law allegedly violated must "'fairly be interpreted as mandating compensation by the

Federal Government."' United States v. Navaio Nation, 556 U.S. 287,290 (2009)

(quoting Testan , 424 U .5. at 400).

Although plaintiffs identiff damages in the amount of "$35+ million dollars" on

the cover sheet of their complaint, ECF No. 1- 1, the complaint itself does not request - or

set forth any legal basis for- an award of monetary damages. Instead, plaintiffs request

an injunction from this court against the U.S. District Court for the District of Columbia

and Maryland state court - which plaintiffs have characterized as "inferior courts" - for

the "[d]enial of access to courts unjustly." Cover Sheet, ECF No. 1-L

This court cannot grant such relief. Although the Court ofFederal Claims has the

authority to award injunctive relief pursuant to the Tucker Act, 28 U.S.C. $ 1491(bX2),

and under the guidance provided by RCFC 65(d), this relief is a "drastic and

extraordinary" remedy that is available only in certain types of cases. Intel Com. v. ULSI

Svs.Tech.. Inc.,995F.2d 1566, 1568(Fed.Cir. 1993);seealsoMazurekv.Armstrong,

520U.S.968,972 (1997). And before a request for injunctive relief can be evaluated by

the court, plaintiffs must first identifu a substantive right that invokes the court's limited

jurisdiction to hear claims against the United States for money. Thomdike v. United
States, 72 Fed. Cl. 580, 583 (2006) (citing Rice v. United States, 31 Fed. Cl. 156, 164

(1994), affd, 48 F.3d 1236 (Fed. Cir. 1995)); RCFC 65. In other words, the court does

not have jurisdiction over claims in which the sole reliefsought is a action. Id.

Additionally, the court's ability to provide injunctive relief does not extend to compelling

other courts to either take or refrain fiom taking a particular action. Ramirez v. United

States, 239 Fed. Appx. 581, 582 (Fed. Cir. 2007) (pfq se claim asserting that state and

federal courts deprived plaintiff of due process were found to have been properly

dismissed for lack of subject matter jurisdiction holding that the court "cannot grant

equitable relief such as an injunction" absent specific circumstances).

Plaintiffs also make multiple statements in their complaint that refer to the U.S.

District Court for the District of Columbia and Maryland state courts as "lower" courts.

Compl., passim. The court construes these statements to suggest that plaintiffs seek to

challenge the decisions ofthose courts here. The court, however, cannot do so. Colbert

v. United States,6IT F. App'x 981, 983 (Fed. Cir. 2015) ("The [U.S. Court of Federal

Claims] may not substantively review the wisdom of earlier district court orders."). Nor

could the U.S. Court of Federal Claims intervene in any proceeding before those courts as

requested by plaintiffs. Ramirez, 239 Fed. Appx. 581.

Plaintiffs seek further relief for an alleged "civil rights violation." Compl. 2. It is

"well settled," however, that this court does not have jurisdiction over civil rights claims

- whether arising under 42 U.S.C. $ l98l or $ 1983. Wildman v. United States, 28 Fed.

Cl. 494, 495 (1993); Griffith v. United States, No. 14-793C, 2015 WL 1383959, at *2

(Fed. Cl. Mar.20,2015); Ramirez,239Fed. Appx. 581; Osborn v. United States,47 Fed.

cr. 224,232 (2000).

Plaintiffs press claims that cannot be heard by this court. Accordingly, plaintiffs'

complaint is DISMISSED for lack of subject matter jurisdiction under RCFC l2(hx3).

II. Plaintiffs' Motion for Leave to Proceed In Forma Pauperis

Pursuant to 28 U.S.C. $ 1915, a "court of the United States" is permitted to waive

filing fees and security under certain circumstances.r See 28 U.S.C. $ 1915(a)(1); see

also Hayes v. United states, 7l Fed. cl. 366,366 - 67 (2006) (concluding that $

1915(a)(1) applies to both prisoners and non-prisoners alike). As explained by the

website maintained by the court regarding p1s-!e information, "in forma pauperis" is

defined as "[p]ermission to sue without prepayment offees, given by the court to a

I The Court ofFederal Claims, while not generally considered to be a "court ofthe

United States" within the meaning of Title 28 the United States Code, is deemed to be a

"court of the United States" for purposes of this statute, and thus has jurisdiction to grant

or deny IFP applications. See 28 U.S.C. $ 2503(d) (deeming the Court of Federal Claims

to be "a court of the United States" for the purposes of 28 U.S.C. $ 1915).
person who does not have financial means to pay." Pro Se Information,

http://www.uscfc.uscourts.gov/pro-se-information (last visited Jan. 26,2017). Plaintiffs

wishing to proceed in forma pauperis must submit an affidavit that includes a statement

of their assets, declares their inability to pay the fees or give the security, and describes

the nature of their action and the basis for the redress sought. 28 U.S.C. $ l9l5(a)(1).

Under ordinary circumstances, "the threshold for a motion to proceed in forma

pauperis is not high: [t]he statute requires [simply] that the applicant be 'unable to pay

such fees.' 28 U.S.C. $ 1915(a)(1). To be 'unable to pay such fees' means that paying

such fees would constitute a serious hardship on the plaintiff." Fiebelkom v. United

States, 77 Fed. Cl. 59, 62 (2007); see also Moore v. United States, 93 Fed. Cl. 4ll, 414 -

15 (2010).

Although plaintiffs' IFP application is largely illegible, it does appear that

plaintiffs derive income from "[r]ent payments, interest or dividends," as well as

ownership of other assets. IFP Application 2. Moreover, it appears that Mr. George

McDermott is the only plaintiff to have contributed information for the IFP Application.

But, the court cannot discem from the information provided the value ofplaintiffs' assets.

Nor can the court assess plaintiffs' overall ability to pay the filing fee or whether the fee

would constitute a serious hardship on the plaintiffs. Therefore, without more, the court

DENIES plaintiffs' motion for leave to proceed in forma pauneris.

m. Plaintiffs' Other Correspondence Shall Be Retumed Unfiled

On January 5,2017 and January 23,2017, the Clerk ofCourt received additional

correspondence from plaintiffs. In light of the court's determination herein and because

there is no provision in the court's rules for the filing of the documents submitted by

plaintiffs, the Clerk of Court is directed to return these documents to plaintiffs unfiled.

IV. Conclusion

For the reasons set forth above, the Clerk ofCourt shall enterjudgment for

defendant. Once judgment is entered this matter is considered closed. The Clerk's

Office is directed to retum any future filings not in compliance with this court's rules to

plaintiff, unfiled, without further order.

IT IS SO ORDERED.

\.

ChiefJudge