In the United States Court of Federal Claims

No. 21-1123 C

Filed: June 28, 2021

)

DAVID BRIAN MORGAN, )

)

 Plaintiff, )

)

 v. )

)

THE UNITED STATES, )

)

 Defendant. )

)

David Brian Morgan, Lexington, OK, pro se.

Joshua A. Mandlebaum, U.S. Department of Justice, Civil Division, Commercial Litigation 

Branch, Washington, D.C., with whom were Brian M. Boynton, Acting Assistant Attorney 

General, Martin F. Hockey, Jr., Acting Director, and Tara K. Hogan, Assistant Director, of 

counsel, for the Defendant.

OPINION AND ORDER

MEYERS, Judge.

David Brian Morgan (“Morgan”) brings this action pro se against various defendants, 

including the State of Oklahoma, various judges, various prison officials and corrections officers, 

and the Social Security Administration. For the reasons stated below, the Court grants the 

Government’s Motion to Dismiss (ECF No. 7).

I. Background

Morgan pleaded guilty to rape, molestation, kidnapping, and weapons possession. He is 

currently serving a life sentence in an Oklahoma state prison. Morgan v. Oklahoma, 814 F. 

App’x 353, 354 (10th Cir. 2020) (per curiam). Morgan now raises several challenges to his 

confinement, including alleged overcrowding, see Compl., ECF No. 1, at 6-8, 17,1 prison 

violence, id. at 8, negligence and medical malpractice, id., decreased access to the law library, id. 

at 9, and insufficient access to medical care, id. at 12. Morgan contends that these allegations 

establish violations of the False Claims Act and various “Indian protection” statutes. Id. at 

1 Because Plaintiff’s complaint is handwritten and paragraphs are not numbered, the Court refers 

to page numbers when referring to the Complaint.
2

13-14. Morgan also appears to allege violations by federal judges that have denied him relief, 

including collateral review of his conviction. See id. at 10-11. Finally, Morgan alleges 

“FRAUD OF AN EPIC PROPORTION” because he has had social security withheld from 

checks while he was employed but is now ineligible for benefits because of his incarceration. Id. 

at 11-12.

II. Standard of Review

Generally, a pro se plaintiff’s complaint is held to “less stringent standards . . . .” Estelle 

v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). 

But a pro se plaintiff must establish this Court’s jurisdiction. See Kelley v. Sec’y, U.S. Dep’t of 

Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“We agree that leniency with respect to mere 

formalities should be extended to a pro se party, . . . [h]owever, . . . a court may not similarly 

take a liberal view of that jurisdictional requirement and set a different rule for pro se litigants 

only.”). “Pro se or not, the plaintiff still has the burden of establishing by a preponderance of the 

evidence that this Court has jurisdiction over its claims.” Rothing v. United States, 132 Fed. Cl. 

387, 390 (2017) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

“Although a litigant has the right to act as his or her own attorney, it is well established that the 

right of self representation is not a license to fail to comply with the applicable rules of 

procedural and substantive law.” Walsh v. United States, 3 Cl. Ct. 539, 541 (1983) (citing 

Faretta v. California, 422 U.S. 806, 834 n.46 (1975)).

When considering a motion under Rule 12(b)(1) of the Rules of the Court of Federal 

Claims (“RCFC”), the Court accepts as true the undisputed allegations in the complaint and 

draws all reasonable inferences in favor of the plaintiff. See Cedars-Sinai Med. Ctr. v. Watkins, 

11 F.3d 1573, 1583 (Fed. Cir. 1993). If, at any time, the Court determines that it lacks subject 

matter jurisdiction, “the court must dismiss the action.” RCFC 12(h)(3).

When evaluating a RCFC 12(b)(6) motion, the Court assumes the veracity of any 

complaint’s well-pleaded factual allegations, drawing all reasonable inferences “that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009).

Based on these allegations, the Court “determine[s] whether they plausibly give rise to an 

entitlement to relief.” Id. at 679. “The plausibility standard is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 

Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Factual allegations 

must be enough to raise a right to relief above the speculative level on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact)[.]” Twombly, 550 U.S. at 555 

(internal citation omitted). Under RCFC 12(b)(6), the Court must dismiss a complaint that fails 

to “plausibly allege the required elements” for any claims. Kam-Almaz v. United States, 682 

F.3d 1364, 1369 (Fed. Cir. 2012).

III. Discussion

Under the Tucker Act, which is the primary jurisdictional grant to this Court, “[t]he 

United States Court of Federal Claims shall have 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 
3

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. 

§ 1491(a)(1). Although the Tucker Act provides a grant of jurisdiction and waiver of sovereign 

immunity, it does not provide a cause of action or right to recover. To invoke the Court’s 

jurisdiction, Morgan must also identify a Constitutional provision, statute, or regulation that 

entitles him to recover money from the United States. As the Supreme Court explained, “[n]ot 

every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the 

Tucker Act. The claim must be one for money damages against the United States . . . and the 

claimant must demonstrate that the source of substantive law he relies upon can fairly be 

interpreted as mandating compensation by the Federal Government for the damages sustained.” 

United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (citations and internal quotation marks

omitted). Such “money-mandating provisions are uncommon . . . .” Maine Cmty. Health 

Options v. United States, 140 S. Ct. 1308, 1329 (2019) (citing M. Solomson, Court of Federal 

Claims: Jurisdiction, Practice, and Procedure 4-18 (2016)). 

A. This Court lacks jurisdiction to hear Morgan’s claim under the False Claims 

Act.

Morgan seeks to bring a qui tam action under the False Claims Act on behalf of the 

United States against a United States Magistrate Judge, a United States District Judge, one

corrections officer, a prison official, the Social Security Administration, and the State of 

Oklahoma. Compl. at 1-4. But the Court’s jurisdiction only extends to claims against the United 

States for its alleged wrongdoing. “[I]f the relief sought is against others than the United States

the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. 

Sherwood, 312 U.S. 584, 588 (1941). Indeed, Morgan does not identify any wrongdoing by the 

United States. Instead, he seeks to bring an action on behalf of the United States for wrongs 

allegedly done to it. See Compl. at 1 (“Motion to File for United States of America . . . Motion 

to File Qui Tam False Claims Act”). But Congress vested the exclusive jurisdiction over claims 

under the False Claims Act in the district courts. As the Federal Circuit explained, “qui tam suits 

may only be heard in the district courts.” LeBlanc v. United States, 50 F.3d 1025, 1031 (Fed. 

Cir. 1995) (citing 31 U.S.C. § 3732(a)). Because this Court is not a district court, it lacks 

jurisdiction under the False Claims Act to hear Morgan’s claims.

Even if the Court construed Morgan’s claim to be for common law fraud, the result 

would be the same. Fraud, along with negligence, Compl. at 11-12, and medical malpractice, id.

at 8, sound in tort. The Court cannot adjudicate these claims because Congress limited our

jurisdiction to “cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).

In any event, the Court will examine whether there is a Constitutional or statutory 

provision that provides jurisdiction over Morgan’s claims to ensure that jurisdiction is lacking

before dismissing the action.

B. The United States Constitution does not provide this Court with jurisdiction 

over Plaintiff’s claims.

1. The First Amendment does not confer jurisdiction over Plaintiff’s claims.
4

Morgan argues that the First Amendment provides this Court with jurisdiction over his 

claims because this Court “HELPS MAKE CONCRETE THE SPIRIT OF THE FIRST 

AMENDMENT[’]S GUARANTEE OF THE RIGHT ‘TO PETITION THE GOVERNMENT 

FOR [A] REDRESS OF GRIEVANCES.’” Pltf.’s Resp. at 7 (quoting U.S. Const. amend. I), 

ECF No. 10.

2 While the First Amendment certainly guarantees core, fundamental rights, “the 

[F]irst [A]mendment, standing alone, cannot be so interpreted to command the payment of 

money.” United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983); Oyer v. United States, 

No. 18-903T, 2019 WL 6358035, at *6 (Fed. Cl. Nov. 27, 2019) (“Plaintiff asserts that our court 

has jurisdiction under the First Amendment, which guarantees her right to petition the courts to 

redress allegedly-suffered grievances. . . . But the First Amendment is not money-mandating . . . 

and thus this argument fails to state a claim within our subject-matter jurisdiction.”) (internal 

citations omitted). Because the First Amendment does not command the payment of money, it 

does not confer jurisdiction upon this Court to hear Morgan’s claims.

2. The Fifth Amendment does not confer jurisdiction over Plaintiff’s claims.

Morgan asserts that both the Grand Jury3 Clause, Pltf.’s Resp. at 3, and Double Jeopardy 

Clause, id. at 7-8, of the Fifth Amendment provide jurisdiction over his claims. Here too, this 

Court lacks jurisdiction under these provisions because they are not money-mandating. When 

addressing an argument that the Fifth Amendment’s Due Process and Double Jeopardy Clauses 

confer jurisdiction here, the Federal Circuit found it “well established that the Court of Federal 

Claims lacks jurisdiction over such claims because neither [the Due Process Clause nor the 

Double Jeopardy Clause of the Fifth Amendment] is a money-mandating provision.” Flowers v. 

United States, 80 Fed. Cl. 201, 214 (2008) (alterations in original) (quoting James v. Caldera, 

159 F.3d 573, 581 (Fed. Cir. 1998)). The same is true of the Grand Jury Clause. Nelson v. 

United States, No. 14-1023C, 2015 WL 276330, at *3 (Fed. Cl. Jan. 21, 2015) (“It is axiomatic 

that the First, Sixth, Ninth, and Fourteenth Amendments, and most of the Fifth Amendment, by 

themselves, are not money-mandating.”) (citations omitted); Stephens v. United States, No. 

10-571C, 2011 WL 222118, at *3 (Fed. Cl. Jan. 21, 2011) (recognizing that only the Takings 

Clause of Fifth Amendment is money-mandating). As the Court in Nelson recognized, “[e]xcept 

for one clause of the Fifth Amendment [(the Takings Clause)] ‘the Fifth and Sixth Amendments 

are not money mandating.” Nelson, 2015 WL 276330, at *3 (quoting Milas v. United States, 42 

Fed. Cl. 704, 710 (1999), aff’d, 217 F.3d 854 (Fed. Cir. 1999)).

3. The Eighth Amendment does not confer jurisdiction over Plaintiff’s 

claims.

2 Because Plaintiff’s Response does not have page numbers, respective citations are to page 

numbers in the ECF Header.

3 Because this Court lacks jurisdiction over claims under the Grand Jury Clause, it need not reach 

the question of whether the clause applies to Plaintiff’s claims at all. Plaintiff is incarcerated in a 

state penitentiary based on his guilty plea to state criminal charges. To date, the Supreme Court 

of the United States has not found the Grand Jury Clause applicable to the States through 

incorporation into the Fourteenth Amendment. Nothing in this opinion should be construed to 

find or imply otherwise.
5

Although not explicitly asserted in the Complaint, Morgan does allege what he considers 

to be “CRUEL AND UNUSUAL PUNISHMENT.” Compl. at 8. Assuming this is intended to 

invoke the Eighth Amendment as a basis of jurisdiction, this claim fails as well. As the Federal 

Circuit made clear, “[t]he Court of Federal Claims does not have jurisdiction over claims arising 

under the Eighth Amendment, as the Eighth Amendment ‘is not a money-mandating provision.’” 

Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (per curiam) (citation omitted). 

Therefore, the Eighth Amendment does not provide this Court with jurisdiction to hear Morgan’s 

claims.

4. This Court lacks jurisdiction to address Morgan’s claims under McGirt v. 

Oklahoma.

Although not entirely clear, Morgan appears to allege that the State of Oklahoma has 

acted unlawfully by “ILLEGALLY ARREST[ING], CHARG[ING], IMPRISON[ING], [AND] 

FIN[ING]” inmates. Compl. at 8. In addition to alleging misconduct by entities other than the 

United States, these allegations are not properly raised to this Court. To the extent Morgan 

wishes to challenge his arrest and confinement under McGirt v. Oklahoma, 140 S. Ct. 2452 

(2020), see Compl. at 8, 14-16, he must bring that claim in an appropriate district court. 

Similarly, Morgan alleges that various judges have improperly denied his petitions for habeas 

corpus and seeks to have this Court “CLEAN UP” the errors made by these other courts. Id. at 

10-11. Confirming his desire for this Court to review his conviction, Morgan asks for an order 

granting him “IMMEDIATE RELEASE FROM PRISON, (2) IMMUNITY FROM FURTHER 

PROSECUTION, [AND] (4) SENTENCE COMPLETELY VACATED AS ILLEGAL.” Pltf.’s 

Resp. at 8. But this Court lacks jurisdiction to review the decisions of district courts. Jones v. 

United States, 440 F. App’x 916, 918 (Fed. Cir. 2011) (“To the extent that [the prisoner] asked 

the [Court of Federal Claims] to review any of the judgments of the Minnesota state and federal 

courts with respect to his criminal case, the [Court of Federal Claims] does not have the authority 

to review such decisions.”) (citations omitted); Joshua v. United States, 17 F.3d 378, 380 (Fed. 

Cir. 1994) (“[T]he Court of Federal Claims does not have jurisdiction to review the decisions of

district courts . . . .”); Carter v. United States, 228 Ct. Cl. 898, 900 (1981) (“[The plaintiff] 

cannot here be heard to make a collateral attack on his convictions under the guise of a claim for 

money damages.”).

C. There is no statutory basis for jurisdiction over Plaintiff’s claims.

1. 28 U.S.C. § 1331 does not vest this Court with jurisdiction.

Morgan identifies 28 U.S.C. § 1331 in his Complaint as providing this Court jurisdiction 

to hear his claims. Compl. at 6. Although the Parties did not address Section 1331 in their 

briefs, the Court will address Section 1331 as a potential source of jurisdiction because the 

Complaint raises it. Section 1331 provides: “The district courts shall have original jurisdiction 

of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 

U.S.C. § 1331 (emphasis added). When Congress vests jurisdiction in the district courts, this 

Court “lacks subject matter jurisdiction over” such claims because “[t]he Court of Federal 

Claims is not a district court of the United States . . . .” Ledford v. United States, 297 F.3d 1378, 

1382 (Fed. Cir. 2002); see also Embrey v. United States, No. 19-740C, 2020 WL 7312184, at *5 
6

(Fed. Cl. Dec. 11, 2020) (holding Section 1331 “does not apply to our court, however, and so 

does not provide the necessary jurisdiction to proceed.”) (citations omitted).

2. This Court does not have jurisdiction over Morgan’s social security 

claims.

Although the basis of Morgan’s allegations about social security benefits is not clear, he 

appears to allege that he is not receiving any benefits because of a “FRAUD OF AN EPIC 

PROPORTION.” Compl. at 12. To the extent Morgan brings a fraud claim, that tort claim is 

outside the Court’s jurisdiction as explained above. To the extent he seeks a review of his 

benefits or lack thereof, Morgan must bring that claim to a district court. 42 U.S.C. § 405(g)

(requiring challenges to benefit determinations to be brought in district court) & (h) (prohibiting 

any challenge other than those allowed in Section 405); Marcus v. United States, 909 F.2d 1470, 

1471 (Fed. Cir. 1990) (“[T]he [Court of Federal Claims] has no jurisdiction under the Tucker 

Act, 28 U.S.C. § 1491(a)(1) (1988), over claims to social security benefits . . . .”).

3. None of the “Indian Protection” statutes Morgan cites provide jurisdiction 

to hear his claims.

Morgan identifies five “Indian Protection” statutes presumably as bases for this Court to 

hear his claims. Compl. at 13. But he does not elaborate as to what, if any, bearing these

statutes have on this case. And it is difficult to see how they are relevant. These statutes are:

• 25 U.S.C. § 177-Purchases or grants of lands from Indians. This provision 

invalidates purchases of Indian lands other than those made by treaty or 

convention pursuant to the Constitution. It also provides for a penalty for anyone 

“not being employed under the authority of the United States” that attempts to 

negotiate such a treaty or convention.

• 25 U.S.C. § 179-Driving stock to feed on lands. This provision imposes a penalty 

of $1 per animal on any person that drives livestock “to range and feed” on any 

Indian lands but not Creek lands.

• 25 U.S.C. § 180-Settling on or surveying lands belonging to Indians by treaty. 

This provision prohibits the surveying of and settlement on Indian lands, and 

provides that violators are liable for a “penalty of $1,000.” The statute also 

allows the President “to remove any such person from the lands.”

• 25 U.S.C. § 201-Penalties; how recovered. This provision requires that actions to 

recover penalties be brought in the name of the United States “before any court 

having jurisdiction of the same . . . .” 

• 25 U.S.C. § 264-Trading without license; white persons as clerks. This provision 

prohibits non-Indians from trading in Indian country without a license, and 

provides that anyone doing so without a license “shall forfeit all merchandise 

offered for sale to the Indians or found in his possession,” and is “liable to a 
7

penalty of $500.” It also prohibits white persons from serving as a clerk to an 

Indian trader unless licensed by the Government.

These statutes, however, do not provide this Court with jurisdiction. To the contrary, 

except for Section 201, they assess penalties and forfeitures. And jurisdiction over claims for 

penalties and forfeitures lies in the district courts. 28 U.S.C. § 1355(a) (“The district courts shall 

have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for 

the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred 

under any Act of Congress . . . .”). And Section 201 provides the mechanism to bring an action 

to recover penalties—i.e., a qui tam proceeding brought in the name of the United States. 25 

U.S.C. § 201; United States ex rel. Whitehorse v. Briggs, 555 F.2d 283, 285 (10th Cir. 1977). 

But nothing about these statutes indicates that Congress meant to waive immunity to 

actions against the United States under them. And it is beyond dispute that such a waiver must 

be “unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting 

United States v. King, 395 U.S. 1, 4 (1969)). In fact, because Section 177 provides penalties for

anyone “not being employed under the authority of the United States,” 25 U.S.C. § 177, it does 

not appear that the United States could be liable under this provision. Like Section 177, Section 

264 provides penalties for those trading without a license issued by the United States. It is not 

clear how the United States could be liable under such a provision for trading in Indian country

(a fact that Morgan never alleges). Similarly, Section 180 prohibits settling on or surveying 

Indian land and authorizes the President to “employ such military force as he may judge 

necessary to remove any such person from the lands.” Id. § 180. Given that the President could 

easily direct government officials to vacate such lands, the authorization of military force 

strongly suggests that Section 180 targets only non-governmental actors rather than the 

Government itself. Finally, allowing Morgan to bring an action in the name of the United States 

against the United States would put the United States in the untenable position of being both the 

plaintiff and the defendant in the same action.

IV. Conclusion

For the foregoing reasons, the Court grants the Defendant’s Motion to Dismiss for lack of 

subject matter jurisdiction.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge