# ORIGINAL 3Jn tbe Wniteb $>tates Qtourt of jf 

# eberal Qtlaims No. 15-548C Filed: November 13, 2015 

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

## * PHILLIP L. CROWDER, 

## * * Plaintiff,

### prose, 

## * * v. 

## * * THE UNITED STATES, 

## * * Defendant. 

## * * **************************************** Phillip L. Crowder, Raleigh, North Carolina,

### prose. 

# FILED NOV 

# f32015 U.S. COURT

### OF FEDERAL CLAIMS

Richard P. Schroeder, United States Department ofJustice, Civil Division, Washington, D.C., Counsel for the Government. MEMORANDUM OPINION AND FINAL ORDER BRADEN, 

### Judge. I. RELEVANT FACTUAL BACKGROUND. 1 On December 7, 2006, Phillip L. Crowder pleaded guilty to a violation of 18 U.S.C. § 922(g),2before the United StatesDistrictCourtforthe EasternDistrictofNorthCarolina("District

1 The relevant facts were derived from: Plaintiffs May 28, 2015 Complaint ("Comp!."); Plaintiffs July 20, 2015 "Amend[ed] Order" that this court construes to be Plaintiff's Amended Complaint ("Am. Comp!."); and the Appendix to the Government's July 30, 2015 Cross-Motion To Dismiss ("Gov'tApp. Al-A9"). The courtmay consider evidence outsidethe pleadings when jurisdictional facts are in dispute. 

### See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) ("Fact-finding is properwhen considering a motionto dismiss where thejurisdictional facts in the complaint

... are challenged."). As such, consideration of the Appendix to the Government's July 30, 2015 Cross-Motion To Dismiss is appropriate, because the documents contained thereinprovide the factual basis for whetherthe court hasjurisdiction. 2 Section 922(g), in relevant part, provides: It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or

### Court"). Gov't App. A4. On March 20, 2007, Mr. Crowder was sentenced to 72 months' imprisonment, followed by 36 months' supervised release. Comp!. at 1. On August 8, 2013, the District Court vacated Mr. Crowder's conviction, because it was based on prior convictions that no longer qualified as predicate offenses, in light ofthe United States Court ofAppeal for the Fourth Circuit's decision in UnitedStates v. Simmons, 

### 649 F.3d 237 (4th Cir. 2011). Gov'tApp. A4. On May 20, 2014, Mr. Crowder filed a Complaint with the District Court, seeking to recover monetary damages for the alleged seven years that he had been "under [flederal jurisdiction,

... including supervisedrelease"beforethe vacatur.3 

### Comp!. at 1. TheDistrict Court found that Mr. Crowder's claim was controlled by 28 U.S.C. §§ 

### 1495 and 2513 and should have been filed in the United States Court of Federal Claims with a requisite certificate of actual innocence. See Crowder v. United States, 

### No. 5:14-CT-3133-F, 2014 WL 7011005, at *2 (E.D.N.C. Dec. 11, 2014). The District Court therefore transferred Mr. Crowder's Complaint to the docket ofhis criminalcase as aMotionForTheIssuance OfA Certificate OfActual Innocence. Id. 

### at *3. On February 3, 2015, the District Court denied Mr. Crowder's Motion For The Issuance OfA Certificate OfActual Innocence. Gov't App. A7. The District Court held that even though Mr. Crowder's possession ofa firearm did not violate the federal law, his prior North Carolina felony convictionsmadehis possession ofa firearm aviolation ofNorthCarolinalaw. Gov'tApp. A6. As such, the District Court held that Mr. Crowder failed to demonstrate actual innocence. Gov't App. A6. 

### II. PROCEDURAL HISTORY. On May 28, 2015, Phillip L. 

### Crowder ("Plaintiff") filed a Complaint ("Comp!.") in the United States Court ofFederal Claims, seeking $350,000 for "false arrest, false indictment, unjust and wrongful conviction, (and violation] of[his] [c]onstitutionalrights as a citizen," and $350,000 for "injuries, surgical operations, [and] pain and suffering enlisting indefinate [sic] physical paralysis, etc." Comp!. at 2. The May 28, 2015 Complaint seeks relieffor "incident, altercation, mental anguish, emotional duress, slavery and servitude, defammation [sic] ofcharacter, seizure of [his] person and property, and deprivation endured during imprisonment and unconstitution[al] circumstances." Comp!. at 2. The May 28, 2015 Complaint also proposes a settlement fee of

transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped ortransported in interstate or foreign commerce. 18 U.S.C § 

### 922(g).
3Butsee Crowder v. UnitedStates, 

### No. 14-CT-3133-F, 2014WL 7011005, at *2 (E.D.N.C. Dec. 11, 2014) ("Before his conviction was vacated, [Mr. Crowder] served five years and three months in federal prison.") (internal citation and quotation marks omitted).

2$350,000. That same day, Plaintiffalso filed a MotionFor Leave To Proceed In Forma Pauperis that the court granted on September 10, 2015. On June 8, 2015, Plaintiffsubmitted a letter to the court requesting production ofcertain statutes for his review. The court denied Plaintiffs request on June 10, 2015, because the letter was not a propermotionunderRule 7(b) ofthe Rules ofthe United States CourtofFederal Claims ("RCFC").4 On July 20, 2015, Plaintifffiled an "Amend[ed] Order" that this court construes to be an Amended Complaint. The Amended Complaint increased Plaintiffs proposed settlement fee to $400,000, and explained that the May 28, 2015 Complaint should be construed as a claim for unjust conviction and wrongful imprisonment, not as a commercial claim under 28 U.S.C. § 1491(b). Additionally, a document entitled "Order," attached to the July 20, 2015 Amended Complaint, appears to subpoenathe Government to produce documents. That same day, Plaintiff also filed a Motion For Damages For Unjust Conviction. On July 27, 2015, the Government objected to Plaintiffs subpoena. On July 30, 2015, the Government filed a Response ("Gov't Resp.") to Plaintiffs July 20, 2015 Motion For Damages For Unjust Conviction and filed a Cross-Motion To Dismiss ("Gov't Mot."), pursuantto RCFC 12(b)(l) and 12(b)(6). Plaintiffdid not file a Response. On September 28, 2015, the court issued an Order, requiring Plaintiffto show cause why this case should not be dismissed in light ofhis failure to prosecute his case under RCFC 4l(b). 5 Plaintiffdid not respondto the Show Cause Order. 

### III. DISCUSSION. A. Jurisdiction. The United States CourtofFederal Claimshasjurisdictionunderthe TuckerAct, 28 U.S.C. § 1491, "to renderjudgment upon 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 intort." 28 U.S.C. § 149l(a)(l). The TuckerAct, however, is "ajurisdictional statute; it does not create any substantive right enforceable against the United States for money damages

. . . . [T]he Act merely confersjurisdiction upon [the United States Court ofFederal Claims] wheneverthe substantiveright exists." UnitedStates v. Testan, 424 U.S. 392, 398 (1976).

4 RCFC 7(b), in relevant part, provides, "A request for a court order must be made by motion

.... The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularitythe grounds for seeking the order; and (C) state the reliefsought." RCFC 7(b). 5 RCFC 41 (b), in relevant part, provides, "Ifthe plaintifffails to prosecute or to comply withthese rules or a court order, the court may dismiss onits ownmotion[.]" RCFC 4l(b).

3

### 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, 

### 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the TuckerAct requires the litigantto identify a substantive right for money damages against the United States separate from the Tucker Act[.]"); see also Fisher 

### v. UnitedStates, 

### 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane) 

### ("The Tucker Act

...does notcreate a substantive cause ofaction;

... aplaintiffmustidentify a separate source of substantive law that creates the right to money damages.

. . . [T]hat source must be 'money-mandating."'). Specifically, a plaintiffmust demonstrate that the source of substantive law upon which he relies "can fairly be interpreted as mandating compensation by the Federal Government[.]" Testan, 

### 424 U.S. at 400. And, the plaintiff bears the burden of establishing jurisdictionby a preponderance ofthe evidence. See Reynolds 

### v. Army & Air Force Exch. Serv., 

### 846 F.2d 746, 748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matterjurisdiction [is] put in question

.... [the plaintiff] bears the burden ofestablishing subject matter jurisdiction by a preponderance ofthe evidence."). B. Standard OfReview ForPro Se Litigants. 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 by lawyers"). This court traditionally examines the record "to see if [apro se] 

### plaintiffhas a cause ofaction somewhere displayed." Ruderer 

### v. UnitedStates, 

### 188 Cl. Ct. 456, 468 (1969). Nevertheless, while the courtmay excuse ambiguities in aprose

### plaintiffscomplaint, the court "does not excuse [a complaint's] failures." Henke 

### v. United States, 

### 60 F.3d 795, 799 (Fed. Cir. 1995). C. Standard OfReview 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)(I) 

### ("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: (I) 

### lack ofsubject-matterjurisdiction[.]"). When considering whether to dismiss an action for lack ofsubjectmatterjurisdiction, the court "a court must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor oftheplaintiff." TrustedIntegration, Inc. 

### v. UnitedStates, 

### 659 F.3d 1159, 1163 (Fed. Cir. 2011). D. The Government's July 30, 2015 Cross-Motion To Dismiss. 1. The Government's Argument. 

### The Government argues that this court does not havejurisdictionto adjudicate the claims alleged in the May 28, 2015 Complaint. Gov'tMot. at 1. Specifically, the Government contends that Plaintiffs unjust conviction and imprisonment claim should be dismissed, because Plaintiff "has failed to satisfy the requirements of section 2513, including obtaining a certificate of

4innocence." Gov't Mot. at 9. In addition, the Government urges this court to dismiss other constitutional claims, because the court has jurisdiction to "entertain only those constitutional claims that 'require payment ofmoney damages for the violation."' Gov't Mot. at I0 (quoting 

### Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987)). In addition, the Government contends that Plaintiffsvarious othertort claims shouldbe dismissed, becausethe court "does not possess Tucker Actjurisdictionto entertain tort claims." Gov'tMot. at 11. In the alternative, the Government argues that some ofPlaintiffs claims can be dismissed pursuant to RCFC 12(b)(6). Specifically, the Government argues that this court should dismiss the wrongful conviction and imprisonmentclaimdueto Plaintiffs "inabilityto allege the elements of section 2513." Gov't Mot. at 13. Likewise, the constitutional takings claim should be dismissed, because "itis clearfrom the complaintthat any property seizedby the Government was seized pursuant to the Government's police power in connection with the criminal law matters." Gov'tMot. at 14. 

### 2. Plaintiffs Response. Plaintiff did not file a Response to the Government's July 30, 2015 Cross-Motion To Dismiss. 

### 3. The Court's Resolution. "[J)urisdictionunderthe Tucker Act requires the litigantto identify a substantive right for money damages against the United States separate from the Tucker Act[.]" 

### Todd, 386 F.3d at 1094. In determining whether Plaintiffproperly identified a separate substantive right for money damages, the court is cognizant ofits obligation to construe liberally

### pro se plaintiffs' pleadings. 

### See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that a 

### "prose document is to be liberally construed"). But, the court "does not excuse [a complaint's] failures." 

### Henke, 60 F.3d at 799. The May 28, 2015 Complaint alleges three claims: (1) wrongful conviction and imprisonment; (2) injurybythe Government's allegedtortious acts; 6 and (3) violation ofPlaintiffs constitutional rights, including his right to property. For the reasons set forth below, this court finds that Plaintiffhas failed to meetthe burdenofestablishingthatthis courthasjurisdiction over his claims. First, Plaintiffhas not demonstrated that his conviction and imprisonment were unjust, so as to bring his claim within the realm of this court's jurisdiction. Although the court has jurisdiction "to renderjudgmentupon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned," 28 U.S.C. § 1495, its ability to adjudicate this claim is limited by 28 U.S.C. § 2513(a).

6 The May 28, 2015 Complaint seeks relief for "false arrest" and "injuries, surgical operations, pain and suffering enlisting indefinate [sic) physical paralysis" and "incident, alternation, mental anguish, emotional duress

... defammation [sic) ofcharacter, seizure of [his) person ... and deprivation during imprisonment[.]" Comp!. at 2.

5Section 2513(a) ofthe Unjust Conviction Actprovides: Any person suing under section 1495 ofthis title must [also] allege and prove that: (1) His convictionhas beenreversed or set aside onthe ground thathe is not guilty ofthe offense ofwhich he was convicted, or on new trial or rehearing he was found not guilty ofsuchoffense, as appears from the record or certificate ofthe court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground ofinnocence and unjust conviction and (2) He did not commit any ofthe acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, orany State, Territory orthe DistrictofColumbia, andhe didnotby misconduct or neglect cause or bring about his own prosecution. 28 U.S.C. § 2513(a). In this case, neither the May 28, 2015 Complaint, the July 20, 2015 Amended Complaint nor the July 20, 2015 Motion For Default Judgment "allege[s] or prove[s]" any ofthe statutory requirements, i.e., that Plaintiffreceived a certificate of innocence or was "pardoned upon the stated ground ofinnocence," and that "[h]e did not commit any ofthe acts charged." 28 U.S.C. § 2513(a). This is because the convicting District Court denied PlaintiffsMotionFor The Issuance OfA Certificate OfActual Innocence and expressly found that "[Plaintiffcould not] demonstrate that he [was] truly innocent ofany offense." Gov't App. A6. As such, the court does not have jurisdiction to adjudicate Plaintiffsunjust conviction and imprisonment claim. Second, Plaintiffs tort claims do not fall within the purview ofthis court'sjurisdiction. Tort claims are expressly excluded from the provisions of the Tucker Act. See 28 U.S.C. § 149l(a)(l); see also Rick'sMushroom Serv., Inc. v. UnitedStates, 521F.3d1338, 1343 (Fed. Cir. 2008) ("The plain language ofthe Tucker Act excludes from the [United States] Court ofFederal Claimsjurisdiction claims sounding in tort."). Therefore, the court does not havejurisdiction to adjudicate claims relating to the Government's alleged tortious acts. Finally, the court cannot adjudicate the claims regarding violations of Plaintiffs constitutional rights, including his right to property, because neither the May 28, 2015 Complaint nor the July 20, 2015 Amended Complaint state more than bare allegations that Plaintiffs constitutional rights were violated, i.e., Plaintiff does not identify any constitutional provisions under whichthe courtcan adjudicate his claims. Moreover, to the extentthatthe claim relating to seizure ofPlaintiffs property can be construed as a violation ofhis Fifth Amendment right to property, Plaintiffdoes not assert that his property was taken for public use, rather than pursuant to the criminal laws. See A &DAuto Sales, Inc. v. UnitedStates, 748 F.3d 1142, 1150 (Fed. Cir. 2014) ("[The Takings Clause] guaranteesjust compensation whenever private property is 'taken' for public use."); see also Acadia Tech., Inc. 

### v. United States, 458 F.3d 1327, 1331 9 Fed. Cir. 2006) ("When property has been seized pursuant to the criminal laws[,]

... such deprivations are not 'takings' for whichthe owneris entitledto compensation."). As such, Plaintiffsconstitutional claims are frivolous and carmotbe adjudicatedby this court. See Steel Co. 

### v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998) ("Dismissal for lack of

6subject-matterjurisdictionbecause ofthe inadequacy ofthe federal claim is proper ... when the claim is so insubstantial [and] implausible

....") (internal citations and quotation marks omitted); see also Moden v. UnitedStates, 404 F.3d 1335, 1340--41 (Fed. Cir. 2005) (holding that dismissal for lack ofsubject-matterjurisdiction is permissible where a claimant asserts a frivolous claim). IV. CONCLUSION. For the reasons discussed herein, the Government's July 30, 2015 Motion to Dismiss is granted. See RCFC 12(b)(l), 12(b)(6). The Clerk is directed to dismiss Plaintiffs May 28, 2015 Complaint and July 20, 2015 Amended Complaint. As such, all remaining pending motions in this case are denied as moot. IT IS SO ORDERED.
SUSA: Judge

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