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# eberal<!Claiuts No. 16-1464C Filed: January5, 2017

*************** * *** * * 

# FILED JAN - 52017 NICOLL STEWART, Plaintiff, * * * U

.S

.COURTOF FEDERALCLAIMS Pro Se Plaintiff; Subject Matter Jurisdiction; TortClaims; 

### v. * * UNITED STATES, Defendant. 

### * * Criminal Claims.

* * ************** *** * *

Nicoll Stewart, prose, Lafayette, Indiana

. Douglas G. Edelschick, Trial Attorney, Civil Division, United States Department ofJustice,Washington, D

.C

.,fordefendant. With him was Benjamin C. Mizer, Principal Deputy AssistantAttorney General, Robert E. Kirschman, Jr., Director, and Martin F. Hockey, Jr.,Assistant Director, Civil Division, United States DepartmentofJustice

. ORDER HORN, J. On November3, 2016 prose plaintiff Nicoll Stewartfiled a complaint in the United States Court of Federal Claims against various state agencies and personnel including the "Department of Descrimination."1
Ms

.Stewartallegesthat: Iam a previous victim ofcivil rights violation and invasion ofprivacy

. Ihave reasons to believe I am owed a large sum of benefits for the crimes and actions taken by congressman and state workers in association for accepting certain conditions in my life

. My human have been violated in the worstway,along with my parent rights

.Crimes include but not limited to: * endangering a child * sexual exploitation/child exploitation

*Harrassment

1 Capitalization, grammar, punctuation and other errors quoted inthis Order are as they appear in plaintiff's complaint.*intimidation * corporation violation *Humiliation *Human trafficking I believe this was scheduled a charity purpose, however my human rights was not included. Since my human/parenting rights was dismissed on numerous mistakes and options, I have been taking more legal action in regardsto mysituation. Thesetype ofactions are very dangerousfor anytenant, orcitizen. But I've accepted things for how they are, and now I'm claiming my parts of the funds. Ms. Stewart also states that "[t]hese are huge challenges people face on a daily basis, unfortunately I've mastered every area of these type of problems." In response to plaintiff's complaint, on December 19, 2016, the defendant filed a motion to dismiss the complaint for lack of subject matterjurisdiction, pursuant to Rule 12(b)(1) (2016) of the Rules ofthe United State Court of Federal Claims. DISCUSSION The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a prosecomplaint be held to "less stringentstandardsthan formal pleadings drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Ericksonv. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff'd, 603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[!]here is no duty on the part ofthe trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiffis held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9 and Taylorv. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden ofshowing jurisdiction by a preponderance ofthe evidence."), reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities 2in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."' (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less stringent standard, such leniency 'with respect to mere formalities does not relieve the burden to meetjurisdictional requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)). The TuckerAct, 28 U.S.C. 

### § 1491, grantsjurisdictionto this court as follows: The United States Court of Federal Claims shall havejurisdiction to render judgment upon any claim againstthe United Statesfounded either uponthe Constitution, or any Act of Congress or any regulation of an executive department, or upon anyexpress orimplied contractwith the United States, orfor liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. 

### § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the TuckerActwaives sovereign immunityto allowjurisdiction over claims againstthe United States (1) founded on an express or implied contractwith the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee Cnty., Ariz. v. United States,487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en banedenied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmerv. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999). "Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable underthe TuckerAct. The claim must be oneformoneydamages againstthe United States

...."United States v. Mitchell, 463 U.S. at 216; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must

... identify a substantive source of law that creates the right to recovery of money damages against the United States."); Golden v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types ofmonetaryclaims forwhich jurisdiction is lodged in the United States Court of Federal Claims. The courtwrote: The underlying monetaryclaims are ofthree types

.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act's waiver

.... Second, the Tucker Act's waiver encompasses claims where "the plaintiff has paid money over to the Government, directlyor in effect, and seeks return ofall orpartofthatsum." Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in which 'the Government has the citizen's money in its pocket"' (quoting



### 3Clappv. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))

.... Third, the Court of Federal Claims hasjurisdiction overthose claims where "money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require thatthe "particular provision oflaw relied upon grantsthe claimant, expressly or by implication, a rightto be paid a certain sum." 

### .!Q.,_; see also [United States v. ]Testan, 424 U.S. [392,] 401-02 [1976] ("Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause ofaction for moneydamages unless, as the Court of Claims has stated, that basis 'in itself

... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a "money-mandating" statute. Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also Twp. of Saddle Brookv. United States, 104 Fed. Cl. 101, 106 (2012). To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon "'can fairly be interpreted as mandating compensation by the Federal Government."' United States v. Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)); see also United States v. White MountainApacheTribe, 537 U.S. at472; United States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290 (The TuckerAct does not create "substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts)."). '"If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence ofamoney-mandating source is "fatalto the court'sjurisdiction under the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009 When deciding a case based on a lack ofsubject matterjurisdiction or for failure to state aclaim, this court must assume that all undisputed facts alleged in the complaint aretrue and mustdrawall reasonable inferences in the non-movant'sfavor. See Erickson v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, ajudge must accept as true all ofthe factual allegations contained in the complaint." (citing Bell Atl. Com.v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewiczv. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Fid. 

### &Guar. Ins. Underwriters, Inc. v. United States, 805



### 4F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). "Determination ofjurisdiction startswith the complaint, which mustbewell-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defensethat may be interposed." Holleyv. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 713 (2010). A plaintiffneed only state in the complaint "a short and plain statementofthe groundsforthe court'sjurisdiction," and "a shortand plain statementofthe claim showing thatthe pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Igbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim for relief, "[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim." Bradleyv. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Mczeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and 

### A. Miller, Federal Practice and Procedure§ 1286(3d ed. 2004)); Briscoev. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) ("[C]onclusory allegations unsupported by any factual assertions will not withstand a motiontodismiss."), affd,460 U.S. 325 (1983). "Aplaintiff'sfactual allegations must'raise a right to relief above the speculative level' and cross 'the line from conceivable to plausible."' Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed. Cir. 2014). As stated in Ashcroftv. Igbal, "[a] pleading that offers 'labels and conclusions' or'a formulaic recitation ofthe elements ofacause ofaction will notdo.' 550 U.S. at555. Nordoesacomplaintsuffice ifittenders 'naked assertion[s]'devoid of'further factual enhancement."' Ashcroft v. Igbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555). Defendant moves to dismissthe claims asserted in plaintiff's complaint as outside of the court's subject matterjurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). Defendant argues that this court lacks subject matter jurisdiction to consider plaintiff's allegations that sound in tort or criminal law. Plaintiff makes multiple general allegations in hercomplaint, and to the extentthat plaintiff's complaint asserts a list oftortious claims including "invasion of privacy," "endangering a child," "sexual exploitation/child exploitation," "Harrassment," "intimidation," "corporation violation,"2 "Humiliation," and "Human trafficking." Those claims sound in tort or allege criminal acts. The Tucker Act expressly excludes tort claims from the jurisdiction of the United States Court of Federal Claims. See 28 U.S.C. § 1491(a) ("The 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 ofan executive department, or upon any express or implied contract with the

2 Plaintiff's allegation of a "corporation violation" is so broad, non-specific and unintelligible it is not clearwhatwould be the basis forthis court'sjurisdiction. 

### 5United States, or for liquidated or unliquidated damages in cases not sounding in tort.") (emphasis added); see also Keene Corp. v. United States, 508 U.S. 200, 214 (1993); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.) ("Because Brown and Darnell's complaints for 'fraudulent assessment[s]' are grounded uponfraud, which is atort, the court lacksjurisdiction overthose claims."), reh'g denied (Fed. Cir. 1997); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n.8 (Fed. Cir.), reh'g denied, en bane suggestion declined (Fed. Cir.), cert. denied, 513 U.S. 961 (1994); Hampel v. United States, 97 Fed. Cl. 235, 238, aff'd, 429 F. App'x 995 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 1105 (2012); Jumah v. United States, 90 Fed. Cl. 603, 607 (2009) ("[l]t is well-established that the Court of Federal Claims does not have jurisdiction over tort claims. Here, Mr. Jumah seeks damages for '[n]eglect, [m]isrepresentation, [f]alse [i]mprisonment, [c]onspiracy, [i]ntentional [i]nfliction of emotional [d]istress, [i]nvasion of [p]rivacy, [n]egligence and [t]respass and [p]unitive [d]amages.' These are all claims sounding in tort." (internal citation omitted; all brackets in original)), aff'd, 385 F. App'x 987 (Fed. Cir. 2010); Woodson v. United States, 89 Fed. Cl. 640, 650 (2009); Fullard v. United States, 77 Fed. Cl. 226, 230 (2007) ("This court lacks jurisdiction over plaintiff's conspiracy claim because the Tucker Act specifically states that the Court of Federal Claims does not have jurisdiction over claims 'sounding in tort."'); Edelmann v. United States, 76 Fed. Cl. 376, 379-80 (2007) ("This Court 'does not havejurisdiction over claimsthat defendantengaged in negligent, fraudulent, orother wrongful conductwhen discharging its official duties'

... [and] Plaintiffs' claims offraud, misrepresentation, slander, perjury, harassment, intimidation, coercion, theft, and defamation, and their claims thatthe Government deprived Ms. Edelmann of her right to afairtrial, aretortclaims." (quoting Cottrellv. United States, 42 Fed. Cl. 144, 149 (1998)); McCullough v. United States, 76 Fed. Cl. 1, 3(2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed. Cir.), cert. denied, 552 U.S. 1050 (2007); Agee v. United States, 72 Fed. Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed. Cl. 732, 739, aff'd, 204 F. App'x 885 (Fed. Cir.), reh'g denied (Fed. Cir. 2006). Plaintiff's claims sounding in tort, such as "invasion of privacy," "Harrassment," "intimidation," or "Humiliation," must, therefore, be dismissed for lack ofsubject matterjurisdiction. Totheextentthatplaintiffallegations are characterized as acts ofcriminal conduct, such as "endangering a child," "sexual exploitation/child exploitation," and "Human trafficking," this court also lacks jurisdiction to adjudicate those claims. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also Cooperv. United States, 104 Fed. Cl. 306, 312 (2012) (holdingthat"this courtdoes not havejurisdiction over[plaintiff's] claims becausethe court may review neithercriminal matters, northe decisions ofdistrict courts.") (internal citations omitted); Mendes v. United States, 88 Fed. Cl. 759, 762, appeal dismissed, 375 F. App'x 4 (Fed. Cir. 2009); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (holdingthatthe United States CourtofFederal Claims lackedjurisdiction over claims arising from the violation ofacriminal statute); Matthews v. United States, 72 Fed. Cl. 274, 282 (finding that the court lacked jurisdiction to consider plaintiff's criminal claims), recons. denied, 73 Fed. Cl. 524 (2006); McCulloughv. United States, 76 Fed. Cl. at 4 (finding that the court lacked jurisdiction to consider plaintiff's criminal claims). Accordingly, to the extent plaintiff raises allegations asserting criminal acts, those allegations must be dismissed for lack ofsubject matterjurisdiction. 

### 6Furthermore, Ms. Stewart does not appear to assert any specific wrongful act by a Federal agency, official, oremployee. Instead, thecomplaintattemptsto allegewrongful acts by an unidentified congressman and unnamed Indiana state workers. The United States Supreme Court has indicated, for suits filed in the United States Court of Federal Claims and its predecessors, "ifthe reliefsought is against othersthan the United States the suit as to them must be ignored as beyond thejurisdiction ofthe court." United States v. Sherwood, 312 U.S. 584, 588 (1941) (citation omitted); see also Kurt v. United States, 103 Fed. Cl. 384, 386 (2012). Stated differently, "the only properdefendantforanymatter beforethis court isthe United States, notitsofficers, noranyotherindividual." Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003); see also United States v. Sherwood, 312 U.S. at 588; May v. United States, 80 Fed. Cl. 442, 444 ("Jurisdiction, then, is limited to suits against the United States."), aff'd, 293 F. App'x 775 (Fed. Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2008). It is, therefore, well-established that this court does not havejurisdiction to hearany claims against defendants otherthan the United States. Moreover, with respectto Ms. Stewart's referencesto an unidentifiedcongressman and Federal agencies, including the "Department of housing and urban Development," "Department of Justice," "Department of education," "Civil rights commission," "human relations," "Department of Descrimination," and "US Capitol," even granting the more liberal construction afforded to prose plaintiffs, Ms. Stewart's allegations are so vague so as to be unclear regarding whatwould be the basisforthis court'sjurisdiction. Finally, the court notes that plaintiff has failed to paythe filing fee orfile a motion to proceed in forma pauperis in the above captioned case. Therefore, before the Clerk's Officefiles anothercomplaintfrom the plaintiff, plaintiffmusteither paythefiling fee orfile a motion to proceed in forma pauperis. CONCLUSION Defendant's motion to dismiss is GRANTED, and plaintiff's complaint is DISMISSED. The Clerk's Office shall enterJUDGMENTconsistentwith this Order. IT IS SO ORDERED.



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# fa~**~MARIAN** BLANK HORN Judge