0RlglNAL

lln tbt @nfte! btutts [.ourt of fp[erul @luimg

No. 15-56C FILED

(Filed: May 26,2015)

[/AY 2 6 2015

r. * * * * * + * {. {. {.,1. *. * * * * ;1. * * i< * * * * * * * * * x tl,k {< {. :* *

* u.s. couRT oF

FEDERALCLAI}GI

EARNEST GIBSON III. 

:

Plaintifl * Rule 12(b)(1) Motion to Dismiss, * Subject-Matter Jurisdiction; Pro Se

v. * Plaintiff; Claim for Declaratory and * Injunctive Relief; Medicare Fraud

THE LINITED STATES, * SChCMC.

*

Defendant. *

t,* {. r( * * {. :1. {. * * * * ri( * * * X r! X X X tr {. rt * * * * * * * * * * * I

Earnest Gibson III, Houston, T exas, pro se Plaintiff'

Anand R. Sambhwani, Trial Attorney, with whom were Beniamin Mizer, Assistant

Attorney General, Robert E. Kirschman, Jr., Director, and, claudia Burke, Assistant

Director, commercial Litigation Branch, civil Division, u.S. Department of Justice,

Washington, D.C., for Defendant.

OPINION AND ORDER

WHEELER, Judge.

Plaintiff Eamest Gibson III ("Mr. Gibson") brings this complaint concerning his

indictment in federal district court for violations of several criminal statutes as part of his

involvement in a $158 million Medicare fraud scheme. Mr. Gibson seeks declaratory and

injunctive relieffor violations of his constitutional rights in connection with his indictment

in the Medicare fraud scheme for which he was convicted in federal district court. On

March 20. 2015. the Govemment filed a motion to dismiss Mr. Gibson's complaint for lack

of subject matter jurisdiction alleging that Mr. Gibson does not seek monetary relief from

this Court or cite to a money-mandating source of law that would give the Court jurisdiction

under the Tucker Act. For the reasons set forth below, the Govemment's motion to dismiss

is GRANTED.
Factual Background

In 2012, the Government charged Mr. Gibson, among others,l as a co-conspirator

in a $ 158 million Medicare fraud scheme in the United States District Court for the

Southern District of Texas. See Indictment, at 6, 8, Dkt. No' l-2' the Medicare fraud

scheme involved "false claims [that] were submitted for Medicare reimbursement and in

which kickbacks were given to members of the conspiracy in exchange for referral of

Medicare beneficiaries for whom fraudulent claims were submitted." See Def.'s Mot. to

Dismiss at 1, Dkt. No. 8. As an alleged co-conspirator in the fraud scheme, Mr. Gibson

was charged with Conspiracy to Commit Health Care Fraud, l8 U.S.C. $ 1349, Conspiracy

to Defraud the United States and to Pay and Receive Health Care Kickbacks, $ 371, nine

counts of violations of the Anti-Kickback Statute, 18 U.S.C. S 2 and42 U.S.C. $$ 1320(a)'

7b(b), and Conspiracy to Commit Laundering of Monetary Instruments, 18 U.S.C' $$ 1347'

19s6(h).

Following a jury trial, Mr. Gibson was found guilty of the above charged offenses

on October 21,2014. See Verdict, United States v. Gibson, No. 12-600 (S.D' Tex. Oct.

21,2014), ECF No. 331. On January 21,2015, Mr. Gibson commenced this action in the

court seeking "declaratory relief, or in the alternative, injunctive relief," arguing that the

indictment "was constitutionally infirm." See Pl.'s Compl. at 1, 11-13, Dkt. No. 1. The

Govemment moved to dismiss Mr. Gibson's case for lack of subject matter jurisdiction on

March 20, 2015.

Discussion

I. Standards for Decision

Before the Court can hear the merits of a case, 'Jurisdiction must be established."

Rippa v. United States, 79 Fed. Cl. 639, 641 (2007). Thoughpro se litigants are generally

given more latitude in their pleadings, this does not relieve a pro se iitigant from

establishing a court's jurisdiction by a preponderance of the evidence. Moore v. United

States, 94 Fed. Cl. 456,460 (2010). Subject matterjurisdiction may be challenged at any

time by the parties or by the court, sua sponte. Id. when deciding a motion to dismiss for

lack ofsubject matter jurisdiction, the court "must assume that all undisputed facts alleged

in the complaint are true and . . . draw all reasonable inferences in the non-movant's favor."

Jefferson v. United States, 104 Fed. Cl. 81, 86 (2012).

The Tucker Act provides the Court with jurisdiction over "claims for money

damages against the United States founded either upon the Constitution, or any act of

I Mr. Gibson's son, Earnest Gibson IV, was also indicted as a co-conspirator in the Medicare fraud scheme.

He also filed suit in this Court, assefting identical claims to his father. See Pl.'s Compl., Earnest Gibson

IV v. United States, No. l5-57C (Fed. Cl. Jan.2l,20l5), ECF No l'
Congress or any regulation of an 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. $ 1a91(a)(1); Fisher v. United States, 402 F.3d 1167,' ll72

(Fed. cir. 2005). However, the Tucker Act itself "does not create a substantive cause of

action " Fisher' 402 F'3d at I172' Instead' a "plaintiff must identifz a separate source of

substantive law that creates the right to money damages." Id.; see also United States v.

Mitchell,463 U.S. 206,217 (1983) C'A statute is money-mandating if it can fairly be

interpreted as mandating compensation by the Federal Govemment for the damages

sustained"). This means "the other source of law must be reasonably amenable to the

reading that it mandates a right of recovery in damages." Rippa, 79 Fed. Cl. at 642.

il. Claims for Declaratory Judgment and Injunctive Relief

The court does not have jurisdiction over Mr. Gibson's claims for declaratory and

injunctive relief. Mr. Gibson is not seeking to recover money damages. That fact alone

provides the court with the basis to dismiss his complaint under the Tucker Act. See Todd

v. united stares, 386 F.3d 1091, 1095 (Fed. Cir. 2004) ("Absent a claim for presently due

money damages against the united states, the court of Federal claims does not have

jurisdiction under the Tucker Act").

Even if Mr. Gibson's complaint could be construed as seeking money damages,

none of the constitutional and statutory provisions Mr. Gibson cited in his complaint

provides this court with jurisdiction. Mr. Gibson identifies the sixth, Ninth, Tenth, and

Thirteenth Amendments to the Constitution as well as Article III, Section 2 of the

constitution, the Fifth Amendment Due Process Clause, and 42 U.S.C. $ 1981 as the bases

for his claims. These constitutional and statutory provisions, however, are not money

mandating. See. e'g., United States v. Connolll',716F'2d 882' 887-88 (Fed' Cir' 1983)

(holding the court has no jurisdiction under the First Amendment); Gable v. United states,

106 Fed. Cl. 294.295 (2012) ("Sixth Amendment is not money-mandating"); MendezCardenas v. United States, 88 Fed. Cl. 162, 167 (2009) ("this court may not hear claims

under Article III, Section 2"); Johnson v. United States, 79 Fed. Cl' 769' 77 4 (2007) ("This

court, however, cannot entertain claims brought under the Thirteenth Amendment because

it does not mandate the payment of money damages for its violation"); Fry v. united states,

72Fed. Cl. 500" 507 Q006) ("the Due Process clause of the Fifth Amendment [is] not

money mandating. Likewise, the Ninth and Tenth Amendment are not money

mandating"). Similarly, this Court does not have jurisdiction under the Civil Rights Act,

42 U.S.C. $ 1981, as jurisdiction under the Act resides exclusively in the district courts.

See Marlin v. United States, 63 Fed. CL.475,476 (2005).

Finally, the Court does not have jurisdiction over Mr. Gibson's complaint based

upon any of the five sources of law that Mr. Gibson newly raised in his response to the
Government'smotiontodismiss. Mr.Gibsoncitedto28U.S.C.$1331,28U.S.C.$1491,

28 U.S.C. $ 1495, 5 U.S.C. S 706, and Federal Rule of Civil Procedure C'FRCP') 57. See

Pl.'s Resp. at 4-7,Dkt. No. 9. But like the sources of substantive law that Mr. Gibson cited

in his complaint, none of these sources of law is money-mandating either.

First, 28 U.S.C. $ 1331 only establishes thejurisdiction ofthe federal district courts.

Hall v. United States,69 Fed. C1.51,56 (2005) ("The United States Court of Federal

Claims . . . is not a United States District Court and, therefore, does not have jurisdiction

over claims arising under 28 u.s.c. $ 1331). Second, though 28 u.s.c. $ 1491 establishes

the Court's jurisdiction, it only confers jurisdiction where a substantive right exists that

mandates the payment of money by the Government. Plaintiff must still identi$ a separate

money-mandating source of substantive law, which Mr' Gibson has not. See Fisher, 402

F.3d at 1172. Third, 28 U.S.C. $ 1495 does not apply because Mr. Gibson has not alleged

that his conviction was reversed or set aside nor has he attached a pardon or certificate of

innocence that would give this Court jurisdiction' S]'kes v' United States, 105 Fed' cl'

231,234 (2012). Fourth, 5 U.S.C. $ 706 is the standard of review the Court applies to bid

protest cases; it is not a money-mandating source of law. Finally, FRCP 57 is not a rule of

this Court and therefore is inapplicable to Mr. Gibson's complaint. Even if Mr. Gibson

had cited to Rule 57 of the Rules of the United States Court of Federal Claims, it would

still not provide the Court with jurisdiction because Mr. Gibson is not seeking a declaratory

judgment in connection with a procurement, see 28 U.S.C' $ 1491, or a declaratory

judgment in connection with 23 U.S.C. $ 1507 (giving the Court jurisdiction under Internal

Revenue Code Section 7428 pertaining to "status and classifications oforganizations under

section 501(c)(3)" of the code). Rather, Mr. Gibson is seeking a declaratory judgment in

connection with his indictment and conviction in the Medicare fraud scheme, which the

Court cannot provide. Pl.'s Compl. at 1 .

Conclusion

For the foregoing reasons, the Govemment's motion to dismiss is GRANTED.

IT IS SO ORDERED.

fl.-*C bPL

THOMAS C. WHEELER

Judge