oRr0lNAt

Iln t\t @nitr! $ltatts [.ourt of /r[prs[ @Isims

No. l3-363C

(Filed: June 4,2014)

+*,*r**{<*)t*+:t"t*:}*:t**.**,r**t ** * *** ** {.,t*

JULIO VILLARS,

Plainrifl, :*

v. r.

THE UNITED STATES,

*

Defendant. *

*

* * * * * * *,t,*,* + * * + * {( * * * * * * * :} * * * * * :r * * * * 1( * *

DAMICH, Judge.

In this action, Plaintifr Julio villars, acting pro se, alleges that the united states ("Defendant")t breached an impried-in-fa.t 

"ontrii 

.'"rtr, 'piaintiff, 

who, purswmt to the alleged contract, provided services as a confidential human source c,cHs,) in exchanle for an S Visa' 

Plaintifls 

' which could lead to legar permanent residence in trre unitei a.il;. d; contract-based claims constitute counrs I, II and IV ofthe complaint.l piririiir

further claims that Defbndant took his property without just compensation in violation of the Fifth Amendment (count III). Defendant hu, -ou"d to dir.iss counts r, I unJrv io. lack of subject matter jurisdiction, on the grounds that theseclaims request the remedy of

' Plaintiffnames a number of entities and individuals in his complaint as "Defendants" other than the Unitedstates. compl. fl r. ar *r" onty proier deiendant in this court is the united States, the court dismisses the claims against these individuals and entities see Llnited States.v sherwood,3l2 u.s. 5g4, 58s (194r); Brownv. (Jnired States, 105 F.3d 621, 624 (Fed,.Cir. 1997).

2 Pursuant to 8 U.S.C. $.1 l0l(aX15)(S), the Attomey General has been granted the authority to issue a nonimmigrant S Visa to a person ,,in possession ofcritical reliable informationconcemingacriminilorganizariono.'""i;;.i;;...[who]...hassupplied

such information to Federar or state law enforcement u,rtho.iti", or a Federal or state court; and . . . whose presence in the united states the Attomey General determines is essential to the success ofan authorized criminal investisation. . . _,,

FILED

JUN 4 2rI4

'H;?-??'&1ffi

OPINION AND ORDER
specific performance. Defendant further moves to dismiss count III for failure to state a

claim upon which relief can be granted.

Because the Court finds that Plaintiffs counts I, II and IV seek the remedy of

specific performance, a remedy not afforded to this Court, it must grant Defendant's

motion with regard to these claims. Further, the court must dismiss count III because

Plaintiff has failed to state a claim upon which relief can be granted. Therefore, for the

reasons that follow, Defendant's motions to dismiss are GRANTED.

L Background Facts

In early 2008, Plaintiff alleges that while incarcerated and awaiting deportation to Honduras by Immigration and customs Enforcement ("rcE"), plaintiff co.-ntu"t.a, uy letter' Federal law enforcement agencies including the'Federar Bureau of Investigiion ("FBI") and the Drug Enforcement Administration 1"oEa";, offering to act as a.i informant' complainr ("compl.") nn 12,45. In hii letter, plaintiff $ecified that he was willing to act as an informant in exchange for receiving the infbrmant s visa which would enable him to later become a legal permanent ,"-.id"nt. Compl. fl 2.

In late 2008, plaintiff became a CHS, Def. Br., Ex. 1,2013 Decl. of William Roecker-u 6 ("Ex. l"), and continued as a CHS throughbctober 2010. Compl. During flli this time, plaintiff assisted in the ur.ert of sr.Ipe"ts and the ai."orr".y'or ili.gur drugs, Compl. 11112,41, and was paid at various ti... fo. U, efforts. Ex. f 1 S.- -

Plaintiffalso agreed to have a tracling device installed on his truck and for his business telephones to be monitored by the Govemment while acting as a cHS. compl. fltT 36-3s This relationship, plaintiff contends, created an imptiJi-n-Lct contract ;;r*;"'i;ir;; and the FBI. See generally Compl.

In 2009 and 2010, plaintiff 

Ex' 

was arrested for driving under the influence C,DUD. I tffl 10, 1l' As a result of rhe second DUI u,,"rt, pi;i*tff *as designared for deportation. Compl. fl 33. However, in order for plaintiff to remain in the country to testifu at the criminal trials for which he had actedas a cn!, irr" tirril&;;;?#.",. office obtained a material witness warrant. S* grrrroity Co"rpl-;;.rt_tb.";i;;i;. remained detained under the material witn".s *fiaot frJm Nou",nb". 10, 2010 to !::y !:201l- Compl. fl 39. His detention, pr"irtiii"ir"g*, caused him to have his truck repossessed and his family evicted. 1d

. 

At some point, the United states Attomey,s office determined that plaintiff 

s

tesllmony was no longer needed and for some unkno*n reason, praintiff was released rather than being deporred back to_Hondurar. E". ifir il,l3. To date, plaintiff resides in Chicago, Illinois. See pl. Br. 15; Compl. fl 16.

II. Procedural History

on May 29,2013 praintiff filed a four-count complaint in this court. praintiff

alleges that the FBI breached an implied-in-ruo .onou"i-i'count I), breached an implied
covenant ofgood faith and fair dealing (Count II), and that the agency conspired to

breach and interfere with an implied-in-fact contract (Count IV). Plaintiff asserts that

"his only purpose to enter into a contract with the United States govemment was to reap

the Immigration benefits offered in the Immigration and Naturalization Act, 8 U.S.C. $

l10l(a)(15)(S) [to] get the S VISA and become [a] legal permanent resident." Compl. fl 55. Plaintiff further claims that Defendant took his property without just compensation in

violation of the Fifth Amendment by (l) installing a transmitter on his truck, using his

vehicle and monitoring his telephones and (2) by incarcerating him as a material riritness

which lead him to lose his truck and company (count III). In response, Defendant filed

a motion to dismiss Plaintiff s complaint, or in the alternative, a motion for summary judgment pursuant to Rulesl2 (bX6) and 56 ofthe Rules of the united states court of

Federal claims ('RCFC").3 plaintiff timely responded in opposiriona il D.i";l;;

replied.

- 

On April 29,2014, the Court ordered supplemental briefrng with regard to whetherihis court hadjurisdiction over plaintiff s contract ctaimsl court 5rder (Dkt #

f!' Anril 29'2014). The court ordered the parties to address the question as to wiether this court had jurisdiction to order the Attomey General to issue an S visa which would enable Plaintiffto later become a legal permanlnt resident. Simurtaneous briefs were to be filed- o,n or before May 12'2014, 1d. Defendant complied and moved to dismiss counts I, II and IV of plaintiff s complaint pusuant to R^CFC 12(bx1). plaintiff did not timely respond.

III. Standard of Review

A. Pro Se Standard

^ To begin, parlies acting pr-o.se are generally held to ..ress stringent standards,, professionallawyers. than see,e.g.,Hainesv.krrrrr,'qiii.i.5t9,5t0_it'i;?4["or,nr,J

that allegations contained in a pro se compraint be herd to ,.less strrngent standards than iil g:i1l1ql i':T9, !f y" "") ;.pi u n' v' i'i,,i i,' zs c F. 3 d 1 3 3 5, 1 3 5 7 (Fed. rtL' 'vvz) ( [rJne preadlngs orpro se litigants should be held to a lesser standardih; rhose drafted by professionar lawyers . . . .). Nevertheless, '[t]he a.t trrur acted pro trpruinird"^ se in the.drafting of his complainr n'uy .*pfuin iL amUiguities, Uirt il;;;1r, excuse its failure, ifsuch rhere be." Iienkev. irittairo,u,60F.3d795,799(Fed. cir. 1995).

r 

Defendant's 

Because the Court finds the case ripe for dismissal, the Court need not address altemative motion for summary iudgment and denies the motion as moot.

a In his response in opp,osition, plaintiffalso requests discovery. In light ofthis opinion, the Court also deniei rne request as moot.
B. Motion to Dismiss under RCFC l2(bxl)

A motion brought pursuant to RCFC 12(b)(l) challenges the Court's subject

matter jurisdiction. see RCFC 12(bX1). Subject matter jurisdiction may be challenged at

any time by the parties, or as is the case here, by the court saa sponte. Boothv. unied

states,990F.2d617,620 (Fed. cir. 1993). Indeed, this court,slurisdiction to enterrain

claims and grant relief, like all Federal courts, depends on the extent to which the united

!_t11eg 

na1 waived sovereign immunity. United Siates v. Testan, 424 tJ.S. 3g2,3g9

( I 976). The burden of establishing the court's subject matter jurisdiction rests with the plainriff, who must establishj urisdic tion. Lujan v.-Defenders Lywnan|r,504 u.s. 555,

561 (1992); McNuu v. Gen. Motors Acc,eprance Corp. of Ina.,ig|U.{. hA, ne geli4.

Even so, when faced with a motion to dismiss for lack of subject matter jurisdiction, a-' court must assume that a undisputed facts alleged in the complaint *. i-., and it must drawallreasonableinferencesintheplaintiffs-favor. scheue)v,Rhodes,ciei.i.iii

236 (1974); see also Henke v. (lniteiSrates,60 F.3d 295, 797 (Fed.Cir. 1995).

C. Motion to Dismiss under RCF.C l2(bx6)

RCFC l2(bx6) allowsfor the dismissal of a complaint if, assuming the truth of ail the allegations, the complaint fails to state ""r"i. "p"r matterof irrtich relief may be granted as a law. Lindsavv. unitedstates,2g5Fsdi52,1257 (Fed.ci..iooz].-ivi"""'

the 

analyzing a motion to dismiss under RCFC rztuitolirt" L"rrt must also accept as true complainr's undisputed fa*ual allegario;;;;;;iJ."nstrue them in a light most favorabletoplainriff. Goutd, Inc.". uin;iitoi,slJ;za n71,1274(Fed.Cir. and l99l), "the. [f]actual allegations must be enough to ,ui." u.igfrt to relief above the speculative level.,' Belt Attantic Corp. 

". rirr*fiy,-iii U".s. S++, 555 (2007.

IV. Discussion

Defendant raises two

1g3es 

trral gris .",n ,".i.,:"Tilil,i;f ,T;:Ji';ffi::#tl""f:il:il* 

seeks specific performance ,:ii'h,j ," ralher than money d;;g;. G"ona, Defendant argues that

Lt1'r1tt{n", not adequarely pleaded a ,Jil; il;il, ti.,.rrtir.., his complaint state a claim upon which fails to relief may be granied.

A. This Court Lacks Jurisdiction over Counts I, II and IV

Defendant argues that by plaintiffs own words the alleged implied-in_fact contract never contemplated monetary damages uut trtui inri.uo the actual relief plaintiff seeks is specific performance. fnur,b"f.na'_t;;;;", 

beyond counts I, II and IV fall thejurisdiction of this coun as provided by the Tucker act.

Pursuant to the Tucker Act' 2g u.s.c. $ l4g l , this court maintains jurisdiction entertain monetary to claims founded upon ttt"r*ing, iiurri 

"r,rr" Constitution, money-mandating united statesstatutes and reguraitions'o, 

"ont u"tr. 2s u.s.c. I49l(axl) A contract whichintirles $

" 

p*vi""-."".y iu,iug., in the event of a breach
is such a money-mandating source. See Rick's Mushroom Service, Inc. v. United States,

521 F.3d 1338, 1343-44 (Fed. Cir. 2008). However, "consent to suit under the Tucker

Act does not extend to every contract." Holmes v. United States,657 F.3d 1303, 1309.

For instance, a contract claim seeking specific performance is not a remedy that this court

is empowered to grant. Nat 'l Center for Mfg. Sciences v. United States, 114 F .3d 196,

198 (Fed. cir. 1997). But because there is a presumption that money damages flow fiom

a breach of contract, see Holmes,657 F.3d atl3l4; see also sanders v. united states,

252 F '3d' 1329, 1334 (Fed. cir. 2001) (in govemment contracts there is a presumption

that a damages remedy will be available upon the breach ofan agreementj, wher; a

contract "could involve purely nonmonetary relief. . . it [i]s proper for the court to

require a demonsfation that the_agreements coutd fairly be interpreted as contemplating

money damages in the event of b reach." Holmes,6sT F.3d, at Ii15. In this instance, 

'

"[t]his court may require a plaintiff to render proofthat the contract can fairly be

interpreted as mandating compensation by the Federal Government.,, Higbie v. United

:!:::,', 1 t: Fed.,Ct. 35 8, 363 -64 (20 | 3) (quoring Hot me s, 657 F.3d ut r :Ts luaaitionui clranons omltted).

In this case, Plaintiffa eges in his complaint that the "only purpose,' to enter into the alleged implied-in-fact contract was to receive legal permanent residence through an S Visa and that he "never asked to be m_onetary[illy ,".,nin..ur.d... S", Co,"pi. ;fl ;;_;;. It is therefore clear to the court that by plaintiiisiwn words the 

"ll.g"d i;;ii"i_i;_f;; conracrrever contemplated monetary damages, but instead tt at th. rlli"f pLi"tiff i. 

--'

seeking is specific performance_of the utt.g"i 

"ont.u"i*iit, o"r.na*t. sp""rn""'y,

asking 

Plaintiff is requesting the specific perfo..i"." oiii6 uriegea implied-in-fact contract by this court to order the Attoiney General ortrr" uni"a sti., t" i.rr"li;;.{ "

Court 

Visa. 

must 

This Court does not possess jurisai",."," g;,;h relief. In light of this, the dismiss Counts r, rt anj ry f". il;l-;f;;j';Latter jurisdiction.

B. 

Granted

There are no Cognizable Takings Claims Upon Which Relief can be

The Takings Clause ofthe Fifth Amendment states thar .,private property not be taken [shall forl public use, wirhout jusr.;p;;:;;;;:;.s. 

claimanr alleging coNST. amend. V. A

a Fifth Amendmeni taktd;;i;;:;;show that the united srates, bv

::::lry..1fi. actior, tooka private propert! int...rt ro. puiti. "r.;i,h";l;r; 

v!E,vo, vr

present 

compensarion.', Short v. United St r"r. 5O f,.3d 9g4, rc06@ed. Cir. f llS;. fn tne case, Plaintiffa'eses 

First, Plaintiff 

two. takings ctartns, neiihe. orwhich are a cognizable claim. alleges thatbefena-,,"-"t ni. p.?p"r,, *iifr"rr:rst compensation violation in of the Fifth Amendment by. incar."."',i"g 

caused him liir u.l-ut".,ut witness which then to lose his truck -o ttu.r.ing *-f-].'ilil of this, plainriff 

as a material s detention witness does not qqger a takings .tuirn uni".1n. Fifth Amendment. Hurtado.v ,See Ltnitedstates'+touil:za,iss:89(6i,;'crh"detentionofamaterial

wrtness, in short, is simolv not a ,taking, una". tfre pilih'Amendment. 

Plaintiff . . .,,) Second, alleges rhat bv instalinga 

CHS, and by monitoring 

fan-smitter on rr" i."r.'ov using his vehicles while a

his relelhones, ,h";"i;;;;;;L'o toot tris property without iust
compensation. This argument also fails as Plaintiff consented to its use.5 Compl. lltf 14,

36-37 F.C,C. v. Florida Power Corp.,480 U.S. 245, 252 (9e7); Ruckelshaus v.

Monsanto Co.,467 U.S. 986, 1007 (1984). Therefore, the Court dismisses Plaintiffs

takings claims under RCFC 12(bX6) for failure to state a claim upon which reliefcan be

granted.

V. Conclusion

For the reasons set forth above the Court GRANTS Defendant's Motion to

Dismiss Counts I, II and IV for lack of subject matter jurisdiction pursuant to RCFC

l2(b)(1) and GRANTS Defendant's Motion to Dismiss Plaintiff s takings claims for

failure to state a claim pursuant to RCFC 12OX6). The Clerk is directed to enter

judgment accordingly.

EDWARD J: AMICH

Senior Judge

5 In his responsive brief, Plaintiffalso asserts that he was coerced into consenting

to wearing a radio transmitter. Pl. Br. 10. Even if the Court were to credit this allegation,

this court lacks jurisdiction for such a claim. See Crocker v. United States, 125 F.3d

147 5, 1476 (Fed. Cir. 1997) (Tucker Act does not create jurisdiction in the Court of

Federal Claims for a party contesting the propriety ofa seizure); Tabb Lakes, Ltd. v.

united states,10 F.3d 796, 802 (Fed. Cir. 1993) ("[The] claimant musr concede the

validity of the government action which is the basis ofthe takings claim to bring suit

under the Tucker Act.).