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# I n the United States Court of Federal Claims

No. 13-31C

(Filed: April 29, 2013) ( NOT TO BE PUBLISHED )

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ROBERT DAVID NEAL,

Plaintiff,

v.

UNITED STATES,

Defendant.

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Robert David Neal, pro se , Terre Haute, IN.

Shari A. Rose, Trial Attorney, Commerci al Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C ., for defendant. With her on the brief were Stuart F. Delery, Acting Assistant Attorney Ge neral, Jeanne E. Davi dson, Director, and Kirk T. Manhardt, Assistant Director, Commercial Li tigation Branch, Civil Division, United States Department of Justi ce, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Robert Davi d Neal, who also uses the alias Da vid J. Nelson, requests monetary relief from the government in the amount of $1 0 million for the claimed breach of an express
contract in which Mr. Neal alle gedly appointed a government agency to act as a fiduciary for a
financial transaction. 1 Pending before the court is the government’s motion to dismiss for lack of

1 Mr. Neal is imprisoned in a federal f acility in Terre Haute, Indiana. Cf. United States v.
Neal , 294 Fed. Appx. 96 (5th Cir. 2008) (affirmi ng Mr. Neal’s senten ce for wire fraud, respecting which he was ordered to be incarcerated for a 327-month term in federal prison). Recently, Mr. Neal has filed more than ten civil actions either under his legal name or
his alias. See, e.g., Neal v. United States , No. 12-915C, 2013 WL 1715779 (Fed. Cl. Apr. 19, 2013); Neal v. United States , No. 12-368, 2012 WL 5995670 (Fed. Cl. Nov. 28, 2012); Nelson
v. United States , No. 11-465C, 2012 WL 5870711 (Fed. Cl. Nov. 19, 2012); Neal v. Neal , No 1:11-MC-12-TWP-TAB, 2011 WL 3 273149 (S.D. Ind. July 28, 2011)); Neal v. Oliver , No. 2:12- cv-00187-WTL-MJD (S.D. Ind.); see also Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 2.2 subject matter jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Ru les of the Court of Federal Claims (“RCFC”), respectively.

BACKGROUND 2

Mr. Neal claims that in 2012, he entered into an express contract with then-Secretary of the Treasury Timothy Geithner. Compl. ¶ 3. Mr. Neal alleges he a ppointed the Treasury Secretary as his fiduciary to conduct a trans action involving a $10 million bill of exchange, “an obligation of the United States.” Compl., Ex. 1 at 2. According to Mr. Neal’s submissions, a person named David J. Nelson ordered this bill of exchange to be paid to Fidelity Investments Co. to “effect the release of [a] lien believed to be held by Fidelity” against a trust belonging to
Mr. Neal. Id. at 1 (Letter from David Nelson to Ti mothy Geitner (Nov. 23, 2012)). Mr. Neal claims that the Secretary accepted “this appointme nt as his fiduciary without protest or notice otherwise” but failed to perform within the 31- day time constraint set forth in the fiduciary assignment, thus breaching the al leged contract. Compl. ¶¶ 3-7.

Mr. Neal filed this suit on January 14, 2013 against then-Secretary Geithner, see Compl., and amended his complaint on March 7, 2013 “to refl ect the proper defendant herein to be the ‘United States.’” Am. Compl. ¶ 2.

ANALYSIS

A. Jurisdiction

“[A] ‘court must satisfy itself that it has ju risdiction to hear and decide a case before proceeding to the merits.’” Hardie v. United States , 367 F.3d 1288, 1290 (Fed. Cir. 2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co. , 304 F.3d 1235, 1241 (Fed. Cir. 2002) (citing View Eng'g, Inc. v. Robotic Vision Sys., Inc. , 115 F.3d 962, 963 (Fed. Cir. 1997))). In considering a motion to dismiss for lack of subject matter juri sdiction, the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv.

, 846 F.2d 746, 747 (Fed. Cir. 1988) (citing Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183 (1984); Air Prod. & Chems., Inc. v. Reichhold Chems., Inc. , 755 F.2d 1559, 1562 n.4 (Fed. Cir. 1985)). When the court’s subject matter jurisdiction has been called into question by a motion filed under RCFC 12(b)(1), however, the burden of establishi ng the court’s jurisdiction reside s with the party seeking to invoke it, McNutt v. General Motors Acceptance Corp. of Ind. , 298 U.S. 178, 189 (1936), and this burden is not satisfied until proven by a preponderance of the evidence, Reynolds , 846 F.2d
at 748 (citing Zunamon v. Brown , 418 F.2d 883, 886 (8th Cir. 1969) (quoting McNutt , 298 U.S. at 189)).

Under the Tucker Act, this court has subj ect matter jurisdiction over claims founded “upon any express . . . contract with the United St ates.” 28 U.S.C. § 1491(a)(1). A well-pleaded

2 This statement of the circumstances relati ng to Mr. Neal’s claim is taken from the parties’ submissions and does not include any findings of fact.3 allegation of an express contract suffices for jurisdictional purposes and will not be dismissed pursuant to RCFC 12(b)(1). See Bank of Guam v. United States, 578 F.3d 1318, 1325 (Fed. Cir. 2009) (citing Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997)); see also Sheppard v. United States , 11-295C, 2011 WL 6370078, at *4 (Fed. Cl. Dec. 20, 2011) (refusing to dismiss for lack of subject matter ju risdiction a plaintiff’s claim stemming from an alleged contract and instead dismissing the case fo r failure to state a claim because the plaintiff failed to allege facts sufficient to establish that contract). Because Mr. Neal’s amended complaint alleges the existence of an express contract between himself and the government, the court ostensibly possesses subjec t matter jurisdiction and will not dismiss Mr. Neal’s claim under RCFC 12(b)(1).

The government alternatively contends that Mr. Neal’s complaint should be dismissed under RCFC 12(b)(6) because “it does not allege a valid contract.” De f.’s Mot. at 5. A complaint must be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Grayton v. United States , 92 Fed. Cl. 327, 331 (2010) (quoting Lindsay v. United States , 295 F.3d 1252, 1257 (Fed. Cir. 2002)). While “the allegations of the complaint should be cons trued favorably to the pleader,” id. (quoting Scheuer , 416 U.S. at 236), “[t]he court must also inqui re whether the complaint meets th e ‘plausibility st andard’ . . . , i.e., whether it adequately states a claim and provide s a ‘showing [of] any set of facts consistent with the allegations in the complaint,’” id. at 331-32 (quoting Bell Atlantic Corp. v. Twombly

, 550 U.S. 544, 560-63 (2007)). The f actual allegations must be e nough to raise a right to relief above the speculative level. Bank of Guam , 578 F.3d at 1326 (citing Twombly , 550 U.S. at 555).

To allege an express contract with the Un ited States, a plaintiff “must show a mutual intent to contract[,] including an offe r, an acceptance, and consideration.” Trauma Serv. Grp.

, 104 F.3d at 1325. A “contract with the United Stat es also requires th at the [g]overnment representative who entered or ratified the agreement had actual authority to bind [the government].” Id. At best, Mr. Neal’s complaint allege s that some employee of the government
received his offer to contract. See Compl. ¶ 5. The complaint does not demonstrate any intent on the part of the government to accept his offer and thus form a contract. As such, Mr. Neal has failed to allege the existence of an enfor ceable contract with the government, and he consequently has failed to state a clai m on which relief can be granted.

B. Application to Proceed In Forma Pauperis

Contemporaneously with filing his complaint, Mr. Neal submitted a motion for leave to proceed in forma pauperis. In its motion to dismiss, the governme nt also asks this court to deny Mr. Neal’s application to proceed in forma pauperis , citing a provision of the Prison Litigation Reform Act (“the Act”) 3 that requires a prisoner to pay the entire filing fee for an action upon its initiation if he has on three or more prior oc casions, while incarcerated or detained in any facility, brought an action or a ppeal in a court of the United St ates that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.

3 The Act was enacted as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 804, 110 Stat. 1321, 1321-66, 1321-73 (codified at 28 U.S.C. §§ 1915-1915A).4 Def.’s Mot. at 2 n.2 (citing 28 U.S.C. § 1915(g)). The Act contains an exception, not applicable here, for times when “the prisoner is under immi nent danger of serious physical injury.” 28 U.S.C. § 1915(g). The “three st rikes” provision of the Prison Litigation Reform Act was adopted by Congress as a means of addressing the many suits filed in federal courts by prisoners. See Resendez v. United States , 96 Fed. Cl. 283, 285 (2010).

Because Mr. Neal is a prisoner, the Act applie s. Consequently, the court is obliged to screen the complaint “as soon as practicab le after docketing.” 28 U.S.C. § 1915A(a); see Resendez , 96 Fed. Cl. at 286. If, upon carrying out that function, the court finds the complaint, or any portion thereof, “is frivol ous, malicious, or fails to state a claim upon which relief may be granted,” 28 U.S.C. § 1915A(b)(1), the court shou ld dismiss a prisoner’s suit that seeks redress “from a governmental entity or officer or em ployee of a governmental entity,” 28 U.S.C. § 1915A(a); see also 28 U.S.C. § 1915(e)(2)(B) (requiring the court to di smiss actions that are frivolous, malicious, or fail to state a claim upon which relief may be granted when a prisoner proceeds in forma pauperis ).

The Supreme Court has attempted to define wh at constitutes a frivolous claim, stating that the “term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanc iful factual allegation.” Neitzke v. Williams , 490 U.S. 319, 325 (1989). Therefore, a court is required to dismiss claims “based on an indisputably meritless legal theory,” as well as “claims whos e factual contentions are clearl y baseless,” including “claims describing fantastic or delusional scenarios.” Id. at 327-28; see also Resendez , 96 Fed. Cl. at 287;
Akinro v. United States , 91 Fed. Cl. 650, 657 (2010). “[A] findi ng of factual frivolousness is appropriate when the facts alleged rise to the le vel of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Young v.
United States , 88 Fed. Cl. 283, 291-92 (2009) (quoting Denton v. Hernandez , 504 U.S. 25, 33 (1992)). However, the court must ex ercise caution, and cannot dismiss an in forma pauperis complaint “simply because the court finds the plaintiff’s allegations unlikely.” McCullough v.
United States , 76 Fed. Cl. 1, 3 (2006) (quoting Denton , 504 U.S. at 33).

Mr. Neal has an extensive record of br inging claims concerning purported agreements involving himself, his alias, Mr. Nelson, and exorbitant sums of money supposedly passed
between the two that now have fallen under control of the United States. See, e.g., Neal , 2012 WL 5995670; Nelson , 2012 WL 5870711; Neal v. Banks , No. CV 10-5213 DSF(JC), 2010 WL 3629534 (C.D. Cal. Aug. 5, 2010). Mr. Neal and Mr. Nelson are, in fact, the same person, and therefore any notion of a contra ct between the two fails because it is impossible that a person
could contract with himself as an individual. Moreover, the claims rais ed by Mr. Neal in this instance bear a remarkable similarity to allega tions made in an action in this court filed by another prisoner incarcerated in the same federa l prison as Mr. Neal, and the complaint in that case was witnessed by a D. J. Nelson. See Compl., Taylor v. United States , No. 13-112C, 2013 WL 1094818 (Fed. Cl. Mar. 18, 2013). In short, Mr. Neal has fabricated a fictional and fantastic narrative, the framework of which he has passed on to others to replicate. As such, the court
concludes that Mr. Neal ’s claim is frivolous.

In asking that Mr. Neal’s application to proceed in forma pauperis be denied, the government cites to Neal , 2012 WL 5995670, and Nelson , 2012 WL 5870711, in support of its5 request. Def.’s Mot. at 2 n.2. The government’s suggestion is inapt. Both cited cases were dismissed under RCFC 12(b)(1) for lack of jurisdic tion, not for any of the grounds enumerated in the Act. As such, they do not count as “strikes” within th e meaning of the Act. 4 The government also argues that the court should coun t as a strike an order entered by the District
Court for the Central Dist rict of California. Id . That order adopted a magistrate judge’s recommendation that Mr. Neal’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 be denied for failure to st ate a claim and frivolousness. See Neal v. Banks , No. CV 10- 5213 DSF(JC), 2010 WL 3666715 (C.D. Cal. Sept . 13, 2010) (adopting the recommendation
made in Neal v. Banks , 2010 WL 3629534). The Ninth Circ uit has held, however, that “dismissed habeas petitions do not count as strike s under § 1915(g),” unless they are “little more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to avoid the penalties imposed by 28 U.S.C. § 1915(g). In such cases, the district court may determine that the dismissal of the habeas petition does in fact count as a strike for purposes of § 1915(g).” Andrews v. King , 398 F.3d 1113, 1122 & n.12 (9th Cir. 2005). In the circum stances of Mr. Neal’s case in the Central District of California, although the district court de termined that his claim was frivolous, there is no evidence to suggest that Mr. Ne al knew of the exception for habeas writs at the time he filed his complaint, nor that he styled his challenge as a habeas petition in an e ffort to avoid the threestrikes provision of § 1915(g). Although Mr. Neal now assuredly possesses knowledge of this exception, a factor that should be co nsidered if future habeas petiti ons are dismissed for failure to state a claim or frivolousness, th e court declines to find the dist rict court’s dismissal of his habeas petition in 2010 to be a strike for the pur poses of § 1915(g). The dismissal of this action
for frivolousness and failure to state a claim certa inly counts as a strike under the Act, but the court will not deny Mr. Neal’s application to proceed in forma pauperis because he arguably has not yet accumulated the requisite three strikes th at would bar him from proceeding in that way. 5

Because of Mr. Neal’s history and practice of filing false claims w ith attendant forged documents in this and other federal courts, th e Chief Judge of this court several weeks ago ordered the clerk to reject any fu ture complaints by Mr. Neal abse nt prior approval by the court.
See In Re Neal (Fed. Cl. Apr. 10, 2013).

4 A very recent decision, Neal v. United States , 2013 WL 1715779, rendered after the government filed its motion to dismiss, also dism isses a case brought in this court by Mr. Neal for lack of jurisdiction. In th at case, Mr. Neal sought damage s under 28 U.S.C. § 1495 for unjust imprisonment. In addressing the jurisdictional basis for Mr. Neal’s complaint in that case, the
court determined that he had submitted false and fraudulent documents purporting to support his claim. The court accordingly c oncluded that Mr. Neal’s claim in that case was both frivolous and an abuse of the judicial system. Id

.

5 Mr. Neal’s application for leave to proceed in forma pauperis is accordingly
GRANTED.6 CONCLUSION

For the reasons stated, the government’s motion to dismiss is GRANTED under RCFC 12(b)(6) because the plaintiff’s claim is frivolous and because plaintiff did not state a claim upon which relief could be granted. The clerk shal l enter judgment in accord with this decision.

No costs.

It is so ORDERED

.

_________________________ Charles F. Lettow Judge