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# eberal <tClaims
No. 17-643C
(Filed: August 3, 2017) 

### ********************************** ) RICHARD 

### J. BOBKA, ) ) 

### Plaintiff, ) )**~** 

### ) ) 

### UNITED ST ATES, ) ) 

### Defendant. ) ) 

### ********************************** Challenge to conviction and imprisonment; contractual claims; statutory and rulebased claims;jurisdiction 

# FILED AUG - 3 2017
U

.S

. COURT OF FEDERAL CLAIMS

Richard J. 

### Bobka,pro se, Estill, South Carolina.

Isaac B. Rosenberg, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depaitment ofJustice, Washington, D.C., for defendant. With him onthe briefs
were Chad A. Readler, Acting Assistant Attorney General, Civil Division, RobertE. Kirschman, Jr., Director, and PatriciaM

.McCaithy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C.



### OPINIONAND ORDER
LETTOW, Judge.
Plaintiff, Richai·d J. Bobka, brings suit to challenge his allegedly unjust conviction and imprisonmentthat resulted from criminal charges filed againsthim in the United States District Courtfor the Middle District ofFlorida. Mr. Bobkapleaded guilty to multiple felony counts in 2012 and was sentenced to 180-months (15 years) imprisonment, buthe now alleges he was "forced" into entering contracts withthe government while under duress and that such contracts
were used to convicthim. He also alleges that the government violated numerous constitutional amendments, criminal andcivil statutes, and the Federal Rules ofCivil Procedure, and that the governmentengaged intortious conduct. He seeks damages, a vacated sentence, and an immediate release from prison, among other injunctive relief. Pending before the court is the government's motion to dismissplaintiffs complaint. For the reasons stated, the government's motion to dismiss is granted pursuantto Rules 12(b)(l) and 12(b)(6) ofthe Rules ofthe Court ofFederal Claims ("RCFC").



### 7017 1450 DODO 1346 3875

### BACKGROUND

On Febmary 10, 2012, Mr. Bobkapied guilty to multiple felony counts for his involvement in a "mortgage fraud conspirac[y]." 

### See UnitedStates v. Cavallo, 790 F.3d 1202, 1210 & n.1 (11th Cir. 2015); Acceptance ofPlea ofGuilty and Adjudication ofGuilt, 

### United States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012), ECFNo. 491. He did so through a "straight up plea" before the United States District Court for the Middle District of Florida. Guilty Plea Minutes, 

### United States v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Oct. 30, 2012), ECFNo. 487. 1 He was thereafter sentencedto 180-months imprisonment and ordered to pay approximately $22.8 million in restitution. Judgment at 3, 6, 

### UnitedStates v. Babka, No. 8:10-550-EAK-MAP-4 (M.D. Fla. Oct. 30, 2012), ECFNo. 823. Three ofthe approximately nineteen defendants involved inthe conspiracy appealed their convictions, but Mr. Bobka did not appeal his conviction or his sentence. 

### See Cavallo, 790 F.3d at 1210.

Mr. Bobka filed suit inthis coUlt on May 15, 2017, bringing claims for unjust conviction and false imprisonment. 

### See generally Campi. In support, Mr. Bobka alleges thathe entered into "acombination ofexpress, adhesion, and implied contracts" withthe government, and that those contracts were "usedto convict and imprison [him]." Comp!., 20. He fmther alleges that the government "forced" him to enter into those purported contracts while he was under duress. 

### See, e.g., Comp!.,, 3, 7, 49. Therefore, according to Mr. Bobka, the alleged contracts that formed the basis for his conviction and imprisonment should be considered "null and void." Comp!. , 21; 

### see also Campi. 

## ii, 1, 3.

In challenging his conviction and imprisonment, Mr. Bobka alleges that the government has violated seven constitutional amendments, specifically, the Fourth, Fifth (Due Process Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection Clauses) Amendments. Comp!.,23. He also invokes numerous criminal statutes, provisions of the Civil Rights Act (codified at 42 U.S.C. §§ 1985-86), the statute governing the oathtaken by justices andjudges (codified at 28 U.S.C. § 453), a provision ofthe Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-18), and the Federal Rules of Civil Procedure. 

### See Comp!.,, 25-38. Additionally, he alleges that the governmenthas committed fraud, acted negligently, damaged his reputation, conspired against him, inflicted emotional distress upon him, and abused him. 

### See Comp!.,, 32, 40, 43. To remediate the government's alleged wrongdoing, Mr. Bobkarequests that the court (1) award him approximately $47 million in compensatory and punitive damages, Comp!.,40, and (2) vacate his conviction and order his immediate release, among other injunctive relief, 

### see Comp!. at 16- 17.

1Mr. Bobkapied guilty four days after the trial ofthree other defendants and himselfhad begun. 

### See Cavallo, 790 F.3d at 1210 n.l, 1237. The otherthree defendants were convicted after ajurytrial, and their appeal from those convictions was resolved by the Eleventh Circuit's decision in 

### Cavallo. A number ofother individuals were involved in the fraudulent scheme. "Fifteen ofthe defendants' cohorts pied guilty eitherto the conspiracy count or to at least one substantive count." 

### Cavallo, 790 F.3d at 1210.


### 2

### STANDARDS FOR DECISION



### A. Jurisdiction

A plaintiffbears the burden ofestablishingjurisdiction by a preponderance ofthe evidence, 

### Taylor v. 

### UnitedStates, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and the leniency afforded

### prose litigants with respect to formalities does not relieve them of jurisdictional requirements, 

### Kelley v. 

### Secretary, UnitedStates Dep 't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

Pursuant to the Tucker Act, this comthasjurisdiction "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 in to1t." 28 U.S.C. 

### § 149l(a)(l). The Tucker Act waives sovereign immunity and allows a plaintiffto sue the United States for money damages, 

### UnitedStates v. 

### Mitchell, 463 U.S. 206, 212 (1983), but it does not provide a plaintiffwith substantive rights, 

### UnitedStates v. 

### Testan, 424 U.S. 392, 398 (1976). To establishjurisdiction, "aplaintiffmust identify a separate source ofsubstantive law that creates the right to money damages." 

### Fisher v. 

### United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant pmt) (citing 

### Mitchell, 463 U.S. at 216; 

### Testan, 424 U.S. at 398).



### B. Whether Plaintiff Has Stateda Plausible Claim

A defendant can seek dismissal under RCFC 12(b)(6) ifthe complaint fails to state a claim upon which the court can grant relief. Under that rule, a complaintmust "contain sufficient factual matter," which for the purpose ofthe motion the court assumes to be true, "to 'state a claim to reliefthat is plausible on its face."' 

### Ashcroft vIqbal, 556 U.S. 662, 678 (2009) (quoting 

### BellAt!. Corp. v. 

### Twombly, 550 U.S. 544, 570 (2007)). That rule is applied less stringently when the complaint is filed by a

### prose plaintiff. 

### Pieczenik v. 

### Bayer Corp., 474 Fed. Appx. 766, 770 (Fed. Cir. 2012) (citing 

### Hughes v. 

### Rowe, 449 U.S. 5, 9-10 (1980)). In such instances, the court should search the complaint and record "to see ifplaintiffhas a cause of action somewhere displayed." 

### Ruderer v. 

### United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969).
ANALYSIS



### A. 28 US.C. § 

### 1495

Mr. Bobka endeavors to invoke this court'sjurisdictionbyrelying on 28 U.S.C. § 1495, which provides the courtwith 'jurisdiction to renderjudgment upon any claim for damages by any personunjustly convicted ofan offense against the United States and imprisoned." 

### See Comp!. at I. A plaintiffbringing suit pursuant to 28 U.S.C. § 1495 must satisfy the conditions of 28 U.S.C. § 2513 by, mnong other requirements, alleging and proving that:

His convictionhas beenreversed or set aside on the ground that he is not guilty of the offense ofwhich he was convicted, or onnew trial or rehearing he was found



### 3

### not guilty ofsuch offense, 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

.... 28 U.S.C. § 2513(a)(l). The resulting requirements under these paired statutes have "always been strictly construed." 

### Vincin v. UnitedStates, 468 F.2d 930, 933 (Ct. Cl. 1972) (citations omitted). As a result, an unjust conviction and imprisonment claim mustbe established by either
a certificate or explicit finding ofinnocence granted by the court or apardon. 

### See Hadley v. United States, 66 F. Supp. 140, 141 (Ct. Cl. 1946); 

### see also Brickey v. United States, 116 Fed. Cl. 71, 79 (2014). Such a certificate or explicit finding ofinnocence or pardon must either expressly orby factual recitation state that the plaintiffhas satisfied the requirements ofSection 2513. 

### SeeAndolschekv. United States, 77 F. Supp. 950, 951 (Ct. Cl. 1948); 

### see also Sykes v. UnitedStates, 105 Fed. Cl. 231, 233 (2012). "In acting on a claim predicated upon Sections 1495 and 2513, this court 'does nothave the powerto review and ove1turn convictions or to review in detail the facts smrnunding a conviction or imprisonment.'" 

### Sykes, 105 Fed. Cl. at 233 (quoting 

### Zakiya v. UnitedStates, 79 Fed. Cl. 231, 234-35 (2007), 

### ajf'd, 277 Fed. Appx. 985 (Fed. Cir. 2008)). Because Mr. Bobkahas not alleged or established that he obtained a ce1tificate or explicit finding ofinnocence orthat he received a pardon in accord with Section 2513, his unjust conviction claim must be dismissed. That dismissal should be entered under RCFC 12(b)(6) rather than RCFC 12(b)(l). 

### See Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1354 (Fed. Cir. 2011) ("To the extent a successful claim against the governmentrequires compliance with all statutory elements ofthe claim, failure ofproofofan element ofthe cause of action means the p[laintiffl is not entitled to the reliefhe seeks. To conclude in such a case that the p[laintiff] loses because the forum is 'withoutjurisdiction' is to obscure the natme ofthe defect. It would be more accurate to conclude that the p[laintiff] has failed to prove the necessary elements ofa cause for which reliefcould be granted.") (quoting 

### Spruill v. Merit Sys. Prat. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992)); 

### see also Sykes, 105 Fed. Cl. at 234 (citing and quoting 

### Engage Learning, 660 F.3d at 1354;

### Adairv. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007); and 

### Fisher, 402 F.3d at 1171-76).



### B. Contract Claims

Mr. Bobka further alleges that he entered into express and implied contracts with the government in connection with his conviction and imprisonment. 

### See, e.g., Comp!.,, 1, 3, 7, 15-21. Claims for breach ofcontract typically fall within the court'sjurisdictionpursuant to the Tucker Act, 

### see 28 U.S.C. § 1491(a)(l); 

### Bussie v. UnitedStates, 96 Fed. Cl. 89, 97 (2011), 

### ajf'd, 443 Fed. Appx. 542 (Fed. Cir. 2011), and there is generally a "presumption in the civil context that a damages remedy will be available upon the breach ofan agreement," 

### Sanders v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001). Nonetheless, "contracts that are entirely concerned withthe conduct ofparties in a criminal case, without a clear, unmistakable statementtriggering monetary liability, do not invoke Tucker Actjurisdiction." 

### Higbie v. UnitedStates, 778 F.3d 990, 993 (Fed. Cir. 2015) (citation omitted); 

### see also Sanders, 252 F.3d at 1334-35 (recognizing that "adamages remedy is not ordinarily available" where the alleged agreement "is entirely concerned with the conduct ofthe paities in a criminal case") (citing 

### Kania v. UnitedStates, 650 F.2d 264, 268 (Ct. Cl. 1981)); 

### Schweitzer v. UnitedStates, 82 Fed. Cl. 592, 596-97 (2008) (finding that the court lackedjurisdiction over plaintiffs' "contract claims arising out ofthe use



### 4ofplea agreements in the criminaljustice system" because such agreements did not "'clearly and unmistakably' subject[] the governmentto any monetary liability whatsoever for any breach") (citing 

### Sanders, 252 F.3d at 1335-36).
Here, Mr. Bobka pied guilty through a "straightup plea" in district court. Guilty Plea Minutes, 

### UnitedStates v. Babka, No. 8: 10-550-EAK-MAP-4 (M.D. Fla. Feb. 10, 2012); 

### see also Acceptance ofPlea ofGuilty and Adjudication ofGuilt, 

### UnitedStates v. Babka, No. 8:10-550- EAK-MAP-4 (M.D. Fla. Feb. 10, 2012). His complaint in this court references a series of alleged "contracts" in connection withthat guilty plea and conviction, 

### see, e.g., Comp!. 

## iii! 1, 20, but he fails to set forth any details or specific agreements that could subjectthe governmentto monetary liability, as required bythe Tucker Act, 

### see Higbie, 778 F.3d at 993. He instead suppmis his contract claims by alleging that the government's criminal prosecution established "an implied or constructive trust relationship" between himselfand the government, Comp!. 

## if 9, and that his incarceration has resulted in a contract that binds Mr. Bobka "to the government's terms," Comp!. 

## ii 15. This court, however, lacksjurisdiction over both constructive trust claims,


### see Frank & 

### Breslow, LLP v. UnitedStates, 43 Fed. Cl. 65, 68 (1999) (citations omitted), and implied-in-law contract claims where a party alleges that "the law imposes a duty in order to prevent injustice," 

### International DataProd. Corp. v. UnitedStates, 492 F.3d 1317, 1325 (Fed. Cir. 2007); 

### see also Hercules Inc. v. UnitedStates, 516 U.S. 417, 423 (1996) (explaining that TuckerActjurisdiction "extends onlyto contracts either express or implied in fact, and not to claims on contracts implied in law") (citations omitted). Mr. Bobka's contract claims therefore fall outside thejurisdiction ofthis couti.
C. 

### Constitutional Claims

Mr. Bobka also alleges that the governmenthas violated the Fourth, Fifth (Due Process Clause), Sixth, Seventh, Eighth, Eleventh, and Fourteenth (Due Process and Equal Protection Clauses) Amendments. Comp!. 

## ii 23. Under the circumstances, these stand-alone constitutional claims are not properly before this court becausethey are not money-mandating. 

### See Brown v. UnitedStates, 105 F.3d 621, 623 (Fed. Cir. 1997) (holding thatthe Fourth Amendment does not mandate payment and therefore such claims are not withinthejurisdiction ofthe court) (citing 

### Mitchell, 463 U.S. at 218; 

### Murray v. UnitedStates, 817 F.2d 1580, 1582-83 (Fed. Cir. 1987)); 

### Milas v. UnitedStates, 42 Fed. CL 704, 710 (1999) (holding thatthe couti lacksjurisdiction over Sixth Amendment claims because the Sixth Amendment is not money-mandating) (citations omitted), 

### ajj"d, 217 F.3d 854 (Fed. Cir. 1999); 

### Harris v. UnitedStates, 118 Fed. Cl. 180, 190 (2014) (ruling that claims under the Seventh Amendment are not properly brought in this court because the Seventh Amendment is not money-mandating) (citation omitted), 

### recons. denied, No. 14-229C, 2014 WL 6853273 (Fed. Cl. Dec. 5, 2014); 

### Trafny v. UnitedStates, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (providing that the court "does not havejurisdiction over claims arising under the Eighth Amendment, as the EighthAmendment 'is not a money-mandating provision."') (citations omitted); 

### Fullardv. UnitedStates, 78 Fed. Cl. 294, 301 n.12 (2007) (explaining that "the Eleventh Amendment has no application inthis court"); 

### LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the Equal Protection and Due Process Clauses ofthe Fifth and Fourteenth Amendments do notprovide "a sufficientbasis for jurisdictionbecause they do not mandate payment ofmoney bythe government") (citations omitted).



### 5

### D. Statutory andRule-Based Claims

Mr. Bobka's additional claims based upon federal statutes or rules, which include allegations related to criminal wrongdoing, the Civil Rights Act,judicialmisconduct, the RehabilitationAct of 1973, andthe Federal Rules ofCivil Procedure, arejurisdictionally unavailing. Mr. Bobka alleges violations ofmultiple criminal statutes, such as 18 U.S.C. § 1001, which criminalizes false statements, 

### see Comp!.'\['\[ 25-29, 34-35, but the court lacksjurisdiction
over these claims, 

### see Joshua v. UnitedStates, 17 F.3d 378, 379 (Fed. Cir. 1994) ("The courthas
nojurisdiction to adjudicate any claims whatsoever underthe federal criminal code."). He also attempts to invoke 42 U.S.C. §§ 1985 and 1986, Comp!.'\['\[ 31-32, but "jurisdiction over claims arising underthe Civil Rights Act resides exclusively inthe district courts," 

### Hardin v. United States, 123 Fed. Cl. 667, 671 (2015) (quoting

### Marlin v. United States, 63 Fed. Cl. 475, 476 (2005), 

### appeal dismissed, 146 Fed. Appx. 491 (Fed. Cir. 2005)). Mr. Bobka's claim of judicial misconduct based upon 28 U.S.C. 

### § 453, which governs the oath forjustices andjudges,

### see Comp!. '\[ 30, is also outside thejurisdiction ofthe court because that statute does notprovide Mr. Bobkawith "anindependent right to monetary damages," 

### Hardin v. UnitedStates, No. 14-557C, 2014 WL 4724472, at *3 (Fed. Cl. Sept. 23, 2014) (citation omitted). Further, Mr. Bobka's reliance on the Rehabilitation Act of 1973, 

### see Comp!. 

## if 33, is unavailing because "jurisdiction for such claims lies exclusively withthe district courts," 

### Searles v. United States, 88 Fed. Cl. 801, 805 (2009) (citing cases). The court also lacksjurisdiction over claims based uponthe Federal Rules ofCivil Procedure, as they are not money-mandating. 

### See Young v. UnitedStates, 88 Fed. Cl. 283, 288 (2009), 

### appeal dismissed, 367 Fed. Appx. 125 (Fed. Cir. 2009). Thus, none ofthe statutes or rules cited by Mr. Bobkaprovide this courtwithjurisdiction.


### E. Tort-Based Claims

Mr. Bobka also alleges thatthe government engaged intortious conduct, 

### e.g., fraud, negligence, and defamation. 

### See, e.g., Comp!.'\['\[ 32, 40, 43. This court, however, does nothave jurisdiction over allegations based in tort. 

### Rick's Mushroom Serv., Inc. v. UnitedStates, 521 F.3d 1338, 1343 (Fed. Cir. 2008). To the extentthat such claims fall withinthe Federal Tort Claims Act ("FTCA"), 

### see 28 U.S.C. §§ 2671-80; 

### see also 28 U.S.C. § 1346(b), the "district courts have exclusivejurisdictionto consider tort claims againstthe United States that fall within the purview ofthe FTCA,"

### Zhao v. UnitedStates, 91 Fed. Cl. 95, 100 (2010) (citing 28 U.S.C. 

### § 1346(b); 

### Wood v. United States, 961F.2d195, 197 (Fed. Cir. 1992)).



### F Statute of Limitations

Mr. Bobka's claims are also time-barred inpartby 28 U.S.C. 

### § 2501, which provides that
a claim must be "filed within six years after such claim first accrues." A cause ofactionfirst
accrues "when all the events which fix the government's alleged liabilityhave occurred and the plaintiffwas or should have been aware oftheir existence." 

### San CarlosApache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011) (quoting

### Hop/andBandof Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). Section 2501 isjurisdictional and carmot be tolled for equitable reasons. 

### John R. Sand & 

### Gravel Co. v. UnitedStates, 552 U.S. 130, 133-34 (2008).

6

### Here, Mr. Bobka alleges thatthe government's wrongdoing occurred "between January 1, 2010 and December 15, 2012." Comp!. 

## if 24. Therefore, because he did not file suit until May 15, 2017, Mr. Bobka's claims are time-barred to the extent that such claims accrued before May 15, 2011.

G. 

### Punitive Damages Additionally, Mr. Bobka requests punitive damages, 

### see Comp!. 

## if 40, butthe court lacks jurisdiction to grant such a request, 

### Bussie, 96 Fed. Cl. at 96 (citing 

### Environmental Safety Consultants, Inc. v. UnitedStates, 95 Fed. Cl. 77, 98 (2010) (in turn citing 28 U.S.C. § 1491(a); 

### Mastrolia v. UnitedStates, 91 Fed. Cl. 369, 382 (2010))).



### H Injunctive Relief Finally, Mr. Bobkarequests that the court vacate his conviction and order his immediate release, among other injunctive relief. 

### See Comp!. at 16-17. The court does nothavejurisdiction to provide such a remedy. 

### Taylor v. United States, 113 Fed. Cl. 171, 173 (2013) ("The Tucker Act does not provide independentjurisdiction over
.. , claims for equitable relief."). Even ifMr. Bobka's request is construed as a petition for a writ ofhabeas corpus, the court is not "among those courts empowered" to grant such a writ under the habeas statute, 28 U.S.C. § 2241. 

### See Ledfordv. UnitedStates, 297 F.3d 1378, 1381 (Fed. Cir. 2002); 

### see also Joshua, 17 F.3d at 380 ("[T]he Court ofFederal Claims does not havejurisdiction to review the decisions ofdistrict courts or the clerks ofdistrict courts relating to proceedings before those courts.").

CONCLUSION



### For the reasons stated, the government's motion to dismiss is GRANTED pursuant to RCFC 12(b)(l) and 12(b)(6). The clerk shall enterjudgmentin accord withthis disposition.

No costs.
It

### is so ORDERED.



### 7Charles F. Letlow Judge