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# FILED
No. 18-184C



### * * * * * * * * * * * * *
GARYC. BRESTLE,
Plaintiff,



### v

. UNITED STATES,

Defendant.


### * * * * * * * * * * * * * Filed:June22, 2018 

## JUN 222018

****** * * * * * * * * ****** * U.S

.COURTOF FEDERALCLAIMS

Motion to Dismiss; Subject Matter Jurisdiction; Pro Se Plaintiff; In Forma Pauperis; Tort; Criminal Jurisdiction; Eighth Amendmentto the United States Constitution; Freedom ofInformationAct.

GaryC. Brestle
, prose,Wellington, FL

. Jeffrey M. Lowry, Trial Attorney, Commercial Litigation Branch
, Civil Division
, United States Department of Justice, Washington, D.C
., for defendant. With him were Tara K. Hogan
,Assistant Director, Commercial Litigation Branch, Department ofJustice
, Robert E. Kirschman, Jr.
, Director
, Commercial Litigation Branch
, Department of Justice, and Chad A. Readier
,Acting AssistantAttorney General.

OPINION
HORN, J.

In the above-captioned case, pro se plaintiff Gary C. Brestle filed a complaint in this court alleging that he had served as an informantfor the United States
,through the Department of Justice (DOJ). Plaintiff states that he suffered "emotional distress" and "psychological damage" due to the DOJ's failure to apprehend "individuals," on whom plaintiff provided information in his role as an alleged informant. Plaintiffalso alleges that hewas kept in "solitaryconfinement"in violation ofhis rights underthe EighthAmendment to the United States Constitution. Plaintiffseeks an unspecified amountofcompensatory and punitive damages.

FINDINGS OF FACT

Plaintiffalleges thatthe DOJ has "intentionally and willfully" deprived the "f ederal court system"from viewing the "documentswhich illustrate clearly"the "crimes" reported by plaintiff
, as an informant
,to the DOJ

. Plaintiff further alleges that, as a result of the alleged concealment of"documents" by the DOJ, "he and his family live in constantfear of retaliation." Plaintiffclaims that on several differentoccasions, he filed requests under



### 7012 3460 0001 7791 8255the Freedom of Information Act (FOIA), seeking "documents" relating to "crimes" which he had reported to the DOJ. Plaintiffstatesthat in his most recent request for production ofdocuments, which was filed with the "Office of Information Policy, DOJ 2016," plaintiff provided the DOJ with:

the "exact verbiage" contained within DOJ's emails and letters, which illustrate without any ambiguity that individuals within the United States, South America, and the Middle Eastwhere at leastone ofthose individuals
was designated by the DOJ as an associate of the AL-QAEDA terrorist organization, and that the same individual was also associated with the murder ofajurors father in the US Virgin Islands, as stated by the "DOJ." Another ofthe morethan seven conspirators, (from the Middle East) was in fact investigated by the United Nations to determine if that individual was an actor in the assassination of the Prime Minister of Lebanon Rafik Harrarri. 1
(emphasis in original). According to plaintiff, "[a]ll documents" confirming that "[t]hese individuals engaged in a money laundering scheme, which involvedthe paying offofbank officials at Banco Santander Bank in Brazil, where US Citizenswere defrauded within the scheme," have been "repeatedly withheld from the courts." Plaintiff alleges that these "individuals were not apprehends, even though DOJ classified the documents as j(2) FOIA documents, which indicates that criminals 'should have been' apprehended." Plaintiffclaims that plaintiff "controls all ofthe FOIA requests made as previously stated, The facts Plaintiff stated to the DOJ were crystal clear, pointing out dates, times, and individuals names." Plaintiff also alleges that "[t]hese individuals" have contacted one of his family members, and, "[d]ue to the fact that these individuals

. . . were not apprehended," plaintiff has suffered "emotional distress" and "psychological damage." Additionally, plaintiff alleges that he was placed into "'solitary confinement' (cell 302), when he in fact would not cooperate with the destruction of certain records." Plaintiff asserts that being placed in "'solitary confinement"' violated his rights under the Eighth Amendmentto the United States Constitution.

On February 5, 2018, plaintiff filed his complaint in the above-captioned case in this court. In his complaint, plaintiffcontends that "[t]he 'TuckerAct' provides the proper vehicle for Plaintiff. See 28 U.S.C. 1491, 1346(a)(2)." Plaintiffargues that his "claims are cognizable to renderthe United States liable for damages underthe TuckerAct," and he seeks monetary damages in an unspecified amount as compensatory and punitive damages. Also on February 5, 2018, plaintiff filed a document titled "PERMISSION TO PROCEED IN FORMA PAUPERIS,"as plaintiffclaimsto have "no othersource ofincome other than social security." The court notes that plaintiff has not submitted a completed copy of the United States Court of Federal Claims' Application to Proceed 

## !n Forma Pauperis, and simply makes a statement in the document he titles "PERMISSION TO

1 Plaintiff's capitalization, choice of words, spelling errors, grammatical errors, and fragments of sentences, which appear throughout plaintiff's complaint, have been included in this opinion when quoted unchanged.



### 2PROCEED IN FORMA PAUPERIS" that plaintiff is "requesting permission to proceed in forma pauperis in the attached action."

On March 16, 2018, plaintifffiled a document titled "PERMISSION TO AMEND," wherein plaintiff requests "permission to amend Plaintiff's initial filing," which was submitted to the court on February 5, 2018, "with the following facts, which the court will find clear and convincing." Plaintiff alleges that "[i]n January of 2012, and again in September of 2013 the United States preferred a series unsworn declarations pursuant to Title 28 U.S.C. 1746, illustrating that Plaintiff's life could be endangered, orat the very least face physical injury due to his role as a government informant." Plaintiff further alleges that:

Facts also illustratethatthe United States altered documents, and ordered thedestructionofotherdocument.Thesefactswere corroboratedwith interagency memos. Plaintiff requested on at leastseven different occasions to provide a "polygraph test" which would be in compliancewith policy, those requests were ironicallydenied.

On March 23, 2018, the court issued an Order denying plaintiff's March 16, 2018 "PERMISSION TO AMEND" his complaint, because plaintiffhad not included a proposed amended complaint with his motion to amend the complaint. The court also stated in the March 23, 2018 Order that only grounds which are within the court's jurisdiction are appropriate for an amended complaint, and plaintiffshould consider, priorto filing a new motion to amend the complaint, whether plaintiff's claims fall within thejurisdiction ofthe court.

On March 23, 2018, defendant filed "DEFENDANT'S MOTION TO DISMISS" plaintiff's complaint pursuant to Rule 12(b)(1) (2017) ofthe Rules of the United States Court of Federal Claims (RCFC), arguing that this court lacks subject matterjurisdiction
over plaintiff's claims. (capitalization in original). Defendant asserts that plaintiff's claim seeking monetary and punitive damages resulting from "emotional distress" and "psychological damage" should be dismissed because this court lacks jurisdiction to adjudicatetort claims. Defendant also arguesthatthis court does not havejurisdiction to entertain plaintiff's claim "that he is orwas being kept in solitary confinement in violation of the Eighth Amendment to the United States Constitution" because the Eighth Amendment is not a money-mandating source of law. Further, defendant contends that this court lacks jurisdiction over plaintiff's claims arising under the FOIA. Finally, defendantarguesthat28 U.S.C. 

### § 1346(a)(2) (2012), which plaintiffcites in his complaint
as a basisforjurisdiction in this court, "only applies to districtcourts," and does not apply to the United States Court of Federal Claims.

OnApril 3, 2018, plaintiffsubmitted afilingtothis courttitled "AMEND PLEADINGS PURSUANTTO RULE 15(A)(1), F.R.CV.P."Additionally, plaintiffsubmitted acopy of his February 5, 2018 complaint and a copy of his February 5, 2018 "PERMISSION TO PROCEED IN FORMA PAUPERIS" as attachments to his April 3, 2018 submission. The Clerk's Office did not file plaintiff's submissions because plaintiff's submission did not



### 3complywith the RCFC 5.5(d)(2) (2017), underwhich a party is required to file an original and two copies of any filing; RCFC 5.5(g) (2017), which requires that the name of the judge assigned to the case be included belowthe docket number in all filings; RCFC 5.3 (2017), which requires that a proof ofservice, showing the day and manner ofservice, the person or entity served, and the method ofservice employed be attached to the end of any original document and to any copies ofthat document, by the party executing a certificate ofservice; RCFC 11 (2017), which requiresthatevery pleading, written motion, and other paper must be signed by a party personally ifthe party is unrepresented.

On April 10, 2018, plaintifffiled adocumenttitled "OBJECTION, RE: MOTION TO DISMISS." In his April 10, 2018 objection, plaintiffalleges that defendantfails to mention "the fact that Federal codes were violated pursuant to the Federal Rules of Criminal Procedure under Titles 18 Sections 1505, 1513 and various other criminal statutes," in order to protect "individuals employed by defendant" from any "punishment or freedom from the injurious consequences of this action." Plaintiff claims in his April 10, 2018 objection that he was "'recruited"' by defendant

to reportcrimes involving (a) money laundering scheme, (b) defrauding U.S. Citizens, (c) paying off of bank officials to subvert international banking laws, (d) unlawful entry of illigal immigrants to the U.S. etc., and when Plaintiff became astounded of Defendant's lackto take action, Plaintiffwas placed in solitary confinement and told; "ifyou do not allow [us] to destroy these documents, then [you] will not leave solitary confinement."
(alterations in original). Plaintiff further states in his "OBJECTION, RE: MOTION TO DISMISS" that "the infliction ofemotional distress is real, and that all the statutes under the sun do not erase this emotional distress, because Defendant United States did not want to live up to it's contract with Plaintiff."2 Plaintiff requests that this court deny "DEFENDANT'S MOTION TO DISMISS" for lack of subject matter jurisdiction because "[t]his Court clearly hasjurisdiction which is authorized by Constitution, and statute."

On April 16, 2018, defendant filed a "DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO MOTION TO AMEND COMPLAINT," in which defendantcontendsthat neither plaintiff's complaint nor his objection to defendant's motion to dismiss establish any basis forjurisdiction in this court. (capitalization in original). Defendant notes that plaintiff, in his April 10, 2018 objection, alleges "that the 'United States did not want to live up to it[s] contract with Plaintiff"' and arguesthat "this allegation is not in the complaint and does not identifyany contract. Because this [the contract allegation] was not pied and is too vague to be wellpied, it should be disregarded." (first alteration in original). Defendantstatesthat plaintiff's "new motion to amend shows no proposed amended complaint and no basis for

2 In his complaint, plaintiff did not allege that he had a contract with the United States. The word "contract" is mentioned for the first time in plaintiff's April 10, 2018 "OBJECTION, RE: MOTION TO DISMISS."



### 4jurisdiction, either."3 Defendantfurther states that plaintiff's "complaint alleges onlytorts, and violations of the Eighth Amendment and FOIA," and that "none ofthese offers any basis forjurisdiction" in the United States Court of Federal Claims. In addition, defendant asserts that plaintiff's "new motion is essentiallythe same as his March 16, 2018 motion to amend," and that plaintiff's "new motion" does not include "any proposed amended complaint" and alleges only "criminal ortortious misconductoverwhich the Court has no jurisdiction."

On May 4, 2018, the court received from plaintiff a document titled "REQUEST FOR THIRTY DAY DELAY," for "returning the documents filed in accordance with the rules ofthis Court," and that "he be permitted to refile by the 28th day of May 2016." On May 10, 2018, the court issued an Order regarding plaintiff's "REQUEST FOR THIRTY DAY DELAY," statingthat"[i]fplaintiffintendsto submitadditional documentstothe court, plaintiff shall file the additional documents in accordance with the RCFC on or before Thursday, May 24, 2018." (emphasis omitted).

On June 7, 2018, defendant filed a "DEFENDANT'S NOTICE OF DOCUMENTS RECEIVED FROM PLAINTIFF,"wherein defendant notified the courtthat, "on oraround May 31, 2018," defendant had received documents from plaintiff which "are not yet reflected on this case's docket." (capitalization in original). In its notice, defendant stated that it "does not intend to file with the Court any response to these documents."Attached to defendant's June 7, 2018 noticewere the filings defendant had received from plaintiff, which included adocumenttitled, "MOTION IN RESPONSETOTHE COURT'S ORDER,"
acopyofplaintiff's February5, 2018 complaint, 4 adocumenttitled "AMEND PLEADINGS PURSUANT TO RULE 15(a)(1), F.R.CV.P," and a document titled "SUPPLEMENT, PLEADING SPECIAL MATTERS RULE 9(b)."

In plaintiff's "MOTION IN RESPONSE TO THE COURT'S ORDER," which was attached to defendant's June 7, 2018 notice, plaintiffstatesthat plaintiffwas "responding to the Court's Order dated May 10, 2018 stipulating that Plaintiff must file the proper number of copies pursuant to Rule 5.5(d)(2)(2017)(RCFC), and make proper service of all documents (including request to proceed IFP), on Defendant United States."

3 The "new motion to amend" referred to by the defendant appears to be plaintiff's April 3, 2018 submission titled "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1}, F.R.CV.P."

4 The copy of plaintiff's February 5, 2018 complaint attached to the "MOTION IN RESPONSE TO THE COURT ORDER" omitted the last sentence in plaintiff's February 5, 2018 complaint, which provided that "[p]laintiff's claims are cognizable to render the United States liable for damages under the Tucker Act, and as a result, Plaintiff seeks both compensatory, and punitive damages in this federal court," but otherwise was the
same as the previouslyfiled complaint.



### 5Additionally, in plaintiff's "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1), F.R.CV.P,"5which was attached to defendant's June 7, 2018 notice, plaintiffstates:

In 2012, and again in 2013 Special Assistant United States Attorney Michelle Seo located at the U.S. Department ofJustice Civil Division, P O Box 480 Ben Franklin Station Washington, D.C. 20044, contacted Ms. Christine Greene, a Department of Justice employee in Coleman, Florida requesting two separate unsworn declarations (signed by Mrs. Greene on both occasions), which articulated that there were illegal activities which occurred, and that it was of extreme importance that Plaintiff Brestle be protected. Here, Plaintiff believes that the office ofthe U.S. Attorney and Ms. Seo are both located within this Court's jurisdiction, and were acutely
aware ofthe facts stated in Ms. Greene's unsworn declarations.

In plaintiff's "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1), F.R.CV.P," plaintiff alleges that "Ms. Green's Vaughn Index on Plaintiff (forwarded to Special Assistant U.S. Attorney Seo, in Washington D.C.), which clearly spoke to Plaintiff's life being endangered." Plaintiff also alleges that he "clearly articulated in the attached initial complaintthat individuals involved in the conspiracy against the United States, were (a) not apprehended, and (b) were individuals who were known to have the abilityto cause physical harm or death to Plaintiff." Plaintiffstates that he has "set forth facts supported with conclusive evidence" in his motion to "AMEND PLEADINGS PURSUANTTO RULE 15(A)(1), F.R.CV.P," which, according to plaintiff, bring his "claims within thejurisdiction ofthis honorable court."

In plaintiff's "SUPPLEMENT, PLEADING SPECIAL MATTERS RULE 9(B)," plaintiffalleges that "certain individuals who committed crimes againstthe United States of America contacted a family member, seeking $400,000.00 in cash, known by Defendant. ('Tell them the money is coming from your daughter')." Plaintiff also alleges that "[o]n several occasionsSpecialAssistant U.S.AttorneySeo, Butler, and several other SAUSA possessed knowledge that Plaintiff's daughter was contacted, and that there existed otherdocuments illustrating the intention ordesireto do evil bythe individuals not apprehended."Additionally, plaintiffstates:

On several documents located within the Department of Justice, P.O. Box 480 Ben Franklin Station,Washington, D.C

.. 20044, and othersub agencies locatedwithinthejurisdictionofthiscourt, onedocumentin particularstates; "two exemptions (b6) and (b)(7)(c) were used on the documents to protect the name and phone numberofastaffmemberand to protect Brestle."The documents went on to say, "Not only could these parties face reputational harm, buttheycould alsoface acts ofreprisal." SIC. The documentwenton to say, "illegal activities occurred."

5 As discussed above, plaintiff's April 3, 2018, submission titled, "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1), F.R.CV.P" was not originally filed and was returned to plaintiff becausethe submission did not complywith the rules ofthis court.



### 6Plaintiffarguesthat plaintiff"is not beforethis Court seekingjusticeforthecoverup, or the violations of the Federal Criminal Codes, and Statutes by Defendant, Plaintiff is here seeking an award of both punitive and compensatory damages for the intentional neglect on the part of Defendant, by placing both Plaintiff and his family at risk of 'reprisal'," under an unspecified "Rule 9(b)," which, according to plaintiff, "states the following; 'Fraud or Mistake; Condition ofMind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally."' In addition, plaintiff attached to his filing titled "SUPPLEMENT, PLEADING SPECIAL MATTERS RULE 9(8)" redacted notices ofelectronicfiling from acase filed in the United States District Courtfor the Southern District ofGeorgia. Plaintiff, without explaining how the attached redacted notices of electronic filing are relevant to plaintiff's claims in the above-captioned case, asserts that "[t]he redactions made on the attached exhibits illustratethat Plaintiff's claims are notspeculation orconjecture."
Subsequently, on June 11, 2018, plaintiffattempted to file with the court the same four filings attached to defendant's June 7, 2018 notice, as well as a copy of plaintiff's February 5, 2018 filing titled "PERMISSION TO PROCEED IN FORMA PAUPERIS." On June 12, 2018, the court issued an orderfilling defendant'sJune7, 2018 "DEFENDANT'S NOTICE OF DOCUMENTS RECEIVED FROM PLAINTIFF" and plaintiff's fillings that
were attached to defendant's June 7, 2018 notice. (capitalization in original). The court instructed the Clerk's Office to return plaintiff's June 11, 2018 submissions because the submissions did not comply with RCFC 5.3, which requires proof of service, RCFC 11, and RCFC 24(c) (2017), which requires that a motion to intervene be served on parties in accordancewith RCFC 5, and because the documentswere duplicative ofdocuments already in the record.

DISCUSSION

The court recognizesthat plaintiffis proceeding prose.When determiningwhether
a complaint filed by pro se plaintiffs is sufficient to invoke review by a court, pro se plaintiffs are titled to a more liberal construction oftheir pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a prose complaint be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. 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 (2014), aff'd, 603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). However, "there is no 'duty [on the part] ofthe trial court

... to create a claim which [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 Bussiev. 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 plaintiff is held to



### 7a 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 preponderanceofthe evidence." Rilesv. 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 of showing jurisdiction by a preponderance of the 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 in 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. at253)).

As noted above, on February 5, 2018, plaintiff filed a "PERMISSION TO PROCEED IN FORMA PAUPERIS." In orderto provide accessto this courtforthosewho cannot pay the filing fees mandated by RCFC 77.1(c) (2017), 28 U.S.C. § 1915 (2012) permits a court to allow a plaintiffto file a complaint without payment offees or security, underspecific circumstances. Section 1915(a)(1) states that:
Subjectto subsection (b), any court ofthe United States may authorize the commencement, prosecution ordefense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment offees or security therefor, by a person who submits an affidavit that includes astatement of all assets such prisoner[6] possesses [and] thatthe person is unableto pay

6 A number of courts have reviewed the words of28 U.S.C. § 1915(a)(1), regarding in forma pauperis applications by non-prisoner litigants in federal courts, and have concluded that Congress did not intend for non-prisoners to be barred from being able to proceed in forma pauperis in federal court.**See,~.** Haynes v. Scott, 116 F.3d 137, 139 (5th Cir. 1997) (noting that "[!]here is no indication in the statute orthe legislative history of[§ 1915]thatCongress meantto curb

## Unforma pauperis] suits by nonprisoners."); Floyd
v. United States Postal Serv., 105 F.3d 274, 275-76 (6th Cir.), reh'g denied (6th Cir.1997); Schagenev. United States, 37 Fed. Cl. 661, 663 (1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998); see also In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (discussing how to administer in forma pauperis rights to a non-prisoner, thereby acknowledging the rights ofnon-prisonersto applyfor in forma pauperis status); Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996) (using "sic"following theword "prisoner" in 28 U.S.C. § 1915(a)(1)seeminglyto indicatethatthe use ofthatword was too narrow); Listerv. Dep'tofTreasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a)applies to all persons applyingfor

## Unforma pauperis] status, and notjustto prisoners."); Manning
v. United States, 123 Fed. Cl. 679, 682-83 (2015) ("The Federal Circuit has in effect endorsed this construction ofSection 1915 in a non-precedential decision. See Jackson
v. United States, 612 Fed. Appx. 997 at *2 (Fed. Cir. May 18, 2015) (affirming a Court of Federal Claims dismissal of a non-prisoner's complaint for frivolousness under Subparagraph 1915(e)(2)(B))."); Smith v. United States, 113 Fed. Cl. 241, 243 (2013);


### 8such fees or give securitytherefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's beliefthat the person is entitled to redress.

28 U.S.C. 

### § 1915(a)(1). Therefore, thestatute at28 U.S.C. 

### § 1915(a)(1) requires aperson to submit an affidavitwith a statement ofall the applicant's assets, and that the affidavit state the nature ofthe action, defense or appeal and affiant's belief that the person is titled to redress. See id.

When enacting the in forma pauperis statute, 28 U.S.C. 

### § 1915, Congress recognized that "'a litigantwhose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits."' Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzkev. Williams, 490 U.S. 319, 324 (1989)); see also 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). Accordingly, Congress included subsection (e) in the in forma pauperis statute, which allows courtsto dismiss lawsuits determined to be "frivolous or malicious." 28 U.S.C. 

### § 1915(e). The United States Supreme Court has found that "a court may dismiss a claim as factually frivolous only if the facts alleged are 'clearly baseless'

... a category encompassing allegations that are 'fanciful'

... 'fantastic'

... and 'delusional

... .'" Denton v. Hernandez, 504 U.S. at 32- 33 (internal citations omitted); see also Floyd v. United States, 125 Fed. Cl. 183, 191 (2016); Jones v. United States, 122 Fed. Cl. 543, 545 (2015); McCullough v. United States, 76 Fed. Cl. At 3; Schagenev. United States, 37 Fed. Cl. at663. Courts, however, should exercise caution in dismissing a case undersection 1915(e) because a claim that the court perceives as unlikelyto be successful is not necessarily frivolous. See Denton
v. Hernandez, 504 U.S. at 33. As stated bythe United States Supreme Court, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts availableto contradictthem."

## &

The standard in 28 U.S.C. 

### § 1915(a)(1) for in forma pauperis eligibility is "unable to pay such fees or give security therefor." Determination ofwhat constitutes "unable to pay" or unable to "give security therefor," and therefore, whether to allow a plaintiff to proceed in forma pauperis is left to the discretion ofthe presiding judge, based on the informationsubmitted bythe plaintifforplaintiffs.**See,~.** Rowland v. Cal. Men'sColony,

Powell v. Hoover, 956 F. Supp. 564, 566 (M.D. Pa. 1997) (holding that a "fair reading of the entire section [28 U.S.C. 

### § 1915(a)(1)] is that it is not limited to prisoner suits.''). Moreover, 28 U.S.C. 

### § 1915(a)(1) refers to both "person" and "prisoner." The word "person" is used three times in the subsection, while the word "prisoner" is used only
once. This court, therefore, findsthatthe single use oftheword "prisoner" in the language of28 U.S.C. 

### § 1915(a)(1) was not intended to eliminate a non-prisonerfrom proceeding in federal court in forma pauperis, provided that the civil litigant can demonstrate appropriate need. Anyother interpretation is inconsistentwith thestatutoryscheme of28 U.S.C. 

### § 1915.
9Unit II Men'sAdvisory Council, 506 U.S. 194, 217-18 (1993); Roberson v. United States, 115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App'x 966 (Fed. Cir. 2014); Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011). This court and its predecessors were established to make available a user friendly forum in which plaintiffs can submit their legitimate claims against the sovereign, limited only by the legislative decision to waive sovereign immunity as to the types ofclaims allowed. In fact, prominently posted at the entrance to this courthouse are the words ofAbraham Lincoln: "It is as much the duty of governmentto render promptjusticeagainstitself, infavorofcitizens, as it isto administer the same, between private individuals."
Interpreting an earlier version ofthe in forma pauperis statute, the United States Supreme Court offered the following guidance:

We cannotagreewith the court belowthatone must be absolutely destitute to enjoy the benefit ofthe statute. We think an affidavit is sufficient which states that one cannot because of his poverty "pay or give security for the costs

... and still be able to provide" himself and dependents "with the necessities oflife." To saythat no persons aretitled to the statute's benefits until they have sworn to contribute to payment ofcosts, the last dollarthey have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category ofpublic charges. The publicwould not be profited if relieved of paying costs of a particular litigation only to have imposed on itthe expense ofsupporting the person thereby madean object of public support. Nor does the result seem more desirable ifthe effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in orderto spare himselfcomplete destitution. Wethink a construction ofthe statute achieving such consequences is an inadmissible
one.

Adkins v. 

### E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948) (omission in original). In Fiebelkorn v. United States, forexample, aJudge ofthe United States Court of Federal Claims indicated that:
[T]he threshold for a motion to proceed in forma pauperis is not high: The statute requires that the applicant be 'unable to pay such fees.' 28 U.S.C. 

### § 1915(a)(1). To be 'unable to pay such fees' meansthat paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiffdestitute.

Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007); see also McDermott v. United States, 130 Fed. Cl. 412, 414 (2017) (quoting Fiebelkorn v. United States, 77 Fed. Cl. at 62); Fuentes v. United States, 100 Fed. Cl. at 92; Brown v. United States, 76 Fed. Cl. 762, 763 (2007); Hayes v. United States, 71 Fed. Cl. 366, 369 (2006).

10In his "PEMISSION TO PROCEED IN FORMA PAUPERIS," pro se plaintiff Gary Brestle indicatesthat he receives an amount of$1270.00 as monthly incomefrom "social security," out ofwhich he makes payments towards "car payment, insurance, additional living expenses." Plaintiff, however, has failed to provide any other details regarding his expenses or income. As noted above, plaintiff has not completed and submitted a copy ofthe United States Court of Federal Claims' Application to Proceed 

### !!:! Forma Pauperis form. Without more information on plaintiff's economic status, including knowing the
answers to the remaining questions contained in the court's Application to Proceed In Forma Pauperisform, such as whether plaintiffis employed, or has within the pasttwelve months received money in the form of rent, investments, gifts, or other sources, it is difficult to make a determination regarding plaintiff's qualifications to proceed in forma pauperis. Even if plaintiff was qualified to proceed in forma pauperis, however, his application is moot because, as discussed below, his complaint is dismissed for lack of subject matterjurisdiction pursuantto RCFC 12(b)(1).
"Subject-matterjurisdiction may be challenged at anytime by the parties or bythe court sua sponte." Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing Fanning, Phillips 

### &Molnarv. West, 160 F.3d 717, 720 (Fed. Cir. 1998)). TheTuckerAct, 28 U.S.C. 

### § 1491 grantsjurisdiction to this court as follows:

The United States Court of Federal Claims shall havejurisdiction to render judgment upon anyclaim againstthe United Statesfounded either uponthe Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied 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 overclaims againstthe United States (1) founded on an express or implied contract with 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 governmentfor 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 Alvarado Hosp

.. LLC v. Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied (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, afederal statute, ora regulation is cognizable underthe TuckerAct. The claim must be onefor moneydamagesagainstthe 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

11Federal Circuit identified three types ofmonetaryclaims forwhichjurisdiction is lodged in the United States Court of Federal Claims. The court wrote:

The underlying monetaryclaims are ofthreetypes

.... 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 Clappv. 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, eitherdirectly or in effect, require thatthe "particular provision oflaw relied upon grantsthe claimant, expressly or by implication, a right to be paid a certain sum." 

### !<:l; 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 money damages 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.

Ont. Power Generation. Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see alsoTwp. ofSaddle 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 Statesv. White Mountain ApacheTribe, 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 TuckerAct 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.

12United States, 487 F.3d at 876); Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (Theabsenceofamoney-mandatingsource is "fatalto thecourt'sjurisdiction under theTuckerAct."); Pricev. United States, 133 Fed. Cl. 128, 130 (2017); Peoplesv. United States, 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack ofsubject matterjurisdiction orfor failure to state a claim, this court must assumethatall undisputed facts alleged in the complaint
aretrueand mustdrawall reasonable inferences inthe non-movant'sfavor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all ofthe factual allegations contained in the complaint." (citing Bell Atl. Corp. 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 F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

"Determinationofjurisdiction startswith the complaint, which mustbewell-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defensethatmay 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 onlystate 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) (2017); Fed. R. Civ. P. 8(a)(1), (2) (2018); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-57, 570). To properly state a claim for relief, "[c]onclusory allegations of law and unwarranted inferences offact do not suffice to support a claim." Bradleyv. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Mczealv. 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)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) ("[C]onclusory allegations unsupported byanyfactual assertionswill notwithstand amotionto dismiss."), aff'd, 460 U.S. 325 (1983). "A plaintiff's factual 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 Ashcroft v. Igbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation ofthe elements ofa cause ofaction will not do.' 550 U.S. at 555. Nor does a complaint suffice if it tenders '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).

In the above-captioned case, plaintiffseeks compensatory and punitive damages resulting from "emotional distress" and "psychological damage" allegedly caused by the defendant's alleged failure to apprehend certain "individuals." Plaintiff asserts that he served asan informanttothe DOJ, wherein he reported "crimes"and provided information

13about those "individuals" who were not apprehended. Additionally, plaintiff alleges that the DOJ has "intentionally and willfully" concealed the information provided by plaintiff, and, as a result of the DOJ's alleged concealment, plaintiff has suffered "emotional distress" and "psychological damage." In "DEFENDANT'S MOTION TO DISMISS," defendant argues that this court lacks jurisdiction over plaintiff's claims for "emotional distress"and "psychological damage." (capitalization in original). According to defendant:

Mr. Brestle's complaint seeks monetary and punitive damages resulting from the "emotional distress and psychological damage" experienced as a result ofthe Government's alleged failure to apprehend certain individuals. However, this Court lacks jurisdiction to entertain tort claims, such as a claim for the intentional infliction of emotional distress. 28 U.S.C. 

### § 1491(a)(1); see also Keene Corp. v. United States, 508 U.S. 200, 214 (1993). Accordinglythis claim should be dismissed.
(internal references omitted).

A claim involving intentional infliction of emotional distress is a tort claim. This court, however, lacksjurisdiction overtort claims, including claims for intentional infliction ofemotional distress. See 28 U.S.C. 

### § 1491(a)(1) ("The United States Court of Federal Claims shall havejurisdiction

... in cases not sounding in tort."); see also Keene Corp.
v. United States, 508 U.S. at 214 ("[T]ort cases are outsidethejurisdiction ofthe Court of Federal Claims today."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 ("The plain language of the Tucker Act excludes from the Court of Federal Claims jurisdiction claims sounding in tort." (citing 28 U.S.C. 

### § 1491(a)(1))); Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) ("The courtwas also correct to hold that it lacksjurisdiction overtort claims."); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) ("The Court of Federal Claims is a court of limited jurisdiction. It lacks jurisdiction
overtort actions against the United States."); 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); Rohland v. United States, 136 Fed. Cl. 55, 65 (2018) ("[T]his court lacksjurisdictiontoentertain claimssounding in tort."); Kantv. United States, 123 Fed. Cl. 614, 616 (2015); Fullard v. United States, 77 Fed. Cl. 226, 230 (2007) ("This court lacksjurisdictionoverplaintiff'sconspiracyclaim becausetheTuckerActspecifically states thatthe Court of Federal Claims does not havejurisdiction over claims 'sounding in tort."'); 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); Gates v. United States, 33 Fed. Cl. 9, 12 (1995) ("With respect to claims for emotional distress, the court has long stated that it does not have jurisdiction to hear such claims because they sound in tort."). In contrast, "district courts have exclusive jurisdiction to consider tort claims against the United States that fall within the purview of the FTCA [Federal Tort Claims Act]." Bobka v. United States, 133 Fed. Cl. 405, 412 (2017); see also Rohland v. United States, 136 Fed. Cl. at65 ("Underthe FederalTort ClaimsAct, 28 U.S.C. 

### §§ 1346(b)(1), 2671-2680, jurisdiction over tort claims against the federal government lies exclusively in federal district courts." (citing U.S. Marine. Inc. v. United States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013))). Because plaintiff's allegations of

14infliction "emotional distress" causing "psychological damage" sound in tort, those claims must dismissed for lack ofjurisdiction.
Additionally, plaintiff alleges that his rights under the Eighth Amendment to the United States Constitution were violated. Plaintiff alleges, without much detail, that he
waswrongfully placed into '"solitary confinement"'when he would "notcooperatewith the destruction ofcertain records," which violated his rights underthe Eighth Amendmentto the United States Constitution. Defendant responds:

Mr. Brestle also makes avague claim that he is orwas being kept in solitary confinement in violation ofthe Eighth Amendment, this Courtdoes not have jurisdiction to entertain that claim either because the Eighth Amendment is not money-mandating. Trafnyv. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007).

Plaintiff's alleged Eighth Amendment violation also fails because this court does not have jurisdiction over claims brought under the Eighth Amendment to the United States Constitution. SeeTrafnyv. United States, 503 F.3d at 1340 ("The Court of Federal Claims does not have jurisdiction over claims arising under the Eighth Amendment, as the Eighth Amendment 'is not a money-mandating provision."' (citations omitted)); Mitchell v. United States, 136 Fed. Cl. 286, 289 (2018) (concluding thatthe court lacked jurisdiction over Eighth Amendment claims (citing Trafny v. United States, 503 F.3d at 1340)); Godfrey v. United States, 131 Fed. Cl. 111, 120 (2017) ("But, the Fourth, Sixth and Eighth Amendments, and the Due Process Clauses of the Fifth and Fourteenth Amendments are not money mandating." (citing Trafny v. United States, 503 F.3d at 1340)); Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010) ("Plaintiff avers that his rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Fourteenth, and Fifteenth Amendments were violated. None ofthese claims allege a violation for which money damages are mandated."); Tasby v. United States, 91 Fed. Cl. 344, 346 (2010) ("[T]he Eighth Amendment prohibitions of excessive bail or fines, as well as cruel and unusual punishment, are not money-mandating." (citation omitted)).
Additionally, plaintiffseeks relief regarding his FOIA requests and alleges that on several different occasions, plaintiff filed requests seeking "documents" relating to "crimes" which plaintiff had reported to the DOJ as an informant. In "DEFENDANT'S MOTION TO DISMISS," defendant asserts that, "[t]o the extent Mr. Brestle seeks relief under FOIA, this Court lacksjurisdiction to entertain FOIA claims. See Bernard v. United States, 59 Fed. Cl. 497, 503, aff'd, 98 Fed. Appx. 860 (Fed. Cir. 2004)." (internal references omitted) (capitalization in original). In "DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO MOTION TO AMEND COMPLAINT," defendant contends that plaintiff has not provided any explanation as to whythis court hasjurisdiction over plaintiff's FOIA claim. (capitalization in original).

15The statute regarding requests under FOIA, 5 U.S.C. 

### § 552 (2012), provides:

On complaint, the district court ofthe United States in the district in which the complainant resides, or has his principal place ofbusiness, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

See5 U.S.C. 

### § 552(a)(4)(B).Asajudge on this court has explained, plaintiff's claim under the FOIAfails because "[t]he FOIA lacks any money-mandating provisions. Furthermore, the FOIA expressly provides forjurisdiction in 'the districtcourt ofthe United States

... .' [T]he Court of Federal Claims is not a district court. Thus, the court lacksjurisdiction to consider the merits of any FOIA claim." McNeil v. United States, 78 Fed. Cl. 211, 225 (2007) (citations omitted); see alsoTreece v. United States, 96 Fed. Cl. 226, 232 (2010); Bernard v. United States, 59 Fed. Cl. 497, 503 (2004). Therefore, plaintiff's claim under the FOIAalso is dismissed.

In hisApril 10, 2018 objection to "DEFENDANT'S MOTIONTO DISMISS," plaintiff also argues that this court "clearly has jurisdiction which is authorized by Constitution" and cites "the Federal Rules of Criminal Procedure underTitles 18 Sections 1505, 1513 and variousothercriminal statutes." (capitalization in original). In "DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS, AND DEFENDANT'S OPPOSITION TO MOTION TO AMEND COMPLAINT," filed April 16, 2018, defendant argues that plaintiff "vaguely" alleges "criminal or tortious misconduct over which the Court has no jurisdiction." (capitalization in original).

Rule 1(a)(1) ofthe Federal Rules ofCriminal Procedure does not indicatethatthe Federal Rules ofCriminal Procedure applytothe United States Court of Federal Claims, but, rather, statesthatthe Federal Rules ofCriminal Procedure "govern the procedure in all criminal proceedings in the United States district courts, the United States court of appeals, and the Supreme Court of the United States." See Fed. 

### R. Crim. P. 1(a)(1) (2018). Moreover, thejurisdiction ofthe United States Court of Federal Claims does not includejurisdiction over criminal causes ofaction. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also Smith v. United States, 134 Fed. Cl. 689, 692 (2017) ("[T]he Court of Federal Claims lacks jurisdiction to entertain criminal matters, such as claims arising underthe federal criminal code orclaims regarding the conductofcriminal proceedings." (citing Joshuav. United States, 17 F.3d at379-80)); Khalil v. United States, 133 Fed. Cl. 390, 392 (2017) ("This court, however, 'has nojurisdiction to adjudicate any claimswhatsoeverunderthefederal criminal code."' (quotingJoshuav. United States, 17 F.3d at 379)); Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (holding that "this court does not have jurisdiction over [plaintiff's] claims because the court may review neither criminal 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) (stating thatthe United States Court of Federal Claims lacked jurisdiction over claims arising from the violation

16of a criminal statute); Fullard v

. United States, 78 Fed. Cl. 294, 301 (2007) ("Plaintiff alleges criminal fraud, asubject matteroverwhich this court lacksjurisdiction." (citing 28 U.S.C. 

### § 1491)); McCullough v. United States
, 76 Fed. Cl. 1, 4 (2006) (finding that the court lacked jurisdiction to consider plaintiff's criminal claims), appeal dismissed
, 236 F

. App'x 615 (Fed. Cir.)
, reh'g denied (Fed

. Cir.), cert

. denied 552 U.S. 1050 (2007).7 Any claim asserted by plaintiff asserting a claim based on criminal activity or implicating the Federal Rules ofCriminal Procedure
,therefore
,also mustbedismissed.
Finally
, in plaintiff's April 10, 2018 "OBJECTION, RE: MOTION TO DISMISS," plaintiffforthefirsttime allegesthe existence ofacontract, statingthatdefendant "did not wantto live up to it's contractwith Plaintiff." Not only isthisthefirst specific reference by plaintiffto a contract, but plaintiffalso has offered no evidence indicating that he entered intoacontractwith the United States. In ordertoproperly allege acontract,the complaint must allege the elements of a contract. "[A]ny agreement can be a contract within the meaning oftheTuckerAct
,provided that it meetsthe requirements for acontractwiththe Government, specifically: mutual intent to contract including an offer and acceptance, consideration
, and a Government representative who had actual authority to bind the Government."Trauma Serv. Grp. v. United States
, 104 F.3d 1321, 1326 (Fed

.Cir. 1997);
see also Russell Corp. v. United States
, 537 F.2d 474, 482, 210 Ct. Cl. 596
, 608 (1976) ("For there to be an express contract,the parties must have intended to be bound and must have expressed their intention in a manner capable of understanding

. A definite offer and an unconditional acceptance must be established."). In the above-captioned case, plaintiff's complaint has not alleged any of the basic elements of a contract, including: offer; acceptance; consideration; or that a government representative with actual authority signed a contract with plaintiff. Nor has plaintiff even alleged when the contract might have been executed
,orwhatweretheterms ofthe alleged contract. Even in his April 10, 2018 objection, which, for the first time
, uses the word contract, plaintiff does not allege the elements of a contract. The court, therefore, does not consider plaintiff's bald
, contract allegation and any such claim must be dismissed at thistime.

CONCLUSION

Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED for lack ofjurisdiction. The Clerk's Office shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

MARIAN BLANK HORN Judge

7The court notes,that recentlythe United States CourtofAppealsforthe Federal Circuit, in an unpublished opinion, restated that "[t]he Court of Federal Claims likewise lacks jurisdiction to adjudicate claims brought underfederal orstatecriminal statutes

."Spitters
v

. United States
,710 F

.App'x 896
,897 (Fed. Cir. 2018) (citing Joshuav

. United States, 17 F.3d at 379).

17