In the United States Court of Federal Claims

No. 20-1901C

(Filed: February 9, 2021)

NOT FOR PUBLICATION

 

)

Pro Se Complaint; Sua Sponte

Dismissal for Want of 

Jurisdiction; RCFC 12(h)(3); 

Transfer Not Warranted.

XUNXIAN LIU, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

 Defendant. )

)

ORDER OF DISMISSAL

Currently before the court is pro se plaintiff Xunxian Liu’s complaint. See ECF 

No. 1. Because the court lacks jurisdiction over the claims made in plaintiff’s complaint, 

the court must dismiss this case pursuant to Rule 12(h)(3) of the Rules of the United 

States Court of Federal Claims (RCFC). See RCFC 12(h)(3) (“If the court determines at 

any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 

I. Background

On December 14, 2021, plaintiff filed a complaint claiming that this “case is 

related to violation of [plaintiff’s] due process and equal protection of laws, required by 

the US Constitution, and also agency employees perpetrated misrepresentations, which 

are intentional torts (federal tort claim act, page 25).”1 ECF No. 1 at 1. Plaintiff’s 

statement of the claim reads, in its entirety, as follows: 

Please see details in Exhibits 1 and 2, which is the last version sent to 

Department of Justice. I received denying letters from HHS and MSPB

1 This is plaintiff’s first complaint filed in this court. On this same day, December 14, 

2020, plaintiff filed a second complaint in this court. See Xunxian Liu v. United States, Case 

No. 20-1902C, ECF No. 1. On January 14, 2021, the court dismissed plaintiff’s complaint in 

that case for want of jurisdiction. See Case No. 20-1902C, ECF No. 6 (order of dismissal). 
2

(Exhibits 3 and 4), and received several times of sum certain requirement 

from DOJ (Exhibit 5, last time). I sent my revision that is similar to the last 

version to HHS and MSPB, there is no response. Therefore, my efforts 

seeking administrative resolution are exhausted. Because the sum certain 

requirement and the denying letters suggest that these agencies do not

concede the facts I claim, I request affidavit discovery of related documents 

in DOJ, pursuant to Rule 56(d).

Id. at 2. 

Plaintiff is seeking “$100[,]000 for [Department of Health and Human Services] 

taking my biologist position without due process and $1[,]200[,]000 for 

misrepresentations (intentional torts) committed by many federal employees or the court 

determines the amount of compensations.” Id. at 3. Plaintiff attaches five exhibits to the 

complaint—a copy of her October 7, 2020 Federal Tort Claims Act (FTCA), 28 U.S.C. § 

1346, claim submitted on October 7, 2020 to the United States Department of Justice 

(DOJ), a copy of her dismissal personnel action, copies of filings before from her United 

States Merit Systems Protection Board (MSPB) case, various Maryland district court 

filings, and a November 3, 2020 DOJ letter notifying plaintiff that her FTCA claim is 

invalid—totalling thirty-eight pages. See ECF 1-1. 

II. Legal Standards

The court acknowledges that pro se plaintiffs are not expected to frame issues with 

the precision of a common law pleading. Roche v. USPS, 828 F.2d 1555, 1558 (Fed. Cir. 

1987). Therefore, plaintiff’s complaint has been reviewed carefully to ascertain whether, 

given the most favorable reading, any of plaintiff’s claims support jurisdiction in this 

court.

This court is one of limited jurisdiction. Specifically, the Tucker Act grants the 

court the authority to consider, “any claim against the United States founded either upon 

the Constitution, or any Act of Congress or any regulation of an executive department, or 

upon any express or implied contract with the United States, or for liquidated or 

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012). “A 

court may and should raise the question of its jurisdiction sua sponte at any time it 

appears in doubt.” Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 

1988) (citation omitted). 
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III. Analysis

A. Lack of Subject Matter Jurisdiction

The court lacks subject matter jurisdiction to consider plaintiff’s claims for due 

process and equal protection violations. To invoke this court’s Tucker Act jurisdiction, a 

claimant must show that her claim arises from a federal constitutional, statutory, 

regulatory, or contractual provision that provides damages for its breach. See United 

States v. Testan, 424 U.S. 392, 399 (1976); Hatter v. United States, 953 F.2d 626 (Fed. 

Cir. 1992). It is well settled that the violations of constitutional rights to due process and 

equal protection alleged by plaintiff do not fall within this court’s jurisdiction. See

Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997).

The court likewise lacks subject matter jurisdiction to consider claims sounding in 

tort, because tort claims are expressly excluded from this court’s jurisdiction under the 

Tucker Act. See 28 U.S.C. § 1491(a)(1) (giving the court authority to consider claims 

against the United States “not sounding in tort”); see also Aetna Cas. & Sur. Co. v. 

United States, 655 F.2d 1047, 1059 (Ct. Cl. 1981) (“Tort claims . . . are expressly beyond 

our Tucker Act jurisdiction.”).

Accordingly, plaintiff has not alleged any claims over which this court is 

authorized to exercise jurisdiction.

B. Transfer

Because plaintiff’s complaint is not within this court’s jurisdiction, the court 

considers whether transfer to another federal court is appropriate. Transfer of cases from 

this court to a district court is governed by 28 U.S.C. § 1631, which states in relevant 

part, as follows:

Whenever a civil action is filed in [this] court . . . and [this] court finds that 

there is a want of jurisdiction, the court shall, if it is in the interest of justice, 

transfer such action or appeal to any other such court . . . in which the action 

or appeal could have been brought at the time it was filed or noticed, and the 

action or appeal shall proceed as if it had been filed in or noticed for the court 

to which it is transferred on the date upon which it was actually filed in or 

noticed for the court from which it is transferred.

Id. Here, plaintiff’s complaint includes so few factual allegations that the court is unable 

to determine either whether transfer would serve the interests of justice in this case, or to 

which court a transfer would be made. As such, the court concludes that transfer is not 

warranted.
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IV. Conclusion

The court does not possess subject matter jurisdiction over this suit and this case

must be dismissed. Accordingly, the clerk’s office is directed to ENTER final judgment 

for defendant DISMISSING plaintiff’s complaint for lack of subject matter jurisdiction, 

without prejudice, pursuant to RCFC 12(h)(3). 

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge