1 

# In the United States Court of Federal Claims

No. 11

- 465C

(Filed: November 19 , 201 2 )

( NOT TO BE PUBLISHED )

**********************************

DAVID J. NELSON,

Plaintiff,

v.

UNITED STATES,

Defendant.

********************************** ) ) ) ) ) ) ) ) ) ) )

David J. Nelson, also known as Robert David Neal, pro se , Terre Haut e , Indiana.

Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the brief

w ere Stuart F. Delery, Acting Assistant Attorney General, and Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

P laintiff, David Nelson (a lso k nown a s Robert David Neal) , requests monetary relief from the government in an amount that would satisfy a final judgment rendered in his favor against a private party in a case in the United States District Court for the Northern District of California

. Pending before the court is the government’s motion to dismiss for lack of subject matter jurisdiction pursuant to R ule 12(b)(1) o f the Rules of the C ourt of Federal Claims (“RCFC”)

.2 BACKGROUND

Th is case ostensibly arises from a prior law suit in the Northern District of California in which Mr. Nelson prevailed against a man named Robert David Neal

. See Nelson v. Neal , No. 4 :0 9

- CV

- 05162

- PJH (2010)

. 1

$10,500.00 USD per calendar day, retroactive to January 3, 2008, plus interest at 10% per annum compounded daily, to run unabated until such time as the defendant agrees to comply with the Final Judgment [rendered] in case no. [4 :09

- CV

- 05162

- PJH ] in the United States Distric t Court for the Northern District of California and terminate its custody of the Plaintiff. That suit concerned wrongful detention of property and resulted in Mr. Nelson’s receipt of a writ of assistance or replevin for the delivery of th e pertinent chattel by Mr. Neal and his bailees, custodians, or warehousers

. Id. In the present suit, Mr. Nelson names as defendant the United States, operating through the United States Department of Justice, the Federal Bureau of Prisons, the Marshals Service and the Federal Bureau of Investigation, “plus all of their employees, agents or a ssigns

. ” Compl. at 1

. According to Mr. Nelson, these individuals were subject to the final judgment rendered in the Northern District of California

. Id

. at 1

. Mr. Nelson also asserts that he has been awarded “full an d complete habeas corpus relief ” thr ough that judgment. Id. at 2. He seeks a judgment from this court “which mirrors exactly what has already been granted to the Plaintiff as f ollows against [the government]

, ” which he alleges includ e s :

Compl . at 3

. 2

“[ A ] ‘ court must satisfy itself that it has jurisdiction to hear and decide a case before proceeding to the merits .’” Hardie v. United States , 367 F.3d 1288, 1290 (Fed. Cir. 2004) The government filed a motion to dismiss for lack of subject matter jurisdiction. The deadline for filing a response to this motion was September 17 , 2012. Th at date passed without a ny response by Mr. Nelson to the government’s motion.

ANALYSIS

Standard s for Decision

1 H is complaint actually refers to a different case number

, viz

. No. 3:09

- CV

- 05162

- PJH. No case by that number exists. What appears to be the proper action in th e Northern District of California, No. 4:09

- CV

- 05162

- PJH

, varies by only a single digit, identifies the same parties, and is cited by the government in its motion to dismiss. Plaintiff’s complaint attributes certain holdings to this case which do not appe ar in the opinion cited by the government. For example, plaintiff alleges that his prior suit granted habeas corpus as well as a judgment against government officials for money damages, neither of which appear in the cited case. A search of the Northern District of California’s electronic filing system yielded no suit matching the plaintiff’s description of his prior matter under any case number. As such, the court has treated the plaintiff’s substitution of “3” for “4” as a n error and addresses only case No. 4:09

- CV

05162

- PJH

.

2 Mr. Nelson is confined in a federal correctional institution located in Terre Haute, Indiana, apparently under the name of Robert David Neal. His true name , whether Nelson, Neal, or some other name, is not material to t he disposition of this action.3 (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 jurisdiction , the court will “normally consider the facts all eged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch

. Serv

. , 846 F.2d 746, 74 7 (Fed. Cir. 1988) (citing Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); Air Prod. & Chems., Inc. v. Reichhold Chems., Inc. , 755 F.2d 1559, 1562 n.4 (F ed. Cir. 1985 ) ). Wh en the court’s subject matter jurisdiction has been called into question by a motion filed under RCFC 12(b)(1)

, however, the burden of establishing the court’s jurisdiction resides with the party seeking to invoke it, McNutt v. Gen. Mot ors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936), and such 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 )); see also Jascourt v. United States , 207 Ct. Cl. 955 (1975) ( stating that plaintiff bears burden of establishing waiver of sovereign immunity)).
The Tucker Act grants this court “jurisdiction to render judgment upon 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)

. The Tucker Act does not create a substantive right to relief, nor is standing, by itself, sufficient to confer jurisdiction on this court. See United States v. Testan , 424 U.S. 392, 398 (1976); Martinez v. United States , 333 F.3d 1295, 1302

- 03 (Fed. Cir. 2003) (en banc). Rather, “[a] substantive right must be found in some other source of law

. ” United States v. Mitchell , 463 U.S. 206, 216 (1983). Thus, the Tucker Act essentially acts to waive the government’s sovereign immunity with resp ect to claims deriving from a money

- mandating source of law. Id

. Accordingly, to establish that this court has subject matter jurisdiction under the Tucker Act, the plaintiff must first point to an independent, substantive source of law that may be inter preted as mandating payment from the United States for the injury suffered, and upon successfully doing so, the plaintiff must then present “a non [

- ] frivolous assertion that [he or she] is within the class of plaintiffs entitled to recover” under that mone y

- mandating source. Jan's Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008).

Subject Matter Jurisdiction

Mr. Nelson contends that this court has subject matter jurisdiction over his claim under the Tucker Act because “th [e] claim revolves around money owed to this Plaintiff by the De fendant [,] which is unliquidated.” Compl. at 1 . The government, in turn, a ver s that this court does not have jurisdiction because Mr. Nelson has failed to identify a ny money

- mandating provision under which relief can be granted . Def.’s Mot. to Dismiss at 1

.
Mr. Nelson’s claimed support for jurisdiction in this court is the fact that he was successful in an earlier suit for wrongful detention of property in the Northern District of California. Compl. at 1. He cite s to the principle of res judicata for the proposition that this court must uphold and enforce the final judgment of the Northern District of California , which he claims entitled him to damages against the government in addition to habeas corpus relief from his “false imprisonment

. ” Compl. at 1

- 2.
Plaintiff’s argument is unavailing because his characterization of the judgment in the Northern District of California is so thoroughly flawed as to defy reason . The United States was4 not a party to his suit in that court

. The federal district court’s decision and judgment does not award damages to Mr. Nelson from the gove rnment, but only from another private party

. H abeas
corpus was not at issue, nor was wrongful imprisonment. Mr. Nelson’s claim that the judgment entered in the Northern District of California create s a substantive right to unliquidated damages from the U nited States is simply not true.

CONCLUSION

This court does no t have subject matter jurisdi ction over Mr. Nelson ’s claims. For the reasons stated, the government’s motion to dismiss is GRANTED pursuant to RCFC 12(b)(1)

. The clerk shall enter judgment in accord with this decision.

No costs.

It is so ORDERED

.

_________________________ Charles F. Lettow Judge