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No. 14-287C

(Filed: July24,2014)

(NOT TO BE PUBLISHED)

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UNITED STATES,

SUSAN HERBERT.

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Plaintiff, )

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Defendant. )

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JUI.2 4 2014

U.S. COURT OF

FEDERAL CLAIMS

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Susan Herbert, pro se, Jacksonville, FL.

David A. Levitt, Trial Attomey, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With him on the briefs were

Stuart F. Delery, Assistant Attomey General, Civil Division, Robert E. Kirschman, Jr., Director,

Marian E. Sullivan, Assistant Director, and Steven J. Gillingham, Assistant Director,

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,

D.C.

OPINION AND ORDER

LETTOW, Judge.

On April | | ,2014, plaintiff, Susan Herbert, filed a complaint alleging abridgment of her

rights in connection with an action proceeding in another court. Ms. Herbert amended her

complaint on May 19, 2014. See Am. Compl., ECF No. 5.' The govemment has responded to

rThe amended complaint was timely filed under Rule 15(aX1XB) of the Rules of the

Court of Federal Claims ("RCFC"). While Ms. Herbert does not consider that her second

complaint is an "amended complaint," see Pl.'s Resp. in Opp'n. to Def.'s Mot. to Dismiss ("P1.'s

Opp'n") at 43, ECF No. 7, the rules of this court allow only "a complaint" to be filed in a single

case. RCFC 7(a)(l). Accordingly, the court will treat Ms. Herbert's second complaint as an

amended complaint, which is consistent with the manner in which she filed it.

Ms. Herbeft names 58 other plaintiffs. See Am. Compl. Attach. l, at 2. Ms. Herbert is

appearing before this court in a pro se capacity, and thus she can only represent herselfor

FILED
the amended complaint with a motion to dismiss for lack of subject matter jurisdiction pursuant

to RCFC l2(bX1). Def.'s Mot. to Dismiss ("Mot. to Dismiss"), ECF No. 6. Ms. Herbert filed an

opposition to this motion on Jdy 7,2014, see Pl.'s Opp'n, ECF No. 7, and the govemment

replied on July 18, 2014, see Def.'s Reply to Pl.'s Resp. in Opp'n ("Def.'s Reply"), ECF No. 9.

Accordingly, the matter has been fully briefed and is ready for disposition.'

BACKGROUND

Ms. Herbert has previously filed in various courts a number of complaints nearly

identical to this one, all ofwhich have been dismissed. See, e.g., Order of Dismissal, Clemons v.

{Jnited States,No. 13-162 (Fed. Cl. Mar. 15, 2013); Order, Herbert v. Obema,No.11-1869,

201I U.S. Dist. LEXIS 122644 (D. Minn. Aug. 24,2011) (dismissing complaint ior failure to

state a claim for which reliefcan be granted); Order, Herbert v. United States, No' 3:07-cv-964-

J-33T8M,2007 U.S. Dist. LEXIS 88787 (M.D. Fla. Nov. 1,2007) (dismissing claim for

frivolousness and for failure to state a claim upon which relief can be granted); Order, I-lerbert v.

United States,No.3:07-cv-00'776-J-l6MCR, 2007 U.S. Dist. LEXIS 72022 (MD. Fla. Sept. 27,

2007) (dismissing claim as tiivolous).

In this iteration of her complaint, Ms. Herbert alleges claims that appear to stem from

what she describes as the Supreme Court's failure to force the Solicitor General to respond to her

challenge to a Supreme Court case. See Am. Compl. !l!f 1, 5. She interprets the Solicitor

General's failure to respond as a procedural "default" by the govemment to her challenge, thus

requiring a decision in her favor. 1d. fl 2.

Ms. Herbe('s three central claims are (l) that her rights, and the rights of all women,

including the "Birthright," have been violated, by denying her substantive due process in the

courts, (2) that a regulatory taking occurred by forcing "the [s]tate courts to act as lflederal

courts of law" in denying her "entry to [the Supreme Court] or any other federal court in person,"

and (3) that "[b]y confiscating and refusing to file the Motion to Compel [t]he U[nited ] S[tates]

[t]o Respond" and tampering with the Supreme Court's docket, the govemment has exacted a

physical taking against her. Am. Compl. at 18. Ms. Herbert further alleges that the Court's

failure to enforce her challenge is due to the Court's and society's prejudice against women, id.

aI4, and that the Court's failure to act can also be attributed to the illegal and covert actions of

the Court's clerks, id. at 5.

members of her immediate family before the court. ,See RCFC 83.1(aX3)' Consequently, all

other named plaintiffs are removed from this action.

2Ms. Herbert asserts that she never received a copy of the govemment's motion to

dismiss. PI.'s Opp'n at 4. The govemment explained that it mailed a copy of the motion to

dismiss to the address listed on Ms. Herbert's filings, but it was retumed to the govemment due

to an "insufficient address." Def.'s Reply at 2-3, Attach. 1. Under RCFC 5(a)(1)(D), a written

motion, such as the government's motion to dismiss, must be served on the opposing party.

Mailing the motion to the party's last known address fulfills the requirement for service. RCFC

s(bx2)(c).
In terms of relief, Ms. Herbert asks for damages to compensate her for the taking of

property, a "hearing in person," an injunction "prohibiting [d]efendant[] from collecting tribute

disguised asjust taxation . . . [and] from claiming that [it] possess[es] jurisdiction over [her], and

an injunction prohibiting Barack Obama from acting as if he is the rightful, lanful President," as

well as a "declaration that women and their children are part of mankind [and] so are fp]ersons

with equal rights." Am. Compl. at 19. Ms. Herbert appears to be seeking $2 billion in damages.

See Am. Compl. at 13.

STANDARDS FOR DECISION

Ms. Herbert premises this court's jurisdiction over her claims on the Tucker Act, 28

U.S.C. S I 491 . Am. Compl. at I . The Tucker Act grants this cou( 'Jurisdiction to render

judgment upon any claim against the United States founded either upon the Constitution, or any

Act ofCongress 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. $ l49l(a)(l). The Tucker Act is a waiver of sovereign immunity and enables

a plaintilTto sue the United States fbr monetary damages in certain circumstances. United States

v. Mitchell,463 U.S. 206,212 (1983). The Act itseli however, does not create a substantive

right to monetary relief from this court. United States v. Testan, 424 U .5. 392, 398 (1976); see

also Martinez v. United States,333 F.3d 1295,1302-03 (Fed. Cir. 2003) (en banc). "A

substantive right must be found in some other source of law." Mitchell,463 U.S. at216. To

meet the jurisdictional requirements ofthe Tucker Act, the plaintiff must point to an

independent, substantive source of law that mandates payment from the United States for the

injury suffered. Testan,424 U.S. at 400.

The "court must satisfy itselfthat 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)

(intemal quotation marks omitted) (quoting PIN/NIP, Inc. v. Platte Chem. Co.,304 F.3d 1235,

1241 (Fed. Cir.2002)). When considering a motion to dismiss for lack of subject matter

jurisdiction, the court will "normally consider the facts alleged in the complaint as true and

correct." Reynolds v. Army & Air Force Exch. \erv.,846F.2d746,747 (Fed. Cir. 1988) (citing

Scheuer v. Rhodes,4l6 U.S. 232,236 (197a)). The party seeking to establish the court's

jurisdiction bears the burden of proving it by a preponderance of the evidence. McNutt v.

General Motors Acceptdnce Corp. of [nd.,298 U.S. 178, 189 (1936); Reynolds,846F.2dat748.

In construing pleadings fied by pro se plaintiffs, the court generally holds them to "'less

stringent standards than formal pleadings drafted by lawyers."' Estelle v. Gamble,429U.S.97,

106 ( 1 976) (quoring Haines v. Kerner,404 U. S. 519, 520 ( 1972) (per curiam) (intemal quotation

marks omitted)). "This latitude, however, does not relieve a pro se plaintiff from meeting

jurisdictional requirements." Bernard v. united States,59 Fed. Cl. 497 , 499 (2004), aff'd,98

Fed. Appx. 860 (Fed. Cir. 2004); see also Henke v. United States,60 F.3d 795, 799 (Fed. Cir.

I 995). Thus, even as a pro se plaintiff, Ms. Herbert "bears the burden of establishing the

[c]ourt's jurisdiction by a preponderance ofthe evidence." Riles v. United States,93 Fed. Cl.

163, 165 (2010) (citing Taylor v. United States,303 F.3d 1357,1359 (Fed. Cir. 2002)).
ANALYSIS

This court does not have jurisdiction over claims ofviolations ofdue process, as the Due

Process Clause is not money-mand,ating. See,lames v. Caldera,l59 F.3d 573, 581 (Fed. Cir.

1998) ("[T]he Court of Federal Claims lacks jurisdiction over [Due Process Clause claims]

because [the Due Process Clause] . . . is [not] a money-mandating provision"). Consequently,

this court cannot have jurisdiction over Ms. l{erbert's claim that her right to "substantive due

process in the courts in the US" was violated when the Supreme Court did not force the Solicitor

General to reply to Ms. Herbert's challenge of a decision by the Supreme Court. See Am.

Compl. at 18.

Ms. Herbert's takings claims also fail to state claims upon which relief can be granted,

even under the lenient interpretation afforded to pro se plaintiffs. See RCFC 12(b)(6);

Stroughter v. United States,89 Fed. Cl. 755,760 (2009) ("Although pro se plaintiffs are given

some leniency in presenting their case, their pro se status does not immunize them from pleading

facts upon which a valid claim can rest."). The Supreme Court refined the standard for sufficient

claims in Bell Atlantic Corp. v. Twombt, 550 U.S. 544,569 (2007) (requiring a claimant to

allege "enough facts to state a claim to reliefthat is plausible on its face"), and Ashcroft v. Iqbal,

556 U.S. 662,6'78 (2009) ("[T]he tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements

ofa cause ofaction, supported by mere conclusory statements, do not suffice.").

Ms. Herbert makes both a regulatory and a physical takings claim, but the facts that she

alleges would not constitute a takings under either framework and therefore cannot support her

legal conclusions that a taking has occurred. Ms. Herbert alleges that the govemment took her

property by regulatory means when it denied her entry to the Supreme Court on her challenge to

the Supreme Court decision, when it denied her a hearing, and when the Supreme Court failed to

force the Solicitor General to file a response. See Am. Compl. at I 8. The right of entry to the

Supreme Court and the right to a hearing are not private property, and therefore Ms. Herbert has

failed to allege that private property has been taken for public use. As for her physical takings

claim, Ms. Herbert alleges that the govemment, namely the clerks of the Supreme Court,

committed a physical taking when they allegedly refused to file and then hid Ms. Herbert's

Motion to Compel the United States to Respond. Am. Compl. atflll 14, 15. Acou(filingisnot

private property, and thus Ms. Herbe( has failed to state a plausible takings claim. The court

cannot discem a claim upon which reliefcan be granted.

CONCLUSION

The court does not have subject matter jurisdiction over Ms. Herbert's due process

claims, and her allegations oftakings fail to state claims upon which relief can be granted. As

such, the government's Motion to Dismiss is GRANTED pursuant to RCFC l2(b)(1) and (6).

The clerk is directed to enterjudgment in accord with this disposition.

No costs.
It is so ORDERED.

Charle's F. Lettow