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No. 16-1613

Fifed: March 9,2017

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ANDRE EVERTON GRANT

Plaintiff,

v.

UNITED STATES,

Defendant.

* * {. {. * '* ti * '1. + * * * * * * {, ,* 'l'

Andre Everton Grant, pro se.

Peter A. Gwynee, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, DC, for defendant. With him was Chad A.

Readler, Acting Assistant Attorney General, Civil Division, and Glaudia Burke, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice.

OPINION

HORN. J.

FINDINGS OF FACT

On December 5, 2016 pro se plaintiff Andre Everton Grant filed a complaint in this

court titled'COMPLAINT FOR DAMAGES UNDER THE FEDERAL TORT CLAIMS ACT.'

Plaintiffs complaint alleges that the United States, acting through the United States

customs and lmmigrations service (uscls) and the United states lmmigration and

Customs Enforcement (lCE), acted negligently and violated his rights under the Fourth

Amendment to the United States Constitution when the United States government denied

his claim of "derivative citizenship" and attempted to deport him after he was imprisoned

in 2010. Plaintiff claims "$1 0,040,029' in damages, costs, and although appearing pro se,

requests attorney's fees.

Mr. Grant was born in Jamaica to Jamaican parents in 1985. On October 18'2010'

he was sentenced to 48 months imprisonment by the United States District Court for the

District of Maryland and, after ICE subsequently lodged an immigration detainer against

him, he was transferred to the Moshannon Valley Correctional Center (MVCC). Mr. Grant

FILED

MAR - 9 2017

U.S. COURT OF

FEDERAL CLAIMS

?01q 1a00 0000 1013 h80'{
alleges that, immediately after he arrived at MVCC, he informed ICE that he was a United

States citizen. Mr. Grant alleges that, at the request of lCE, he filed an application for a

Certificate of Citizenship with USCIS, which was denied on June 13, 201 1. Mr. Grant,

however, alleges that he did not receive a copy of the denial letter from USCIS, as it was

returned to sender. According to Mr. Grant, after he eventually learned this through a

Freedom of Information Act request, he filed a new application with USCIS, arguing that

its negligence prevented him from receiving a denial letter and deprived him of his right

to appeal the denial of his previous application.

According to his complaint, ICE initiated removal proceedings against Mr. Grant in

May 2012 and on July 17, 2012, he had his first hearing before an immigration judge.

According to Mr. Grant, at this hearing the immigration judge stated that he believed Mr.

Grant may be a citizen and, at a subsequent hearing in October 2012, the immigration

judge instructed Mr. Grant's attorney to submit a brief explaining how Mr. Grant had

acquired his citizenship. On December 14,2012, ICE removed the immigration detainer

that had been placed on Mr. Grant. Mr. Grant then sought a transfer out of MVCC and to

a communig confinement center through the United States Bureau of Prisons

administrative appeals process, but this request was denied on the grounds that there

was still a chance that Mr. Grant could be deported. Mr. Grant alleges that while he was

in custody, on July 4,2013, his son died in Jamaica "with a sickness that would be

considered curable if he was in the United States." On December 6, 2013, ICE lodged a

new detainer on Mr. Grant, which it cancelled on December 12,2013.

According to plaintiff s complaint, on the day after the new detainer was cancelled,

December 13, 2013, Mr. Grant was released from MVCC. In February 2014, however,

ICE again initiated removal proceedings against Mr. Grant, which were postponed

pending his appeal of the denial of his application for a Certificate of Citizenship with

USCIS. ln an order dated March 25,2014, which plaintiff has attached as an exhibit to

his complaint, the USCIS Board of lmmigration Appeals ruled in favor of Mr. Grant,

concluding that he had acquired United States citizenship, effective February 27,200'1,

as a result of the passage of the Child Citizenship Act of 2000, Publ. L. No. 106-395, 114

Stat. 1631 (2000). Mr. Grant received his Certificate of Citizenship on April 16,2014, a

copy of which he also attaches to his complaint. Mr. Grant states that he filed a claim for

comoensation with USCIS on June 5.2014. but has heard no answer since.

Based on these circumstances, Mr. Grant alleges a number of causes of action

against USCIS and lCE. With regards to USCIS, Mr. Grant alleges that it acted negligently

when it denied his citizenship after, allegedly, failing to properly interpret relevant case

law and statutes, when it allegedly failed to pay for the postage on his June 13,2011

denial later. Mr. Grant also alleges that USCIS's actions resulted in the wrongful death of

his son in Jamaica. Finally, Mr. Grant alleges that USCIS's actions violated his "right to

liberty" under the Fourth Amendment to the United States Constitution and his "rights as

a United States Citizen to seek gainful employment and or [sic] go to school." With regards

to lCE, Mr. Grant alleges that it acted negligently in failing to "fully investigate all claims

of Citizenship" and that its "placing and cancelling of numerous immigration detainers" on

him constituted negligent infliction of emotional distress. Mr. Grant seeks $10,040,029.00

in damages, $10,000,000.00 for the emotional distress resulting from the alleged denial
of his rights and the death of his son and $40,029.00 for the costs of defending against

his deportation. Mr. Grant also requests that the court "take a look at the constitutionality

of the Board of lmmigration Appeals [BlA] policy as it pertains to precedence and Nonprecedent [sic] decisions, and issue an injunction for the BIA to make [his] case A [sic]

precedential decision." Finally, Mr. Grant seeks costs and, although filing pro se, also

seeks attorney's fees.

On February 2, 2017, defendant filed a motion to dismiss plaintiffs complaint for

lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United

States Court of Federal Claims (RCFC). In its motion, defendant argues that the court

lacks jurisdiction to hear plaintiffs' complaint because his allegations sound "exclusively"

in tort and that this court lacks jurisdiction to hear tort claims. Mr. Grant failed to file a

timely opposition to defendant's motion to dismiss. This failure, however, does not impact

the court's analysis because the result in the case is clear based on the established

jurisdictional principles applicable to this court, which dictate that the court is without

jurisdiction to hear the allegations raised by plaintiff.

DtscussroN

The court recognizes that plaintiff is proceeding pro se, without the assistance of

counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to

invoke review by a court, oro se plaintiffs are entitled to liberal construction of their

pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations

contained in a pro se complaint be held to "less stringent standards than formal pleadings

drafted by lawyers"), reh'q denied, 405 U.S. 9a8 (972); see also Erickson v. Pardus, 551

U.S. 89, 9a Q007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429

U.S. 97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Matthews v. United States, 750

F.3d 1320, 1322(Fed.Cu.2014); Diamond v. United States, 115 Fed. C|.516, 524,affd,

603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1 909 (201 5). "However, "'[t]here is

no duty on the part of the trial court to create a claim which [the plaintiffl has not spelled

out in his [or her] pleading.""' Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)

(alterations in original) (quoting Scoqin v. United States, 33 Fed. Cl.285,293 (1995)

(quoting Clark v. Nat'l Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see

also Bussie v. United States, 96 Fed. Cl. 89, 94, aft'd,443 F. App'x 542 (Fed. Cn.2011);

Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a pro se plaintiff is held to

a 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

preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010)

(citing Huqhes v. Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359

(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the

evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v.

United States, 119 Fed. Cl. 133, 139 (2014) ("[Wlhile 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, 252 (2013) ("Although plaintiffs pleadings are held to a less

stringent standard, such leniency 'with respect to mere formalities does not relieve the

burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
Cl. at 253)). Even given the rules which apply to pro se plaintiffs, plaintiffs complaint

currently before the court, although attempting to cite to a range of statutes and case law,

does not allege cause of action justiciable in this court.

Defendant, in a very summary, cut-and-paste motion has moved to dismiss

plaintiff's complaint pursuant to RCFC 12(bX1) for lack of subject matter jurisdiction.

Nonetheless, the defendant is correct about the failure of plaintiff to raise issues within

this court's jurisdiction. The Tucker Act, 28 U.S.C. S 1491 , grants jurisdiction to this court

as follows:

The United States Court of Federal Claims shall have 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) (2012). As interpreted bythe United States Supreme Court, the

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the 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

government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,

289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee

Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh's and reh'q en banc 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, a federal statute, or a regulation is

cognizable under the Tucker Act. The claim must be one for money damages against the

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., lnc. v.

United States, 521 F.3d'1338, 1343 (Fed. Cir.2008) ("[P]laintifi 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. C'.764,768 (2014).In Ontario

Power Generation. Inc. v. United States, the United States Court of Appeals for the

Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in

the United States Court of Federal Claims. The court wrote:

The underlying monetary claims are of three types. . . . 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, directly or in effect, and seeks return of all or part of that sum."

Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1 002,] 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. C|.505, 117 F. Supp.576,580 (1954))... .

Third, the Court of Federal Claims has jurisdiction over those 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, either directly or in effect, require that the "particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.

1392,1 401-02 [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 of action 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.

Ontario PowerGeneration. Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);

see also Twp. of Saddle Brook v. 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.

Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S.392, 400

(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; 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 Tucker Act itself. See United States v. Navaio

Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply

al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims

premised on other sources of law (e.9., statutes or contracts)."). "'lf 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 Cntv., Ariz. v.

United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.

2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under

the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant's favor. 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 of the factual allegations contained in the complaint." (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters. lnc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteqration. Inc. v. United States.659 F.3d

1 1 59, 1 163 (Fed. Cir. 201 1 ).

"Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiffls claim, independent of any

defense that may be interposed." Hollev v. United States ,124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'q

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McOaullev Inv. Grp., lnc. v. United States, 93 Fed. C|.710,

713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the

grounds for the court's jurisdiction," and "a short and plain statement of the claim showing

that the pleader is entitled to relief." RCFC 8(aX1), (2) (2016): Fed. R. Civ. P. 8(a)(1), (2)

(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v.

Twomblv, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,

"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to

support a claim." Bradlev v. Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir. 1998); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cn.2007\ (Dyk, J.,

concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice

and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981)

("[C]onclusory allegations unsupported by any factual assertions will not withstand a

motion to dismiss."), affd, 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 Consultino v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting

Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), atfd, 562 F. App'x 964 (Fed. Cir.), reh'q

denied (Fed. Cr. 2014). As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and

conclusions' or 'a formulaic recitation of the elements of a cause of action 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. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twomblv, 550 U.S. at 555)

Most of the causes of action alleged in Mr. Grant's complaint, if legally cognizable

at all, given the facts alleged, sound in tort, including negligence, negligent infliction of

emotional distress, and the wrongful death of his son in Jamaica. Indeed, Mr. Hood titled

his complaint'COMPLAINT FOR DAMAGES UNDER THE FEDEML TORT CLAIMS

ACT.' lt is clear that this court does not have jurisdiction to hear tort claims against the

United States. See 28 U.S.C. S 1a91(a)(1) ("The United States Court of Federal Claims

shall have jurisdiction . . . in cases not sounding in tort."); see also Keene Corp. v. United

States, 508 U.S. 200, 214 (1993) ("[T]ort cases are outside the jurisdiction of the Court of

Federal Claims today."); Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997) ("The

Court of Federal Claims is a court of limited jurisdiction. lt lacks jurisdiction over tort

actions against the United States."); Kant v. United States,123 Fed. Cl. 614, 616 (2015).

Indeed, the jurisdictional provision identified in plaintiffs complaint, the Federal Tort

Claims Act, 28 U.S.C. S 1346, makes tort claims against the United States the exclusive

purview of the United States District Courts. See 28 U.S.C. S 1346(bX1); see also Brown

v. United States,74 Fed. Cl. 546, 549 (2006) ("[T]he FTCA [Federal Tort Claims Act, 28

U.S.C. S 1 346(b)(1)l grants exclusive jurisdiction to the United States federal district

courts regarding tort claims against the United States Government.").
Plaintiff also alleges that the actions of USCIS violated his rights under the Fourth

Amendment to the United States Constitution. This court also has no jurisdiction over any

claim based on the Fourth Amendment. See LaChance v. United States, 15 Cl. CL 127,

130 (1988) ("[T]he fourth amendment does not mandate the payment of money by the

United States." (citing Shaw v. United States, 8 Cl. Ct. 796, 800 (1985))); Roberson v.

United States, 115 Fed. Cl.234,240 ("The Fourth Amendment is not money-mandating."

(citing Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997))), appeal dismissed,

556 F. App'x 966 (Fed. Cu.2014); Haka v. United States, 107 Fed. Cl. 111,113-14

(2012); Kam-Almaz v. United States, 96 Fed. Cl. 84, 89 (2011) ("[T]his Court does not

have jurisdiction to hear claims contesting the laMulness of a search and seizure because

due process and Fourth Amendment claims are reserved to the District Court." (citing

LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995))), aff'd, 682 F.3d 1364

(Fed. Cir. 2012).

Finally, plaintiff alleges that USCIS "violated [his] rights as a United States citizen

to seek gainful employment and or go to school." For this claim, plaintiff cites to insufficient

facts to support his allegation and to no regulation, statute, or constitutional provision that

can be interpreted as mandating he can claim the payment of money for an alleged

violation by the government of these alleged "rights." The court, thus, lacks jurisdiction to

hear defendant's claims based on these allegations.

The court notes that, along with his complaint, plaintiff has filed an Application to

Proceed ln Forma Pauperis. In order to provide access to this court to those who cannot

pay the filing fees mandated by RCFC 77 .1(c), 28 U.S.C. S 1915 (2012) permits a court

to allow a plaintiff to file a complaint without payment of fees or security, under specific

circumstances. Section 1915(a)(1) states that:

Subject to subsection (b), any court of the United States may authorize the

commencement, prosecution or defense of any suit, action or proceeding,

civil or criminal, or appeal therein, without prepayment of fees or security

therefor, by a person who submits an affidavit that includes a statement of

all assets such prisoner[l] possesses [and] that the person is unable to pay

1A number of courts have reviewed the words of 28 U.S.C. S 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,94=, Floyd v. United States Postal Serv.,

105 F.3d 274,275-76 (6th Cir.), reh'q denied (6th Cir. 1997); Schaqene v. United States,

37Fed. C|.661,663(1997),appeal dismissed,152F.3d 947(Fed.Cir. 1998); seealso

ln re Prison Litiqation 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

of non-prisoners to applyfor in forma pauperis status); Leonard v. Lacv,88 F.3d 181,183

(2d Cir. 1996) (using "sic" following the word "prisoner" in 28 U.S.C. g 1915(a)(1)

seemingly to indicate that the use of that word was too narrow); Smith v. United States,

113 Fed. Cl.241 ,243(2013): 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. S 191s(aX1)] is that it is not

limited to prisoner suits."). Moreover, 28 U.S.C. $ 1915(a)(1) refers to both "person" and
such fees or give security therefor. Such affidavit shall state the nature of

the action, defense or appeal and affiant's belief that the person is entitled

to reclress.

28 U.S.C. $ 1915(a)(1). Therefore, the statute at 28 U.S.C. $ 1915(a)(1) requires a person

to submit an affidavit with a statement of all the applicant's assets, and that the affidavit

state the nature of the action, defense or appeal and affiant's belief that the person is

entitled to redress. See id.

The standard in 28 U.S.C. S 1915(a)(1) for in forma pauperis eligibility is "unable

to pay such fees or give security therefor." Determination of what 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 of the presiding judge, based on the

information submitted by the plaintiff or plaintiffs. See, e.q., Rowland v. Cal. Men's

Colony. Unit ll Men'sAdvisoryCouncil,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 (201 1). 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 of claims allowed. In fact, prominently posted

at the entrance to this courthouse are the words of Abraham Lincoln: "lt is as much the

duty of government to render prompt justice against itself, in favor of citizens, as it is to

administer the same, between private individuals."

Interpreting an earlier version of the in forma pauperis statute, the United States

Supreme Court offered the following guidance:

We cannot agree with the court below that one must be absolutely destitute

to enjoy the benefit of the 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 orovide" himself and deoendents "with the

necessities of life." To say that no persons are entitled to the statute's

benefits until they have sworn to contribute to payment of costs, the last

dollar they 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 of public charges. The public

would not be profited if relieved of paying costs of a particular litigation only

to have imposed on it the expense of supporting the person thereby made

an object of public support. Nor does the result seem more desirable if the

effect of this statutory interpretation is to force a litigant to abandon what

"prisoner." The word "person" is used three times in the subsection, while the word

"prisoner" is used only once. This court, therefore, finds that the single use of the word

"prisoner" in the language of 28 U.S.C S 1915(aX1) was not intended to eliminate a nonprisoner from proceeding in federal court in forma pauperis, provided that the civil litigant

can demonstrate appropriate need. Any other interpretation is inconsistent with the

statutory scheme of 28 U.S.C. S 1915.
may be a meritorious claim in order to spare himself complete destitution

We think a construction of the statute achieving such consequences is an

inadmissible one.

Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 33940 (1948) (omissions in

original).

In Fiebelkorn v. United States, for example, a Judge of the 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' means that paying such fees

would constitute a serious hardship on the plaintiff, not that such payment

would render olaintiff destitute.

Fiebelkorn v. United States ,77 Fed. Cl. 59, 62 (2007); see also Fuentes v. United States,

100 Fed. Cl. at92; Havesv. United States,71 Fed. C|.366,369 (2006).

In his Application to Proceed ln Forma Pauperis, plaintiff states that he is presently

employed with a gross income of $42,000.00 a year and a net income of $31,000.00 a

year and that he financially supports a son and his mother. The court notes that plaintiffs

salary, although modest, is significantly above the established federal poverty line for a

family of either three or four, as defined by the United States Department of Health and

Human Services' Poverty Guidelines. See Annual Update of the HHS Poverty Guidelines,

82 Fed. Reg. 8831-03, 8832 (Jan. 31 , 2017) (listing the poverty line as $20,420.00 for a

family of three and $24,600.00 for a family of four). Review of prior decisions in this court

demonstrates that those granted in forma pauperis status generally have an income much

closerto the poverty line than plaintiffs. See, e.q., Fuentes v. United States, 100 Fed. Cl.

at 92 (finding that plaintiff's income of less than $24,000.00 was "not significantly above

poverty level" listed by federal guidelines as $14,7'10 for a family of two); Fiebelkorn v.

United States, 77 Fed. Cl. at 62 (finding that plaintiff's income was "only $823 above the

2007 Department of Health and Human Services Poverty Guidelines for three-person

families"). The court, thus, is skeptical that plaintiff is eligible to receive in forma pauperis

status. The court need not, however, make this determination because, as discusseo

above, the court has determined that it lacks jurisdiction to adjudicate the claims alleged

in plaintiffs complaint. Plaintiffls motion for leave to proceed in forma pauperis, therefore,

is denied as moot.

CONCLUSION

Because the court lacks jurisdiction to adjudicate any of the alleged causes of

action included in plaintiff's complaint. defendant's motion to dismiss is GRANTED.

o
Plaintiffs complaint is DISilISSED. Plaintiffs Application to Proceed ln Forma Pauoeris is

denied as If,OOT. The clerk shall enter JUDGIf,ENT consistent wlth this opinion.

IT IS SO ORDERED.

RIAN BLANK HO

Judge

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