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# eberal <!Claitns
No. 16-918C (Filed December 19, 2016) NOT FOR PUBLICATION

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### BILLY DRIVER, Plaintiff,

v. 

### THE UNITED STATES,
Defendant

. 

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### ORDER 

# FILED DEC 1 92016 U.S

. COURT OF FEDERAL CLAIMS



### Billy Driver, a

### pro seplaintiff, filed a complaintin this case onAugust 1, 2016. Although Mr. Driver named the Attorneys General ofthe U.S. and of California as the defendants in the caption ofhis pleading, our court has captioned the case as against the United States, as that is the only proper defendant in cases filed in our court. 

### See Rules ofthe United States Court ofFederal Claims (RCFC) lO(a); 

### Vlahahis v. United States, 215 Ct. Cl. 1018, 1018 (1978); 

### Clarli v. United States, No. 11-lOC, 2014 WL 3728172, at *9 (Fed. Cl. July 28, 2014). Plaintiffseeks preliminary and permanentinjunctions as well as money damages for alleged civil rights and human rights violations, and purports to bring the matter on behalfofa class ofprisoners. Compl. at 2. In particular, Mr. Driver asserts claims against the Department ofJustice, the Office ofthe United StatesAttorney General, Loretta Lynch asAttorney General, and the Attorney General for the State ofCalifornia, Kamala Harris, for violations ofthe United States Constitutionby "denying class members the right to access the court for redress and monetary damages under the 7thAmendmentright tojury trial and under the 14thAmendment Due Process and Equal Protection" clauses. Compl. at 4. Mister Driver also cites the Civil Rights Act, 42 U.S.C. § 

### 1983 et seq., and the Americans with DisabilitiesAct (ADA), 42 U.S.C. § 

### 12101 et seq. Compl. at 1. The complaint contains no specific factual allegations.



### 7014 1200 DODD 9093 5418Defendant moved to dismiss this case for lack ofjurisdiction on September 30, 2016, pursuant to RCFC 12(b)(l). In support ofits motion, the government argues that this court does not havejurisdiction over plaintiff's claims arising under the Due Process Clause or the Equal Protection Clause, because these clauses are not money-mandating. Mot. at 3. Similarly, the government argues that this court does not havejurisdiction over claims "sounding in tort or for civil wrongs committedby agents ofthe United States," "for declaratory or injunctive relief outside the bid protest context," "for civil rights violations," or "when the defendant is other than the United States." Mot. at 3 (citing 

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

### Shearin v. United States, 992 F.3d 1195 (Fed. Cir. 1993); 

### James v. Caldera, 159 F.3d 573 (Fed. Cir. 1998); 

### Mitchell v. United States, 230 Ct. Cl. 827 (1982); 

### United States v. Sherwood, 312 U.S. 584, 588 (1941); 

### Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003)).
Pursuant to the Rules ofthe United States Court ofFederal Claims (RCFC), plaintiffis required to respond to a motion seeking dismissal under RCFC 12(b) within 28 days ofservice. RCFC 7.2(b)(l). Plaintiff's response to the government's motion to dismiss was due on or by October 31, 2016. Plaintiffhas not filed a response. The failure to timely respond to a motion to dismiss a case, by itself, warrants dismissal ofthe case for failure to prosecute and to comply with these rules. 

### See RCFC 41(b). Additionally, plaintiffhas not paid the filing fee in this case, nor has he filed an application to proceed 

### informapauperis, which also warrants dismissal ofthe case for failure to comply with the Court's rules. 

### See RCFC 77.l(c); RCFC 41(b); 

### see also Sellers v. United States, 110 Fed. Cl. 62, 69 (2013) (dismissing case and refusing to transfer to another federal court where this court lackedjurisdiction and plaintiffs failed to pay the court's filing fee or file an application to proceed 

### informa pauperis). Taking into consideration plaintiff's

### pro se status, however, the Court has examined the complaint. Nothing in this pleading alleges a cause ofaction over which this court hasjurisdiction.
This court'sjurisdiction must be based on the alleged existence ofa contract with the federal government or on a violation by the federal government ofa law or constitutionalprovision mandating the payment ofmoney. 28 U.S.C. § 1491(a)(l); 

### see also Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997) (holding that a plaintiffmust plead the elements ofa valid contract in order to establishjurisdictionbased on a contract with the United States); 

### United States v. Testan, 424 U.S. 392, 398 (1976) (noting that the Tucker Act confersjurisdiction only where the federal statute allegedly violated confers "a substantive right to recover money damages from the United States"); 

### Contreras v. United States, 64 Fed. Cl. 583, 588 (2005) (holding that this court'sjurisdiction "mustbe based on a law or regulation that either entitles the plaintiffto a payment ofmoney from the
- 2 -government, orplaces a duty upon the government, the breach ofwhich gives the plaintiffa money damages remedy"); 

### Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967) (explaining that our court does not havejurisdiction to hear "every claim involving or invoking the Constitution"). Mister Driver identifies no such source. First, Mr. Driver has not alleged the existence ofa contract with the federal government, and the court therefore has nojurisdiction on that basis. Second, the government is correct that this court lacksjurisdiction over claims sounding in tort. 28 U.S.C. § 149l(a)(l) (limitingjurisdiction to "cases not sounding in tort"); 

### see also Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997); 

### Sellers v. United States, 110 Fed. Cl. 62, 66 (2013).
In order for this court to havejurisdiction over Mr. Driver's constitutional claims, the claims must arise from a provision that is money-mandating. 28 U.S.C. 

### § 1491(a)(l). As a preliminary matter, the Fourteenth Amendment does not apply to federal officials. 

### Fry v. United States, 72 Fed. Cl. 500, 508 (2006) (citing 

### S.F. Arts & 

### Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987)). Assuming that Mr. Driver meant to assert claims under the FifthAmendment, the relevant provisions are not money-mandating. 

### See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the equal protection and due process components ofthe Fifth Amendment are not money-mandating) (citing 

### Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980)). To the extent that Mr. Driver is attemptingto assert a FifthAmendment due process claim, that provision is also not moneymandating.1 

### Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (holding that the Due Process Clauses ofboth the Fifth and the Fourteenth Amendments are not money-mandating); 

### Brown v. United States, 227 Ct. Cl. 786, 787 (1981) (finding nojurisdictionover a claim alleging deprivation ofliberty in violation ofthe Fifth Amendment). Similarly, this court has nojurisdictionover Mr. Driver's claims under the Seventh Amendment, because that provision is not money-mandating. 

### Vuolo v. United States, No. 2006-5136, 2006 WL 3913417 (Fed. Cir. Dec. 29, 2006) (affirming holding below that this court lacksjurisdiction over alleged violations of"the First, Second, Fourth, Sixth, Seventh, Eighth, and NinthAmendments because these amendments do not mandate the payment ofmoney") (citing 

### LeBlanc v. United States, 50 F.3d at 1028).

1 The Due Process Clause ofthe Fifth Amendment may only be a basis for our jurisdiction when a claim seeks the return ofmoney paid to the federal government under the rubric of an illegal exaction. 

### SeeAerolineasArgentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); 

### Coleman v. United States, No. 13-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014).

- 3 -Likewise, there is nothing in the Tucker Act granting this courtjurisdiction over claims alleging civil rights violations or human rights violations. 

### See 28 U.S.C. 

### § 1491. To the extent that Mr. Driver is attempting to assert civil rights claims pursuant to 42 U.S.C. § 1983, this court lacksjurisdiction, because the district courts have exclusivejurisdiction over claims arising under the Civil Rights Act. 

### Ramirez v. United States, 239 F. App'x 581, 583 (Fed. Cir. 2007) (finding that this court has nojurisdiction over civil rights claims brought under 42 U.S.C. § 1983); 

### Marlin v. 

### United States, 63 Fed. Cl. 475, 476 (2005) ("[T]he Court does not have jurisdictionto consider civil rights claims brought pursuant to 42 U.S.C. 

### §§ 1981, 1983, or 1985 becausejurisdiction over claims arising under the Civil Rights Act resides exclusively in the district courts.") (citing 

### Wildman v. 

### United States, 28 Fed. Cl. 494, 495 (1993); 

### Osborn v. 

### United States, 47 Fed. Cl. 224, 232 (2000)).
This court also lacksjurisdiction over any claims Mr. Driver may have under the ADA, because "the ADA is not a money-mandating source oflaw." 

### Allen v. United States, 546 Fed. Appx. 949, 951 (Fed. Cir. 2013) (citing 

### Searles v. United States, 88 Fed. Cl. 801, 805 (2009)).
Mister Driver is also seekingpreliminary and permanent injunctions. The court cannot exercisejurisdiction over his claims for injunctive reliefbecause

- other than in limited circumstances, none ofwhich apply here2

- this court only has jurisdictionover claims for money damages. 

### Testan, 424 U.S. at 398. Finally, to the extent that Mr. Driver's complaint is against a defendant other than the United States, including his claims against Ms. Harris, this court lacks jurisdiction. 

### See 28 U.S.C. § 149l(a)(l) (grantingjurisdictionover claims "against the United States").

2 This court also hasjurisdiction: (1) to provide reliefin addition to money damages "as an incident of and collateral to any such [money] judgment" over which it has jurisdiction, 28 U.S.C. § 1491(a)(2); (2) over contract disputes arising under 41 U.S.C. § 7104(b)(l), 28 U.S.C. § 1491(a)(2); and (3) over bid protests brought "by an interested party objecting to a solicitationby a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation ofstatute or regulation in connection with a procurement or a proposed procurement," 28 U.S.C. § 149l(b). Because Mr. Driver has not identified a basis for this court to exercisejurisdiction over a claim for money damages, this court has nojurisdiction to provide additional relief"incident ofand collateral to" such moneyjudgement. His complaint is not a contract dispute brought under 41 U.S.C. 

### § 7104(b)(l), nor is it a complaintbrought "by an interested party objecting to a solicitation by a Federal agency."


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### Thus, defendant's motion to dismiss this case for lack ofsubject-matter jurisdiction is 

### GRANTED. The Clerk shall close the case.



### IT IS SO ORDERED.

Judge



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