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No. l5-419 C

Filed: July 22,2015

NOT TO BE PUBLISHED

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CHARLES HUNTER a/k/a KHALEEL *

FILED

JUL 2 2 2015

U.S. COURT OF

FEDERALCLAIMg

THEODORE WATKINS a/k/a

ABDULLAH,

Plaintiff, pro se,

THE UNITED STATES,

Defendant.

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Theodore Watkins, pro se,

Robert M. Norway, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Govemment.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, "/adge.

I, RELEVANTFACTUALBACKGROUND,'

On April 29, 1976, a jury in the Detroit Recorder's Court2 l"Michigan State Court")

convicted Theodore Watkins for Assault with Intent to Murder. Compl. at 2. On May 20, 1976,

the Michigan State Court sentenced Mr. Watkins to a term of five years' probation. Compl. at 2.

I The relevant facts were derived from the April 27,2015 Complaint ("Compl.") and

attached exhibits ("P1. Ex. l-3").

2 On October 1, 1997, the Detroit Recorder's Court merged into the Third Judicial Circuit

of Michigan. See Mich. Comp. Laws $ 600.9931(l) ("The recorder's court of the city of Detroit
On September 29,1980, Mr. Watkins pled guilty to Attempted Malicious Destruction of

Personal Property and the Michigan State Court sentenced him to a term of two years' probation.

Compl. at 2. Mr. Watkins also continued the term of probation from his previous sentenca to

five years' probation. Compl. at 2-3.

On December 20, 1981, Mr. Watkins was arrested and arraigned on charges that he

violated probation and failed to report. Compl. at 3. On December 22, 1981, the Michigan State

Court held a hearing and a guilty plea was entered. Pl. Ex. 3. The Complaint alleges that Mr.

Watkins did not consent to plead guilty, but instead stood silently. Compl.at3.

On January 6, 1982, the Michigan State Court sentenced Mr. Watkins to a prison term of

seven to fifteen years for violation of his first term of probation and a prison term of one to two

years for violation of his second term of probation. Compl. at 3. This sentence was later

"vacated on jurisdictional grounds," but Mr. Watkins' guilty plea was not set aside. Compl. at 3.

The April 27 ,2015 Complaint does not specify if or for how long Mr. Watkins was incarcerated.

il. PROCEDURALHISTORY.

On April 27,2015, Mr. Watkins ("Plaintiff') filed a Complaint in the United States Court

of Federal Claims seeking injunctive relief and $10,000,000 in "statutory and punitive" damages

("Complaint"). Compl. at 4. The Complaint alleges that Mr. Watkins, as a member of the

Newaubian Nation of Moors of the Creek Nation, was deprived of procedural protections

guaranteed to sovereign nations, pursuant to 28 U.S.C. $ 1604 and 22 C.F.R. S 92.12.3 Compl. at

3-4. The Complaint also alleges that the Government did not follow appropriate procedures to

is abolished and merged with the third judicial circuit of the circuit court effective October 1,

19e7.").

3 28 U.S.C. g 1604 provides:

Subject to existing intemational agreements to which the United States is a party

at the time of enactment of this Act a foreign state shall be immune from the

jurisdiction ofthe courts ofthe United States and ofthe States except as provided

in sections 1605 to i607 of this chaoter.

28 U.S.C. $ 1604.

22 C.F.R. $ 92.12 provides:

A notarizing officer must execute a written certificate attesting to the performance

ofa notarial act. This certificate may be inserted on or appended to the notarized

document. . . . The certificate evidences the performance of the notarial act.

Failure to execute this certificate renders the notarial act legally ineffective. Each

notarial act should be evidenced by a separate certificate; two or more distinct

notarial acts should not be attested to by one certificate.

22 C.F.R. $ 92.12 lintemal citation omined;.
"remove [his] immunity." Compl. at 3. The Complaint does not specify which arrests and

convictions reflect the alleged procedural violations.

On April 27,2015, Plaintiff also filed an Application to Proceed In Forma Pauperis that

the court granted on May 26,2015.

On June 12,2015, the Government filed a Motion To Dismiss ("Gov't Mot."), pursuant

to Rules l2(b)(1) and 12(bX6) of the Rules of the United States Court of Federal Claims

C'RCFC), for lack of subject matter jurisdiction and failure to state a claim.

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. $ 1491, "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. $ la91(a)(1). The Tucker Act, however, is "a

jurisdictional statute; it does not create any substantive right enforceable against the United

States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States

Court of Federal Claims] whenever the substantive right exists." United Stutes v. Testan,424

u.s. 392, 398 (1976).

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an

independent contractual relationship, Constitutional provision, federal statute, and/or executive

agency regulation that provides a substantive right to money damages. See Todd v. United

States,386 F.3d 1091, 1094 (Fed. Cir.2004) ("[J]urisdiction under the Tucker Act requires the

litigant to identify a substantive right for money damages against the United States separate from

the Tucker Act[.]"); see also Fisher v. United States, 402 F.3d, 1167 , 1172 (Fed. Cir. 2005) (en

banc) ("The Tucker Act... does not create a substantive cause of action; . . . a plaintiff must

identify a separate source of substartive law that creates the right to money damages. . . . [T]hat

source must be 'money-mandating. "'). Specifically, a plaintiff must demonstrate that the source

of substantive law upon which he relies "can fairly be interpreted as mandating compensation by

the Federal Government[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force

Exch. Serv.,846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter

jurisdiction [is] put in question. . . . [the plaintiffl bears the burden of establishing subject matter

jurisdiction by a preponderance ofthe evidence.").

B. Standard Of Review For Pro Se Litigants.

Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants

represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se

complaints, "however inartfully pleaded," are held to "less stdngent standards than formal

pleadings drafted by lawyers"). This court traditionally examines the record "to see if [apro se]

plaintiff hasacauseof action somewhere displayed." Ruderer v. United States,412F.2d, 1285,
1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs

complaint, the court "does not excuse [a complaint's] failures." Henke v. United States,60 F.3d

795,799 (Fed. Cir. 1995).

C. Standards For Motion To Dismiss.

l. Under RCFC l2(b)(l).

A challenge to the United States Court ofFederal Claims' "general power to adjudicate in

specific areas of substantive law . . is properly raised by a [Rule] l2(b)(l) motion[.]"

Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/sa RCFC 12(b)(l) ("Every

defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But

a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction [.]").

When considering whether to dismiss an action for lack ofsubject matter jurisdiction, the court is

"obligated to assume all factual allegations ofthe complaint to be true and to draw all reasonable

inferences in plaintiff s favor." Henke,60 F .3d at 797 .

2. Under RCFC 12(bX6).

A challenge to the United States Court of Federal Claims' "[ability] to exercise its

general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule]

l2(b)(6) motionf.l" Palmer, 168 F.3d at l3l3; see also RCFC 12(bX6) ("Every defense to a

claim for reliefin any pleading must be asserted in the responsive pleading . . . . But a party may

assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be

granted[.]").

When considering whether to dismiss an action for failure to state a claim, the court must

assess whether "a claim has been stated adequately" and then whether "it may be supported by

[a] showing [ofl any set of facts consistent with the allegations in the complaint." Bell Atl.

Corp. v. Twombil, 550 U.S. 544, 563 (2007), The plaintiff s factual allegations must be

substantial enough to raise the right to relief "above the speculative level." Id. at 555. The court

must accept all factual allegations in the complaint as true and make all reasonable inferences in

favor ofthe plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678J9 (2009).

D. The Government's June 12,2015 Motion To Dismiss.

1. The Governmentts Argument.

The Government argues that the April 2'/ ,2015 Complaint should be dismissed, because

the United States Court of Federal Claims does not have jurisdiction to adjudicate either claim.

Gov't Mot. at 1. The United States Court of Federal Claims has no jurisdiction over state court

criminal proceedings. Gov't Mot. at 3. And, the Complaint did not allege a violation of a

money-mandating statute, as required by the Tucker Act. Gov't Mot. at 3. In addition, if

Plaintiff was incarcerated by the State of Michigan, the United States Court of Federal Claims

does not have subject matter jwisdiction. Gov't Mot. at 6 (citing 28 U.S.C. g 1495 ("The United

States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for
damages by any person unjustly convicted of an offense against the United States and

imprisoned.") (emphasis added)).

In the alternative, the April 27,2015 Complaint "has not made factual allegations

sufficient to support the limited category of wrongful incarceration claims that could fall within

the jurisdiction of the Court." Gov'tMot. at9. Specifically, the April 27,2015 Complaint "does

not allege that [Plaintiff] was convicted ofan offense against the United States, as required by 28

U.S.C. 1495, because, as shown by the attachments to the complaint, [Plaintiffl was

convicted by a Michigan state court." Gov't Mot. at 9-10. And, the Aprll 27,2015 Complaint

"does not allege that his conviction has been reversed or set aside, as required by 28 U.S.C.

2513(a)(l)."4 Gov't Mot. at 9 10.

2. Plaintiff s Argument.

Plaintiff did not file a Response to the Government's June 12, 2015 Motion To Dismiss.

3. The Court's Resolution.

The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.

See Eslelle v. Gamble,429 U.S. 97,106 (197 6) (holding that the "pro se document is to be

liberally construed"). But, pro se plaintiffs must still "comply with the applicable rules of

procedural and substantive law." I|'alsh v. United States,3 Cl. Ct. 539, 541 (1983).

Under the Tucker Act, the United States Court of Federal Claims has jurisdiction to

adjudicate "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). To the extent that the April 27,2015 Complaint is directed

against the State of Michigan, the Third Judicial Circuit of Michigan, or private individuals and

members of the state judiciary, no claim is alleged against the United States. Therefore, the

court does not have subject matter jurisdiction. See 28 U.S.C. 5 l49l(a)(1); United

States v. Sherwood, 312 U.S. 584, 588 (1941) (holding that a suit "could not have been

maintained in the Court of Claims because that court is without iurisdiction of anv suit brousht

against private parties").

4 28 U.S.C. g 2513, in relevant part, provides:

(a) Any person suing under section 1495 of this title must allege and prove that:

(l) His conviction has been reversed or set aside on the ground that he is not

guilty of the offense of which he was convicted, or on new trial or rehearing he

was found not guilty of such offense, as appears from the record or certificate of

the court setting aside or reversing such conviction, or that he has been pardoned

upon the stated ground ofinnocence and unjust conviction.

28 U.S.C. $ 2513(a)(1).
The Tucker Act authorizes the United States Court of Federal Claims to adjudicate "any

claim for damages by any person unjustly convicted of an offense against the United States ald

imprisoned." 28 U.S.C. $ 1495 (emphasis added). To the extent that the April 27 , 2015

Complaint alleges claims against the United States Department of State, however, it does not

adequately allege a claim under 28 U.S.C. $ 1495 that governs claims for damages by persons

unjustly convicted and imprisoned of offenses against the United States. The April 27,2015

Complaint neither alleges that Plaintiff was unjustly convicted of an offense against the United

States nor asserts that the United States Department of State or other federal agency caused

Plaintiff s injury. Instead, it claims that Plaintiff s injury resulted from the State of Michigan's

failure to follow appropriate federal procedures. Compl. at 2.

Similarly, none of the statutes the April 27,2015 Complaint cites in support of the

sovereign immunity claim are money-mandating. Although the April 27 , 2015 Complaint

alleges that the three criminal cases should have been brought against Mr. Watkins under 28

U.S.C. $$ 1330-1331, the United States Court of Federal Claims cannot adjudicate claims

arising exclusively liom federal question jurisdiction under 28 U.S.C. $ 1331. See 28

U.S.C. $ 1330 (goveming actions against foreign states); 28 U.S.C. $ 1331 ("The district courts

shall have original jurisdiction of all civil actions arising under the Constitution, laws, or fieaties

of the United States."); see also Addams-More v. United States, 296 F. App'x 45, 47 (Fed. Cir.

2008) ("[T]he Court of Federal Claims 'lacks the general federal question jurisdiction of the

district courts."') (quoting Crocker v. United States,l25 F.3d 1475,1476 (Fed. Cir. 1997)).

In addition, there is no evidence that Plaintifls conviction and incarceration were unjust.

The April 27,2015 Complaint does not allege any finding of innocence, a pardon, or a certificate

of innocence to establish unjust conviction under 28 U.S.C S 2513. See Vicin v. United States,

468 F.2d 930, 933 (Ct. Cl. 1972) (holding that "[t]he unjust conviction statute has always been

strictly construed"). The April27,20l5 Complaint only requests that the guilty plea be vacated,

evidencing that Plaintiff s conviclions have not been reversed or set aside.

IV. CONCLUSION.

For these reasons, the Govemment's June 12,2015 Motion To Dismiss is granted. See

IT IS SO ORDERED,

SU BRADEN

Judge