# In the United States Court of Federal Claims

No. 20

- 792 C (Filed July 2 1 , 20 20 )
NOT FOR PUBLICATION

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

*

*
DERRICK MICHAEL ALLEN

, * SR., *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*
Defendant. *

*

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

ORDER

W OLSKI , Senior Judge.

Plaintiff D errick Michael Allen, Sr., who is representing himself in this

matter , alleg es that the United States District Court for the Middle District of
North Carolina (district court) intentionally and improperly dis missed several
lawsuits he filed in that court, on the grounds that they lack ed subject

- matter jurisdiction or otherwise failed to state a claim

. Compl. at 1

– 3. A careful review of the complaint reveals that, even if everything Mr. Allen alleges is true, the subject
matter of his complaint does not come within the jurisdiction of this court.

As a preliminary matt er, the Court notes that o n July 8, 2020, plaintiff filed a

motion for appointment of counsel under 28 U.S.C. § 1915(e)(1). See ECF No. 8. Although the government has not yet responded to this motion, section 1915(e)(1) does not authorize a court to “app oint” an attorney to represent an indigent litigant, but instead merely to “request” that one do so. See Mallard v. U.S. Dist. Court for

the S. Dist. of Iowa, 490 U.S. 296, 300

– 09 (1989).

The Court generally refrains from making such requests, which an attorney may feel leaves him no choice but to accept. The very concept of a branch of our national government compelling an attorney to represent a party without payment- 2

-

for his services is inimical to the purpose of our c ourt, which exists to ensure that citizens are compensated when the government takes or contracts for their property

or services. Barrera v. United States , No. 15

- 1371C, 2016 WL 690682, at *1 (Fed. Cl. Feb. 19, 2016). In a ny event, when sought by a plaintiff in a civil matter who is unable to afford counsel, courts may appropriately involve themselves in the securing of counsel only in “extraordinary circumstances” with severe potential

consequences

--- such as the danger of being civilly committed, see Vitek v. Jones, 445 U.S. 480 (1980) (plurality opinion in relevant part), or of losing custody of a child,

see Lassiter v. Dep ’

t of Soc. Servs., 452 U.S. 18 (1981). Here, plaintif f ’ s claim is for compensation, presumably relat ing to the lawsuit s he filed in the district court

. Compensation claims by their nature fall short of the extraordinary circumstances justifying court

- requested assistance. Because plaintiff failed to demonstrate the extraordinary circumstances that would make it appropriate for the Court to request that a lawyer represent him, plaintif f ’s motion for appointment of counsel,
ECF No. 8

, is DENIED

.

In this case, Mr. Allen seeks $400 in compensation for the filing fee

associated with one of his federal lawsuits in North Carolina, 1 as well as an improbable $2 50,000 for “postage, copying fees, and certified mail (return receipts)”

expenses that he allegedly incurred in connection with eleven lawsuits he ha d filed

in th e district court

. Compl. at 4 ; see also id . at 2 (enumerating case number s). In brief, Mr. Allen challenges the district court’s dismissal of his numerous lawsuits because he contends the complaints contained sufficient facts to survive dismissal.

Id . at 2

– 3. He contends these dismissals constitute “intentional disregard for the rights” he has under the U.S. Constitution, specifying in this regard only a due process right to commence lawsuits. Id . at 1. Relatedly, plaintiff appears to assert that several of the dismissals are deficient because they employ legal reasoning
from un published opinions, which Mr. Allen posits are “not legal precedent.” Id . at

2. He maintains that he properly ple ade d cases coming under the federal question and diversity jurisdiction statutes, 28 U.S.C. §§ 1331 and 1332

. Id . at 3. Finally, plaintiff appears to challenge the district court’s decision to imprison him for unlawful ownership of a firearm as a felon, 2 arguing that he was never a felon. Id

. 3

1 The filing fee appears to be for the case Allen v. Tri

- Lift N.C., Inc. , 1:19cv851, 2020 WL 70984 (M.D.N.C. Jan. 7, 2020)

. See Compl. at 2 , 4

.

2 See generally United States v. Allen

, 734 F. App’x 898 (4th Cir. 2018) (per curiam),

vacated , 139 S. Ct. 2774 (2019) (mem.).

3 Although he does not articulate an unjust conviction and imprisonment claim under 28 U.S.C. § 2513, such a claim could not be brought in this case due to the rule against claim

- splitting, see Young v. United States

, 60 Fed. Cl. 418, 423

– 24- 3

-

As is frequently the case when individuals represent themselves without the

as sistance of counsel, Mr. Allen seems to misunderstand the jurisdiction that Congress has bestowed up on the Court of Federal Claims. Under the Tucker Act,

t his court is primarily granted jurisdiction to hear cases brought against the U.S. government by par ties alleging breach of a contract or the violation of a federal law that requires the federal government to pay money when violated

--- often called a “money

- mandating” law

. See 28 U.S.C. § 1491 (a) (1)

. In no event may this court entertain claims involving tortious conduct. See id . (prohibiting claims “sounding in tort”). Although Mr. Allen invoke s the Tucker Act as a source of our court’s jurisdiction, see Compl. at 1, the Tucker Act alone does not c reate a substantive right to relief. See Me. Cmty. Health Options v. United States

, --- U.S.

--- , 140 S. Ct.
1308, 1327 , 206 L.Ed.2d 764 (2020) (quoting United States v. Navajo Nation , 556 U.S. 287, 290 (2009))

. Instead, the Tucker Act must be paired wit h a money

mandating source of law. Navajo Nation , 556 U.S. at 290. The complaint does not properly allege the existence of a contract with the federal government, nor does it allege that the federal government violated a money

- mandating provision of law.
See Compl. 1

– 5; cf

. United States v. Mitchell , 463 U.S. 206, 216 (1983) (“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 . . . .”) ; Smith v. United States , 709 F.3d 1114, 1116 (Fed. Cir. 2013) (“To be cognizable under the Tucker Act, the claim must be for money damages against the United States, and the substantive law must be money

- mandating.”)

.

T he only federal law that Mr. Allen appears to mention as a basis for relief is
the Fifth Amendment’s Due Process Clause

. See Compl. 1. 4 But t his constitutional provision has long been held not to support this court’s jurisdiction. See LeBlanc v.

United States , 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing Carruth v. United States

, 627 F. 2 d 1068, 1081 (Ct. Cl. 1980)); see also Smith v. United States , 709 F.3d at 1116 (“The law is well settled that the Due Process clauses of both the Fifth and

(2004)

, as he has previously filed a separate complaint containing that claim, see Allen v. United States , No. 20

- 437C (Fed. Cl. Apr. 13, 2020).

4 As noted above, plaintiff also cites the federal question and diversity jurisdiction statutes, 28 U.S.C. §§ 1331

– 32. See Compl. at 3. But these concern the jurisdiction of district courts, not our court. See

, e.g. , Curry v. United States , 787 F. App’x 720, 722 (Fed. Cir. 2019); Ali v. United States , No. 19

- 586C, 2019 WL 3412313, at *4 (Fed. Cl. July 29, 2019). Moreover, those statutes contain no language mandating that the federal government pay money damages for their violation. See 28 U.S.C. §§ 1331

– 32.- 4

-

Fourteenth Ame ndments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act.”). 5

Moreover, t o the extent that Mr. Allen complains about the district court’s disposition of his previous cases, that is not a matter the Court can entertain because the Court of Federal Claims lacks jurisdiction to review the decisions of the
federal district courts. See Shinnecock Indian Nation v. United States , 782 F.3d 1345, 1352 (Fed. Cir. 2015) (“ Binding precedent establishes that the Court of Federal Claims has no jurisdiction to review the merits of a decision rendered by a federal district court.”) ; Vereda

, Ltda. v. United States , 271 F.3d 1367, 1375 (Fed. Cir. 2001) (“The Court of Federal Claims ‘does not have jurisdiction to revie w the
decisions of district courts

. ’” (quoting Joshua v. United States , 17 F.3d 378, 380 (Fed. Cir. 1994)) ) ; see also Allustiarte v. United States, 46 Fed. Cl. 713, 718 (2000) (no jurisdiction over bankruptcy court ’ s decisions), aff ’ d

, 256 F.3d 1349 (2001)

, cert. denied, 534 U.S. 1042 (2001) ; cf

. Campbell v. United States , 932 F.3d 1331, 1340 (Fed. Cir. 2019) (holding that our court cannot “‘entertain a taking[s] claim that requires the court to scrutinize the actions of another tribunal.’” (quoting

Petro

- H unt, L.L.C. v. United States , 862 F.3d 1370, 1386 (Fed. Cir. 2017) (alteration in original)))

. If M r. Allen is displeased with the outcomes of his cases , he must appeal to the immediate appellate court which oversees judgments rendered by th at

court , the United States Court of Appeals for the Fourth Circuit. See 28 U.S.C. §§ 41, 1291 , 1294(1)

. Further, to the extent Mr. Allen alleges that the judges of the

district court disposed of his cases improperly , this is a claim that falls outside this

cour t’s subject

- matter jurisdiction because it sounds in tort. See 28 U.S.C. § 1491(a) (1)

.

When a plaintiff has failed to state a claim that falls within the subject

matter jurisdiction of this court, a sua sponte dismissal is required. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject

- matter jurisdiction, the court must dismiss the action.”); St. Bernard Par

. Gov’t v. United States , 916 F.3d 987,

99 2

– 93 (Fed. Cir. 2019) (“[T]he court must address jurisdictional issues, even sua sponte , whenever those issues come to the court’s attention, whether raised by a party or not . . . .”); Folden v. United States , 379 F.3d 1344, 1354 (Fed. Cir. 2004).

Becaus e Mr. Allen has failed to raise a claim within the Court’s jurisdiction, the

5 The only circumstance in which the Fift h Amendment’s Due Process Clause may be a basis for our jurisdiction is when a claim concerns an illegal exaction , which is

not the case here

. See Aerolineas Argentinas v. United States , 77 F.3d 1564, 1573 (Fed. Cir. 1996); Augusta v. United States , No. 1 8

- 883C, 2018 WL 6721748, at *3 n.6 (Fed. Cl. Dec. 20, 2018).- 5

-

Court DISMISSE S th e c ase under RCFC 12( h )( 3 )

. The Clerk i s directed to close

the case

. 6

IT IS SO ORDERED.

VICTOR J. WOLSKI

Senior Judge

6 P laintif

f ’s application to proceed in forma pauperis , ECF No. 4

, is hereby
GRANTED , and he is thus relieved of paying the filing fee.