May v. United States , 534 F. App'x 930 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MORRIS MAY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5109
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-774, Judge Susan G. Braden.
______________________
Decided: August 6, 2013
______________________
MORRIS MAY, of Cincinnati, Ohio, pro se.
ALEXIS J. ECHOLS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and PATRICIA M. MCCARTHY, Assistant Director.
______________________
Before PROST, O’MALLEY, and TARANTO, Circuit
Judges.
2 MORRIS MAY v. US
PER CURIAM.
Morris May appeals a Court of Federal Claims order
that dismissed his complaint and denied his motions to
transfer, to expedite, and to issue an interim award of pro
se attorney fees, as well as a subsequent order that denied
reconsideration. We affirm.
BACKGROUND
After unsuccessfully contesting a traffic ticket in Ohio
traffic court, Mr. May sought direct review in the United
States Supreme Court. Between November 18, 2010, and
July 25, 2011, Mr. May made five attempts to petition the
Supreme Court for a writ of mandamus. Each time, the
clerk’s office of the Supreme Court returned his papers
with a letter explaining their deficiencies.
After the fifth rejection, Mr. May brought suit in the
Claims Court against the United States and Gail John-
son, a deputy clerk at the Supreme Court, alleging that
Ms. Johnson made misrepresentations and was negligent
in the performance of her duties, that she “arbitrarily and
intentionally discriminated” against Mr. May and com-
mitted an “abuse of process” by denying him access to the
Supreme Court, and that her actions constituted an
“intentional infliction of emotional distress.” Complaint,
May v. United States, No. 11-774 (Fed. Cl. Nov. 16, 2011).
Mr. May alleged that the refusal to file his petitions
violated his rights under the Privileges and Immunities
Clause of Article IV of the Constitution, the Petition
Clause of the First Amendment, the Due Process and
Takings Clauses of the Fifth Amendment, the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment, and 42 U.S.C. §§ 1981 and 1982. Id.On March 30, 2012, the Claims Court dismissed Mr.
May’s takings claim for failure to state a claim upon
which relief can be granted, dismissed his remaining
claims for lack of jurisdiction, and denied his motions to
transfer, to expedite, and to issue an interim award of
attorney fees. May v. United States, 104 Fed. Cl. 278, 287
MORRIS MAY v. US 3
(2012). On April 30, 2012, Mr. May moved for a “new
trial,” for reconsideration, to strike, to expedite, to trans-
fer, and to issue an interim award of pro se attorney fees.
On May 3, 2012, the Claims Court denied Mr. May’s
motion for failure to demonstrate any manifest error of
law or mistake of fact in the court’s March 30, 2012,
order. May v. United States, No. 11-774 (Fed. Cl. May 3,
2012) (order).
Mr. May’s appeal was docketed in this court on July 6,
2012. After Mr. May failed to file his informal brief
within 21 days as required under this court’s Rule
31(e)(1)(A), this court dismissed his appeal for failure to
prosecute. On September 17, 2012, Mr. May responded
by filing a motion to expedite, to transfer, to issue an
interim award of pro se attorney fees, and to grant other
miscellaneous relief. He attached his overdue informal
brief, which referred to the motion for the answer to each
question on the form. The court construed Mr. May’s
submission as a motion to reinstate his appeal and, on
October 9, 2012, vacated the dismissal and treated Mr.
May’s September 17, 2012 submission as his opening
brief. May v. United States, No. 2012-5109 (Fed. Cir. Oct.
9, 2012) (order). Mr. May then moved for an interim
award of pro se attorney fees, arguing that he was the
“prevailing party” under the court’s October 9, 2012 order.
The court denied Mr. May’s request for attorney fees on
December 12, 2012, May v. United States, No. 2012-5109
(Fed. Cir. Dec. 12, 2012) (order), and it denied reconsider-
ation on April 30, 2013, May v. United States, No. 2012-
5109 (Fed. Cir. Apr. 30, 2012) (order). After Mr. May filed
a second motion for reconsideration, the clerk of the court
sent Mr. May a letter, explaining that the court had
already acted on his motion for reconsideration and that
no action would be taken on his second motion. On July
19, 2013, Mr. May filed a motion for citation of supple-
mental authorities and to make orders precedential, again
arguing his entitlement to pro se attorney fees based on
the court’s October 9, 2012 order.
4 MORRIS MAY v. US
DISCUSSION
A. Dismissal of Mr. May’s Complaint
We review de novo the dismissal of Mr. May’s com-
plaint for lack of jurisdiction and failure to state a claim
upon which relief can be granted. Boyle v. United States,
200 F.3d 1369, 1372 (Fed. Cir. 2000).
The Tucker Act, 28 U.S.C. § 1491, limits the jurisdic-
tion of the Claims Court to claims for money damages
against the United States based on sources of substantive
law that “can fairly be interpreted as mandating compen-
sation by the Federal Government.” United States v.
Navajo Nation, 556 U.S. 287, 290 (2009) (internal quota-
tion marks omitted). Here, the trial court properly de-
termined that it did not have jurisdiction to hear most of
Mr. May’s claims.
The Privileges and Immunities Clause of Article IV of
the Constitution, the Petition Clause of the First Amend-
ment, the Due Process Clause of the Fifth Amendment,
and the Equal Protection and Due Process Clauses of the
Fourteenth Amendment do not mandate the payment of
money by the government for violations. See U.S. Const.
art. IV, § 2, cl. 1 (lacking any money-mandating provi-
sion); United States v. Connolly, 716 F.2d 882, 887 (Fed.
Cir. 1983) (First Amendment alone was insufficient to
confer jurisdiction because it does not “command the
payment of money”); LeBlanc v. United States, 50 F.3d
1025, 1028 (Fed. Cir. 1995) (Due Process Clauses of the
Fifth and Fourteenth Amendments and Equal Protection
Clause of the Fourteenth Amendment were insufficient
for jurisdiction “because they do not mandate payment of
money by the government”).
Mr. May likewise cannot sue in the Claims Court un-
der 42 U.S.C. §§ 1981 or 1982. Nothing in those provi-
sions is fairly read to impose a money-mandating
obligation on the United States, or at least not one en-
forceable under the Tucker Act. Courts have consistently
so held, often in non-precedential rulings, and we are
MORRIS MAY v. US 5
aware of no contrary ruling. See, e.g., Afzal v. United
States, 350 F. App’x 436, 438 (Fed. Cir. 2009) (non-
precedential decision holding that “the Court of Federal
Claims does not have jurisdiction over discrimination
claims”); Brown v. United States, No. 03-5245, 2004 WL
344411 (D.C. Cir. Feb. 20, 2004) (non-precedential order
finding no sovereign-immunity waiver for a claim under
42 U.S.C. § 1981) (citing Hohri v. United States, 782 F.2d
227, 245 n.43 (D.C. Cir. 1986) (citing authorities), vacated
for lack of jurisdiction, 482 U.S. 64 (1987)); Allbritton v.
United States, No. 98-5140, 1998 WL 791719, at *2 (Fed.
Cir. Nov. 12, 1998) (non-precedential decision holding
that parties asserting jurisdiction under 42 U.S.C. § 1981had “not stated any claim which mandates a payment of
money damages and thus ha[d] not stated any claim over
which the Court of Federal Claims has jurisdiction”); see
also Ponds v. United States, No. 93-5108, 1994 WL
108054, at *4 (Fed. Cir. Mar. 29, 1994) (non-precedential
decision: “Jurisdiction under the [Civil Rights Act] resides
in the district courts, not in the Court of Federal
Claims.”); Ramirez v. United States, 239 F. App’x 581, 583
(Fed. Cir. 2007) (non-precedential decision holding that
“the Court of Federal Claims does not have jurisdiction
over Ms. Ramirez’s claims of civil rights violations under
sections 1983 and 1985 of Title 42; the general civil rights
claims alleged are not based on any money-mandating
provisions, and those statutes do not give rise to liability
for the United States”).
As for Mr. May’s claims for misrepresentation, negli-
gence, and intentional infliction of emotional distress, the
trial court properly held those claims, which are not
within the categories of cases listed in the Tucker Act and
which sound in tort, to be outside the Tucker Act grant of
jurisdiction. 28 U.S.C. § 1491(a)(1); see U.S. Marine, Inc.
v. United States, No. 2012–1678, 2013 WL 3491424, at
*11 (Fed. Cir. July 15, 2013). Mr. May’s claims against
Ms. Johnson in particular were properly dismissed for the
additional reason that the Tucker Act is limited to suits
against the United States. See United States v. Sher-
6 MORRIS MAY v. US
wood, 312 U.S. 584, 588 (1941) (“[I]f the relief sought is
against others than the United States the suit as to them
must be ignored as beyond the jurisdiction of the court.”).
As the trial court recognized, the Claims Court does
have jurisdiction to hear Mr. May’s takings claim. E.
Enters. v. Apfel, 524 U.S. 498, 520 (1998); Dames & Moore
v. Regan, 453 U.S. 654, 689-90 (1981). The problem with
the takings claim is not jurisdictional but a plain lack of
merit: even making all reasonable inferences in Mr. May’s
favor, his allegations fail to state a claim for relief. Mr.
May characterizes the refusal to file his petitions in the
Supreme Court as a “regulatory taking of the option of S.
Ct. R. 22,” and the alleged constitutional and statutory
civil rights violations as a “taking” of those rights. But
the Takings Clause has never been treated as so broad in
its coverage, lest it become, what it has not been, a readily
available vehicle for seeking compensation for a vast
array of procedural-rights, constitutional, and statutory
violations. Mr. May provides no support for the conten-
tion that the wrongs alleged here effected a taking of the
one of more concrete property interests covered by the
Clause. 1
Thus, there is no basis for reversing the dismissal of
the complaint. And because the trial court committed no
error of law or mistake of fact in that dismissal, it did not
abuse its discretion in denying reconsideration of the
dismissal. See Massachusetts Bay Transp. Auth. v. Unit-
ed States, 254 F.3d 1367, 1378 (Fed. Cir. 2001) (reconsid-
eration denial reviewed for abuse of discretion).
1Mr. May contends that the trial court dismissed his
complaint on the ground that he lacked a right to a direct
appeal to the Supreme Court from a request for a three-
judge panel in state court. In fact, the trial court dis-
cussed direct-appeal jurisdiction only in denying Mr.
May’s motion to transfer.
MORRIS MAY v. US 7
B. Motions to Transfer
We review the denial of Mr. May’s motions to transfer
for an abuse of discretion, a form of review that includes
de novo consideration of issues of law. Zoltek Corp. v.
United States, 672 F.3d 1309, 1314 (Fed. Cir. 2012).
Mr. May’s complaint included as Count 6 a request for
a writ of mandamus, pursuant to 28 U.S.C. §§ 1361 and
1651, to compel Ms. Johnson to perform her alleged duty
to file Mr. May’s legal papers. Three weeks after he filed
his complaint, Mr. May moved to transfer Count 6 to the
Supreme Court, pursuant to 28 U.S.C. § 1631, arguing
that the Supreme Court has exclusive jurisdiction to
compel Ms. Johnson to perform her duties. Subsequently,
Mr. May moved to transfer his tort claims to the United
States District Court for the District of Columbia. Mr.
May makes similar demands here, asking that we either
transfer his appeal to the Supreme Court or reverse the
Claims Court and remand with instructions to transfer to
the Supreme Court the papers he attached to his com-
plaint as DOCUMENT “I” (which contain his petition for
a writ of mandamus). He also asks for transfer of his
claims under 42 U.S.C. §§ 1981 and 1982 to the district
court in the District of Columbia if we hold those claims to
be outside the Claims Court’s jurisdiction.
The trial court did not abuse its discretion in rejecting
the request to transfer Count 6 to the Supreme Court.
Section 1631 authorizes a transfer only if, among other
things, “it is in the interest of justice.” Count 6 seeks a
writ of mandamus compelling the Supreme Court clerk’s
office to file papers it has already repeatedly determined
to be deficient. Transferring that claim to the Supreme
Court is not in the interest of justice: either Mr. May
could have challenged the clerk’s office’s determinations
within the Court when they were made, in which case he
bypassed his proper remedy; or the Supreme Court has,
for sufficient reasons, prevented recourse to the Justices
from such determinations, in which case transferring the
claim would be inconsistent with the Supreme Court’s
8 MORRIS MAY v. US
practice. Either way, transfer is not in the interest of
justice. For the same reason, we must deny Mr. May’s
request that we remand this case to the Claims Court
with instructions to transfer DOCUMENT “I” to the
Supreme Court, as DOCUMENT “I” includes Mr. May’s
petition for a writ of mandamus directed to Ms. Johnson.
Moreover, DOCUMENT “I” contains additional re-
quests for relief that are not within the Supreme Court’s
jurisdiction and therefore cannot be transferred there. 28
U.S.C. § 1631. These include a request for a writ of
mandamus directed to the Ohio traffic-court magistrate, a
request for a judgment against Ms. Johnson, and a corre-
sponding award of money damages. Because the Ohio
traffic-court dispute does not come within the Supreme
Court’s original or appellate jurisdiction, the Supreme
Court does not have the authority to issue a writ of man-
damus directed to the Ohio magistrate. U.S. Const. art.
III, § 2, cl. 2 (granting the Supreme Court original juris-
diction only in “Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall
be Party”); 28 U.S.C. § 1257 (limiting the Supreme Court’s
appellate review of state court judgments to those “ren-
dered by the highest court of a State”); In re Common-
wealth of Massachusetts, 197 U.S. 482, 488 (1905) (“[I]n
cases over which we possess neither original nor appellate
jurisdiction we cannot grant prohibition or mandamus or
certiorari as ancillary thereto.”). Because the Supreme
Court lacks original jurisdiction over the claims against
Ms. Johnson, transfer of those claims is likewise imper-
missible. 28 U.S.C. § 1631. Nor is there any basis to
transfer this appeal to the Supreme Court, as Mr. May
requests.
We find no abuse of discretion in the trial court’s de-
nial of Mr. May’s motion to transfer his tort claims to the
United States District Court for the District of Columbia,
both because the transfer would not be in the interest of
justice and because of the plain problems identified by the
trial court. See, e.g., Sharma v. Stevas, 790 F.2d 1486,
MORRIS MAY v. US 9
1486 (9th Cir. 1986) (“The defendant Clerk of the United
States Supreme Court has absolute quasi-judicial immun-
ity because his challenged activities were an integral part
of the judicial process.”); 28 U.S.C. § 2675(a) (limiting
FTCA claims to those in which the claimant has “first
presented the claim to the appropriate Federal agency”).
Mr. May’s request to transfer his claims under 42 U.S.C.
§§ 1981 and 1982 to the district court in the District of
Columbia (apparently raised for the first time on appeal)
is denied, as the transfer of frivolous claims is not in the
interest of justice. 28 U.S.C. § 1631; Galloway Farms,
Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987)
(“The phrase ‘if it is in the interest of justice’ relates to
claims which are nonfrivolous and as such should be
decided on the merits.”). Frivolous claims include “‘legal
points not arguable on their merits’” and “those whose
disposition is obvious,” id. (citations omitted), both of
which fairly characterize Mr. May’s section 1981 and 1982
claims; the United States Court of Appeals for the District
of Columbia Circuit has twice held claims brought under
section 1981 to be barred by the doctrine of sovereign
immunity, as explained above, and Mr. May’s claims fail
to allege facts that fit the protection of section 1981 or
1982. See 42 U.S.C. § 1981 (“All persons . . . shall have
the same right . . . to make and enforce contracts, to sue,
be parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens . . . .”); id. § 1982
(“All citizens . . . shall have the same right . . . as is en-
joyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.”).
C. Motions for Awards of Pro Se Attorney Fees
Mr. May asks that we reverse the trial court’s denial
of his motion for attorney fees. Fee rulings are generally
reviewed for an abuse of discretion, Libas, Ltd. v. United
States, 314 F.3d 1362, 1364 (Fed. Cir. 2003), while wheth-
er a party prevailed is generally reviewed de novo, A.
Hirsh, Inc. v. United States, 948 F.2d 1240, 1244 (Fed.
10 MORRIS MAY v. US
Cir. 1991). Mr. May also requests attorney fees for his
work performed before this court.
The Claims Court properly denied Mr. May’s request
for an interim award of pro se attorney fees pursuant to
28 U.S.C. § 2412 and 42 U.S.C. § 1988. 2 Pro se litigants
are not entitled to recover attorney fees under either
provision. Kay v. Ehrler, 499 U.S. 432, 435-38 (1991) (pro
se litigants not entitled to attorney fees under § 1988);
Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1583 (Fed.
Cir. 1991) (under 28 U.S.C. § 2412, “a party acting pro se
is not entitled to an attorney fee award”). Moreover, even
if Mr. May were not precluded by his status as a pro se
litigant, he would not be entitled to any award because he
did not prevail on any issue. 28 U.S.C. § 2412 (permitting
awards of costs and fees to “the prevailing party”); 42
U.S.C. § 1988 (same); Hanrahan v. Hampton, 446 U.S.
754, 758 (1980) (“Congress intended to permit the interim
award of counsel fees only when a party has prevailed on
the merits of at least some of his claims.”). Mr. May
therefore is plainly not entitled to fees under the provi-
sions invoked, and contrary to Mr. May’s suggestion, we
see no violation of equal protection or due process in
provisions that provide attorney’s fees only where an
attorney has put in time for the party and only in cases
that turn out to be meritorious in the sense that the
attorney’s client has prevailed. 3
Mr. May also cites 31 U.S.C. § 1304 and 28 U.S.C.
2
§ 2414, which concern damage judgments entered against
the government. Because no damage judgment has been
entered against the government, these provisions are
inapplicable.
3Mr. May also submits that the right to proceed pro
se is a property right and a civil right protected under the
Fifth and Fourteenth Amendments. Mr. May has not
been denied an opportunity to proceed pro se.
MORRIS MAY v. US 11
As for Mr. May’s request for an interim award of at-
torney fees for his work related to reinstating this appeal,
this court has already denied the request, and reconsider-
ation of the denial, and informed Mr. May that further
requests for reconsideration would not be entertained.
Because Mr. May’s July 19, 2013 motion for citation of
supplemental authorities and to make orders precedential
is in fact yet another request for reconsideration on this
issue, that motion is denied. 4 Moreover, nothing in to-
day’s opinion warrants any award of fees to Mr. May, both
because he appears here pro se and because he has not
prevailed on any claim. In light of this decision, Mr.
May’s motion to “waive” Federal Circuit Rule 47.7, which
sets out the timing and form of requests for attorney fees,
is denied as moot.
D. Other Relief
Mr. May’s petition for a writ of mandamus to compel
the Claims Court to enter a Rule 54(b) certificate is de-
nied. No such certificate was necessary, as the Claims
Court entered final judgment dismissing all of Mr. May’s
claims. Mr. May’s request for “delay damages” is likewise
denied, as Mr. May has not shown that any improper
delay occurred or that he incurred any damage as a
result. Mr. May’s motions to expedite are denied as moot.
CONCLUSION
For the foregoing reasons, we conclude that the judg-
ment of the Claims Court should be affirmed.
AFFIRMED
4 To the extent that the motion asks the court to con-
sider the supplemental authority he has newly cited, the
court has done so.