Colbert v. United States , 617 F. App'x 981 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTONIO COLBERT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5029
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00918-FMA, Judge Francis M.
Allegra.
______________________
Decided: May 18, 2015
______________________
ANTONIO COLBERT, Washington, DC, pro se.
GREGG PARIS YATES, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
2 COLBERT v. US
PER CURIAM.
Before the court is an appeal from a judgment of the
United States Court of Federal Claims (“CFC”) in Antonio
Colbert v. United States, No. 13-918, and a series of
motions filed by appellant Antonio Colbert in connection
with that appeal. For the reasons explained below, the
CFC’s judgment dismissing Colbert’s complaint for dam-
ages pursuant to 42 U.S.C. § 1985 (2012) for lack of
subject matter jurisdiction is affirmed, and Colbert’s
various motions are denied.
BACKGROUND
We turn first to the appeal before us. Before attempt-
ing to invoke the jurisdiction of the CFC, Colbert filed
numerous lawsuits in the United States District Court for
the District of Columbia. Between July 2010 and Decem-
ber 2011, Colbert filed 49 cases in the district court, most
of which did not survive the court’s initial screening
process. In response to Colbert’s frequent filings, the
district court ruled that Colbert “abused the privilege of
proceeding [in forma pauperis].” Colbert v. Cincinnati
Police Dep’t, 867 F. Supp. 2d 34, 37 (D.D.C. 2011). The
court later enjoined Colbert from proceeding in forma
pauperis in that court. Order, Colbert v. Cincinnati Police
Dep’t, No. 11-cv-2250 (D.D.C. filed Feb. 21, 2012).
On July 23, 2013, Colbert filed an action in the dis-
trict court which was dismissed sua sponte based on its
earlier orders. See Order, Colbert v. Superior Court of the
D.C., No. 13-cv-1137 (D.D.C. filed July 23, 2013).
On November 21, 2013, Colbert filed a complaint in
the Court of Federal Claims alleging that the “District
Court of [the District of] Columbia” violated his rights
pursuant to 42 U.S.C. § 1985 by preventing him from
“docket[ing] his claims.” Complaint, Colbert v. United
States, No. 13-918 (Fed. Cl. filed Nov. 21, 2013).
COLBERT v. US 3
Six days later, the CFC dismissed Colbert’s complaint
sua sponte, finding that it did not possess subject matter
jurisdiction to entertain a claim for damages pursuant to
42 U.S.C. § 1985, a statute which relates to conspiracies
to interfere with civil rights. Opinion, Colbert v. United
States, No. 13-918 (Fed. Cl. Nov. 27, 2013). Specifically,
the CFC relied upon longstanding case law for the propo-
sition that federal court “jurisdiction for civil rights claims
lies exclusively in the district courts.” Id. at 2. 1 This
appeal followed.
COLBERT’S APPEAL
This court reviews the CFC’s dismissal of a matter
pursuant to Rule 12(b)(6) of the Rules of the United
States Court of Federal Claims (“RCFC”) de novo.
Northrop Grumman Info. Tech., Inc. v. United States, 535
F.3d 1339, 1343 (Fed. Cir. 2008); Adams v. United States,
391 F.3d 1212, 1218 (Fed. Cir. 2004) (citing Leider v.
United States, 301 F.3d 1290, 1295 (Fed. Cir. 2002)).
Whether Tucker Act jurisdiction exists for an action filed
in the CFC is a question of law that this court reviews
without deference. Metz v. United States, 466 F.3d 991,
996 (Fed. Cir. 2006). A pro se litigant’s complaint is held
to a less stringent standard than formal pleadings filed by
lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
1 Section 1343(a) of Title 28 of the United States
Code confers jurisdiction over § 1985 actions on the dis-
trict courts. For decades, the CFC and its predecessors
have consistently held that § 1985 and similar civil rights
actions may not be brought under the Tucker Act, and
this court has consistently affirmed those holdings. See,
e.g., Gant v. United States, 63 Fed. Cl. 311, 316 (2004),
aff’d, 417 F.3d 1328 (Fed. Cir. 2004); Anderson v. United
States, 22 Cl. Ct. 178, 179 n.2 (1990), aff’d, 937 F.2d 623
(Fed. Cir. 1991); Rogers v. United States, 14 Cl. Ct. 39, 50
(1987), aff’d, 861 F.2d 729 (1998).
4 COLBERT v. US
lenient pleading standards afforded to a pro se plaintiff
are not so lenient that they may forgive the failure to
state a claim that falls within the court’s jurisdiction,
however. Henke v. United States, 60 F.3d 795, 799 (Fed.
Cir. 1995). No plaintiff, pro se or otherwise, may be
excused from the burden of meeting the court’s jurisdic-
tional requirements. Kelley v. Sec’y. U.S. Dep’t of Labor,
812 F.2d 1378, 1380 (Fed. Cir. 1987).
On appeal, Colbert makes several arguments, none of
which address directly the CFC’s jurisdictional ruling.
First, Colbert contends that the CFC failed to take into
account that he filed his action as an “indigent”—i.e., in
forma pauperis. Appellant Informal Br. at 1. The CFC
expressly acknowledged that fact in its order, however. It
is, moreover, a fact which, as noted above, does not ab-
solve Colbert from the obligation to assert a claim within
the subject matter jurisdiction of the CFC.
Second, Colbert asserts that there was “misconduct”
by the “Clerk’s Office.” While it is unclear which clerk’s
office—the clerk’s office in the CFC or the clerk’s office of
the district court—to which he refers, neither allegation
would alter our scope of review of the judgment before us.
Colbert directs us to 18 U.S.C. § 1512 which makes it a
crime to tamper with a “witness, victim, or an informant.”
To the extent Colbert claims the clerk’s office at the CFC
engaged in criminal misconduct in their dealings with
him, this court has no authority to engage in a criminal
investigation of that office. To the extent Colbert claims
he could assert criminal claims against the clerk’s office
at the district court, the CFC was similarly without
authority to conduct a criminal investigation or inquiry,
and Colbert himself lacks the authority to institute one.
To the extent, moreover, that Colbert’s CFC complaint
was intended to seek collateral review of the order of the
district court dismissing his complaint there, the CFC
also does not possess jurisdiction to review such an order.
COLBERT v. US 5
Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)
(granting summary affirmance of Court of Federal Claims
order dismissing complaint that alleged that an order by
the United States District Court for the Western District
of Louisiana violated appellant’s Fifth Amendment
rights). The CFC may not substantively review the
wisdom of earlier district court orders.
Ultimately, Colbert offers nothing in his brief before
this court which draws into question the propriety of the
CFC’s judgment in this matter. Accordingly, we affirm
the judgment of the Court of Federal Claims and dismiss
Colbert’s appeal.
MOTIONS FILED IN THIS APPEAL
Colbert’s motions, at docket entries 26, 29, 30, and 31
also are denied. While Colbert is not very clear about the
grounds for his motions, it is clear that one thing he seeks
is monetary relief from this court, the CFC, or both. He
first contends he is entitled to “attor-
ney/witness/litigation” fees. While Colbert is entitled to
proceed pro se in this appeal, he is not entitled to have
counsel appointed for him in this civil appeal. See Lari-
scey v. United States, 861 F.2d 1267, 1270–71 (Fed. Cir.
1988) (“In civil proceedings . . . the right to counsel is
highly circumscribed, and has been authorized in exceed-
ingly restricted circumstances.”). If that is the relief
Colbert seeks, accordingly, we decline to afford it to him.
If Colbert is seeking litigation costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in
connection with his action before the CFC, such costs are
unavailable because he was not the “prevailing party” at
the trial court level and has not prevailed on his appeal.
The EAJA makes clear that prevailing party status is a
prerequisite to recovery of attorneys' fees and costs. Id.
Colbert also apparently would like this court—via a
writ of mandamus—to order the CFC to allow Colbert to
amend his complaint in order to assert a claim for “crime
6 COLBERT v. US
victim’s compensation” in connection with an assault
upon him. This court has no authority to do that howev-
er, regardless of the procedural vehicle invoked. “The
scope of the issues presented to [the] court on appeal must
be measured by the scope of the judgment appealed from,
not the arguments advanced by the appellant.” Engel
Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed.
Cir. 1999) (citation omitted). Because Colbert did not
include his claim for “crime victim’s compensation” in his
complaint before the CFC, Colbert is not free to raise it
for the first time on appeal.
Indeed, it appears that Colbert may have already liti-
gated his claim for “crime victim’s compensation,” as he
filed a complaint in the CFC for “crime victim’s compensa-
tion” on January 24, 2014, after he filed the complaint in
the action before us in this appeal. Complaint, Colbert v.
United States, No. 14-0062 (Fed. Cl. Jan. 24, 2014). The
complaint was dismissed pursuant to RCFC 12(h)(3) for
lack of subject-matter jurisdiction. Judgment, Colbert v.
United States, No. 14-0062 (Fed. Cl. Apr. 3, 2014). The
CFC then denied a motion to reconsider that dismissal on
May 22, 2014. Order, Colbert v. United States, No. 14-
0062 (Fed. Cl. May 22, 2014). Colbert did not appeal the
judgment of the CFC in case no. 14-0062. Having failed
to appeal the trial court’s judgment in that case, Colbert’s
claim—if it is the same he asserted previously—is barred
by principles of res judicata. See Federated Dep’t Stores v.
Motie, 452 U.S. 394, 398 (1981) (“A final judgment on the
merits of an action precludes the parties or their privies
from relitigating issues that were or could have been
raised in that action,” even if “the judgment may have
been wrong or rested on a legal principles subsequently
overruled in another case.”).
Colbert’s final request appears in a “brief assisting
[his] memorandum,” in which Colbert seeks to add addi-
tional issues to this appeal. Colbert invokes the Four-
teenth Amendment and indicates that he wishes to have
COLBERT v. US 7
certain police officers charged with police brutality.
Appellant Mot. for Leave of the Court/“Brief Assisting My
Memorandum” at 1. Colbert also alleges that the District
of Columbia Superior Court was involved in a criminal
conspiracy, and that the Harris Teeter supermarket chain
and one or more McDonalds’ restaurants engaged in
“criminal mischief.” Id. To the extent Colbert’s motion
seeks to add issues to this appeal, it also must be denied
because those issues fall outside of the scope of the judg-
ment of the CFC appealed here. Engel Indus., 166 F.3d at
1383.
CONCLUSION
For the above reasons, the judgment of the Court of
Federal Claims at issue in this appeal is affirmed, appel-
lant’s motions filed in connection with this appeal are
denied, and the appeal is dismissed. 2
AFFIRMED
2 To the extent Colbert’s filings seek personal meet-
ings with the Clerk of this court, those requests are
denied as well. The Clerk lacks the authority to review or
hear submissions of evidence or argument and is under no
obligation to conduct in person meetings with litigants.