Herbert v. United States ( 2016 )


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    No. 16-237C                                       FILED
    (Filed: July 29,2016)
    ***NOT FOR PUBLICATION* **                                 JUL 2 I 20t6
    U.S, COURT OF
    FEDERAL CLAIMS
    SUSAN HERBERT, et al.,
    Pro se; RCFC l2(b)(1); Lack            of
    Plaintiffs,                   Subject Matter Jurisdiction; Res
    Judicata
    THE UNITED STATES,
    Defendant,
    ORDER OF'DISMISSAL
    On February l7 ,2016, pro se plaintiff Susan Herbert filed the instant complaint on
    behalf of herself and 66 other named plaintiffs against the United States and John
    Coveny.r Among other things, the complaint seeks just compensation for "violation of
    every right including the birthright," a hearing in person, an injunction preventing the
    United States from collecting taxes from the plaintiff, an injunction preventing President
    Barack Obama from acting as President, an injunction prohibiting the govemment from
    claiming jurisdiction over the plaintiffs, and a declaration that "women and their children
    are a part of mankind." Compl. at 41. Further, the plaintiff supposedly "in her official
    capacity as President" levies allegations oftreason against an individual named John
    Coveny. Compl. at 34,37. The complaint expressly states that "damages in this case
    does not refer to money." Compl. at 41. The plaintiff also filed an application to proceed
    informa paupens (ECF No. 4).
    The government filed a motion to dismiss pursuant to RCFC l2(bXl) for lack of
    subject matter jurisdiction on April 7,2016. Def.'s Mot. Dismiss (ECF No. 6). After
    I As apro se plaintiff Ms. Herbert can only represent herself and members of her immediate
    family before the court. RCFC 83.1(a)(3). Therefore, the other named plaintiffs must be
    removed from this action.
    *
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    failing to properly serve Ms. Herbert with the rnotion, the court granted the government's
    motion to file a conected motion to dismiss on June 14,2016. Order (ECF No. l2). Ms.
    Herbe( filed a motion opposing the government's motion to dismiss. Pl.'s Resp. (ECF
    No.ll).
    BACKGROUND
    "Ms. Herbert   has  previously filed in various courts a number of complaints nearly
    identical to this one, all of which have been disrnissed." Herbert v. United States,No.
    l4-287C,
    2014 WL 3686133
    , at * I (Fed. Cl. July 24,2014) (citing Order of Dismissal,
    Clemons v. United States, No. 13-162 (Fed. Cl. Mar. 15, 2013); Order, Herbert v.
    Obama, No. I 1-1 869, 201 
    1 U.S. Dist. LEXIS 122644
     (D. Minn. Aug. 24, 20ll)
    (dismissing complaint for failure to state a claim for which relief can be granted); Order,
    Herbert v. Uniled States, No. 3:07-cv-964-J-33TEM, 
    2007 U.S. Dist. LEXIS 88787
    (M.D. Fla. Nov. 1, 2007) (dismissing claim for frivolousness and for failure to state a
    claim upon which reliefcan be granted); Order, Herbert v. Uniled States, No. 3:07-cv-
    00776-J-16MCR,2007 U.S. Dist. LEXIS72022 (M.D. Fla. Sept.27,2007) (dismissing
    claim as frivolous)).
    Here, Ms. Herbert begins her free-flowing complaint by stating that the court's
    previous dismissal ofher case in20l4 is invalid because it was not delivered by first
    class mail. Based upon the complaint and the plaintiffs subsequent briefs, it appears that
    Ms. Herbert's primary grievance is the govemment's failure to pay her an alleged default
    judgment related to the 2008 Presidential election. Ms. Herbert levies countless
    Constitutional grievances against the government including due process, equal protection,
    and takings violations. She specifically sets out her desired relief. First, the plaintiffasks
    the court for nonmonetary damages for "violation ofevery right including the birthright."
    Compl. at 41. Second, Ms. Herbert seeks a hearing in person in order to state her
    grievances against the govemment. Compl. at 4l . Next, Ms. Herbert asks the court for
    injunctions prohibiting: (1) the government from collecting taxes from her; (2) the
    govemment from claiming they possess jurisdiction over her; and (3) Barack Obama
    from "acting as if he is the rightful, lawful President." Compl. at 41. Finally, the
    plaintiff seeks a declaration stating that women and their children are part of mankind and
    possess equal rights. Ms. Herbert does not ask for monetary damages.
    LEGAL STANDARD
    RCFC 12(bX1) permits the government to raise the court's lack of subject matter
    jurisdiction in its responsive pleading. In her complaint, Ms. Herbert bases this court's
    jurisdiction upon the Tucker Act, 28 U.S.C. g 1491. Compl. at 1. Title 28 U.S.C. g
    la91(a)(1) grants this court 'Jurisdiction to renderjudgment upon any claim against the
    United States founded either upon the Constitution or any Act of Congress or any
    regulation ofan 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."
    However, the Tucker Act alone cannot be thc substantive basis for a plaintiff s right to
    relief . Uniled States v. Testan, 
    424 U.S. 392
    , 398 ( 1976). In order to establish a right to
    monetary relief, a plaintiff must point to an independent money-mandating source of law.
    
    Id. at 400
    .
    In the case of a pro se plaintiff, pleadings are generally held to "less stringent
    standards than formal pleadings drafted by lawyers." Estelle v. Gamble,
    429 U.S. 97
    , 106
    (1976). However, a pro se plaintiff still bears the burden of demonstrating the court's
    subject matter jurisdiction over the claim. See Matthews v. Uniled States, 
    750 F.3d 1320
    ,
    1322 (Fed. Cir. 2014) (citation omitted); Mora v. United States, I l8 Fed. Cl. 713,715
    (2014) (citation omitted).
    DISCUSSION
    This court lacks subject matter jurisdiction over the plaintiff s claims. Ms. Herbert
    has failed to demonstrate that this court possesses jurisdiction over her claims because
    she is not seeking monetary relief. Further, because the plaintiff has previously raised
    nearly identical claims, they are baned by the doctrine of res judicata. See, e.g., Herbert,
    
    2014 WL 3686133
    , at *l (dismissing claims for lack of subject matter jurisdiction).
    The court does not possess jurisdiction over Ms. Herbert's due process claims.
    The Due Process Clause of the Fifth Amendment to the United States Constitution is not
    money-mandating. See, e.g., James v. Caldera, 
    159 F.3d 573
    , 581 (Fed. Cir. 1999) ("Ult
    is well established that the Court of Federal Claims lacks jurisdiction over [Due Process
    Clause claims] because [the Due Process Clause] . . . is [not] a money-mandating
    provision."). Since the Due Process clause it is not a money-mandating provision, the
    Tucker Act does not provide this court with jurisdiction over such claims.
    As this court discussed in Herbert,,
    2014 WL 3686133
    , at *3, Ms. Herbert's taking
    claims fail as a matter of law. While Ms. Herbert alleges that a taking occurred when she
    was denied entry and a hearing in the Supreme Court, "[t]he right of entry to the Supreme
    Court and the right to a hearing are not private property, and therefore Ms. Herbert has
    failed to allege that private property has been taken for public use." 1d Further, as the
    government notes in its brief, Ms. Herbert's taking claims fail because she does not
    concede the validity of the govemment's actions. Def.'s Mot. Dismiss. at 6. A "claimant
    must concede the validity of the govemment action which is the basis of the taking claim
    to bring suit under the Tucker   Act;'   Tabb Lakes, Ltd. v. United States,   l0 F.3d '796,802
    (Fed. Cir. 1993).
    The court notes that the Court of Appeals for the Federal Circuit held that the
    Court of Federal Claims lacks jurisdiction over claims virtually identical to Ms.
    Herbert's. See Ramirez v. United States,
    239 F. App'x 581
    , 582 (Fed. Cir. 2007) ("[W]e
    interpret the complaint to allege that the state and federal courts have conspired to
    deprive [plaintiffl and all other women of rights under the Due Process and Equal
    Protection Clauses of the Fifth and Fourteenth Amendments to the United States
    Constitution. She argues that, although she has been litigating various civil and criminal
    matters in various courts for the past 26 years, she has yet to receive a fair hearing
    because she has always proceeded pro se."). In that case, the Federal Circuit noted that
    this court "cannot grant equitable relief such as an injunction or specific performance,"
    except in specific circumstances that were no1 present. Id. at 582-83. Under Ramirez,the
    court lacks jurisdiction to grant the injunctive relief Ms. Herbert seeks. 1d
    Regarding Ms. Herbert's allegations oftreason against John Coveny, this court
    does not possess jurisdiction over criminal matters or individual defendants. Birdsall-
    Perry v. Uniled States, No. 05-722C, 
    2005 WL 6115725
    , at *2 (Fed. Cl. Sept. 30, 2005)
    ("[Tlhis court does not have criminal jurisdiction.").
    Additionally, in the Court of Federal Claims, the principle of res judicata may
    apply to questions ofjurisdiction. Citizens Elecs. Co., Ltd. v. OSMM GnBH,
    225 F. App'x 890
    , 893 (Fed. Cir. 2007). Although a dismissal for lack of subject matter
    jurisdiction does not act as an adjudication on the merits, it retains "some preclusive
    effect" if the plaintiff fails to cure the jurisdictional problems. Lea v. United States, 
    126 Fed. Cl. 203
    , 213 (20 l6). ""If [a] second-filed claim presents the same jurisdictional
    issue as raised in the first suit, the doctrine of res judicata bars the second claim," unless
    "the second-filed claim contains new information which cures the jurisdictional defect
    fatal to the first-filed suit."" 1d (quoting Goad v. United States,
    46 Fed. Cl. 395
    , 398
    (2000).
    Here, Ms. Herbert's claims and prayers for relief are identical to those asserted
    and dismissed in Herbert,2O14 WL 3686133, at *1. However, Ms. Herbert has added no
    new information to her present complaint that would cure her jurisdictional shortcomings.
    In fact, her first-filed complaint sought $2 billion in damages while her second-filed
    complaint entirely disavows monetary relief, thus the present action is even farther afield
    from this court's jurisdiction than the first. See Herbert.,
    2014 WL 3686133
    , at *3;
    Compl. at 41. Therefore, the doctrine of   res   judicata acts   as a bar against   Ms. Herbert's
    claims.
    For the reasons stated above, Ms. Herbert's complaint must be DISMISSED and
    her motion for leave to filre inforna pauperis is DENIED AS MOOT. Furthermore, the
    clerk is directed to accept no future complaints from the plaintiffabsent an order from the
    ChiefJudge ofthis court approving the filing.
    IT IS SO ORDERED.
    

Document Info

Docket Number: 16-237

Filed Date: 7/29/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021