Zhuckkahosee v. United States ( 2016 )

FILED
No. l6-360
Filed: November l 5, 20'l 6
t ++ *********** :r :r * * * r. * :r * * * * * * * * * * :r :r ,r ,r ir ir * * 2g u.s.c. $ l4g1 (Tucker Act
JACOBJ.ZHUCKKAHOSEE, i
*
rr".'.3:ifllfilamagesror
.* z'..r.3:'u';:ff?;""i'fi)igainstthe
Plaintiff, pro se, united States for Uniust
+_
" I ,r , , !;lt1il)i.un,r.. to c*"
Want of Jurisdiction);
Rules of the United States Court of
* Federal Claims f'RCFC")
. l2(b)(l) (Subject Matter
STATES' *
THE UNITED
* RcFc#effl3:]:"rAmended
Defendant. *
Pleading).
..
+1.**i.****:|,t,t*:*1.**++t,B++****,t ************
Jacob J. Zhuckkahosee, pro se, Plaintiff.
Albert Salvatore Iarossi, United States Department of Justice, Acting Assistant Attorney
General, Washington, D.C., Counsel for the Government.
MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
I. RELEVA}ITFACTUALBACKGROUND.'
Jacob Zhuckkahosee is a memberofthe Menominee Indian Tribe. On January 10,2012,
the Menominee Tribal Court convicted Mr. Zhuckkahosee of one count of First Degree Sexual
Assault Of A Child and one count of Battery. Pl. Ex. B. That same day, Mr. Zhuckkahosee was
sentenced to: (l) twelve months ofTribal Jail with six months stayed; (2) payment ofa $150 fine;
and (3) eighteen months of probation. Pl. Ex. A. Pursuant to the Menominee Sex Offender
Registration and Notification Ordinance, Mr. Zhuckkahosee was required to register and remain
I The relevant facts discussed
herein were derived from the June 22,2016 Amended
Complaint ("Am. Compl. l-3"), and the attached exhibits ("P1. Ex. A-D"). The court has labeled
the January 31,2012 Menominee Tribal Court Sentencing Order as Exhibit A; the September 16,
2013 Ami R. Nacotee Criminal Complaint as Exhibit B; and the July 19,2013 Statement of Gerald
Thorpe, Sex Offender Registry Coordinator, as Exhibit C.
USPS TRACKING # 9114 9014 9645 0594 5522 45
& CUSTOMER NUMBER For Tracking or inquiries go to USPS.COM
or call 1-800-222-1811
registered for the duration of his life, as asex offender with the Tribal Sex Offender Registry. Pl.
Ex. B.
On May 30, 2012,lhe Menominee Sex Offender Registry Coordinator and the Wisconsrn
Sex Offender Registry Specialist visited Mr. Zhuckkahosee at the Menominee Tribal Jail. pl.
Ex. C. Mr. Zhuckkahosee was informed of his obligations as a registered sex offender and
provided with acknowledgment forms. Pl. Ex. C. Mr. Zhuckkahosee signed the forms and
subsequently was released from the Menominee Tribal Jail. Pl. Ex. C.
On July 12, 2012, Mr. Zhuckkahosee reported to the Menominee Tribal Sex Offender
Registry Office that he lived at N276 Max Martin Road, Keshena, Wisconsin. pl. Ex. C. On April
13, 2013 and June 3, 2013, the Registry Coordinator mailed a letter to N276 Max Martin Road in
order to verify that Mr. Zhuckkahosee lived at that address. Pt. Ex. C.
On July 16,2013, the police responded to a fire at N276 Max Martin Road. pl. Ex. C. At
the scene, officers questioned a resident of N276 Max Martin Road who informed them that Mr.
Zhuckkahosee did not live there. Pl. Ex. C.
On July 17, 2013, the police received a report that Mr. Zhuckkahosee inappropriately
touched a four-year old girl. Pl. Ex. c. In response, the police visited Mr. Zhuckkahosee's listed
residence to conduct a Sex offender Registry Residential verification. pl. Ex. c,Upon amival,
they discovered that Mr. Zhuckkahosee had not lived at N276 Max Martin Road since Julv 4.2013.
Pl. Ex. C.
On July | 8, 2013, the police determined that Mr. Zhuckkahosee was living in the woods
offof Kittecon Road on the Menominee Reservation. Pl. Ex. c. Later that dav. Mr. Zhuckkahosee
was located and arrested. Pl. Ex. C.
On September 16,2013, the Menominee Tribal Prosecutor filed a Criminal Comolaint in
Tribal Court alleging that Mr. Zhuckkahosee violated the Menominee Sex Offender Resistration
and Notification Ordinance. Pl. Ex. B.
Some time later, the United States indicted Mr. Zhuckkahosee for sexual Abuse of A
Person under The Age l.
of Sixteen. Am. compl. at Mr. Zhuckkahosee pled guilty before the
United States District Court for the Eastern District of Wisconsin and was sentenced to 135 months
of imprisonment. Am. compl. at L The Menominee Tribe subsequently transferred Mr.
Zhuckkahosee to the Federal Correctional Institute in Mariana, Florida, where he is currentlv
serving his prison term.
II. PROCEDURALHISTORY.
On March 18,2016, Mr. Jacob Zhuckkahosee (,,plaintiff ') filed a Complaint (.,Compl.")
in the united states court of Federal claims alleging that wisconsin, Menominee Tribe and
federal officials violated his statutory and constitutional rights. Plaintiff also filed a Motion For
Leave To Proceed 1n Forma Pauperis. on April 8, 2016, the court granted the March lg,2016
Motion.
On May 19, 2016, the Govemment filed a Motion to Dismiss, pursuant to Rule l2(b)( I ) of
the United States Court of Federal Claims ("RCFC"), arguing that the court did not have
jurisdiction to adjudicate the claims alleged in the March 18, 2016 complaint, because Plaintiff
did not name the United States as a defendant.
On June 22, 2016, Plaintiff filed a Motion To Amend and an Amended Complaint. The
June 22, 201 6 Amended Complaint named the United States as the defendant and set forth two
claims. The first claim alleged that the Menominee lndian Tribe improperly transferred Plaintiff
into federal custody and that the United States wrongfully imprisoned Plaintiff in violation ofthe
Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, as well as the
Wolf River Treaty of 1854.2 The second claim alleged that the United States improperly certified
Plaintiff for civil commitment as a sexually dangerous person under the Adam walsh child
Protection And Safety Act Of 2006,42 U.S.C. g$ 16901-16962 (,,Adam Walsh Act',). On June
23,2016,the court granted Plaintiffs June22,2016 Motion To Amend.
On July 7,2016, the Govemment filed a Motion To Dismiss PlaintifPs Amended
Complaint ("Gov. Mot."), pursuant to RCFC I 2(bxl ), arguing that the court did not have
jurisdiction over either claim alleged in the June 22,2016 Amended Complaint.
On July 25, 2016, Plaintiff filed a Response to the July 7, 2016 Motion. On August 4,
2016, the Government filed a Reply.
On September 20, 2016, Plaintiff filed a Motion For Extension Of Time To File ISur] Reply
to the Govemment's August 4, 2016 Reply and a Motion For Leave To File A Second Amended
Complaint.
On September 26, 2016, the Government filed a Response to the September 20, 2016
Motion For Leave To File A Second Amended complaint, arguing that the court should deny the
motion, because amendment would be futile.
ilI. DISCUSSION.
A, Jurisdiction.
The United States court ofFederal claims hasjurisdiction under the Tucker AcL 2g U.S.c.
$ 1491, "to render judgment upon any claim against the United States founded either upon tre
constitution, or any Act of congress or any regulation of an executive department, o. upon uny
express or implied contract with the united States, or for liquidated or unliquidated damages in
tort." u.s.c. ,,ajurisdictional
cases not sounding in 28 $ lagl(a)(l). The Tucker Act, however, is
slatute; 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
claimsl whenever the substantive right exists." united stqtes v. Testan,424ll.S.3g2,3gg (1g76).
To pursue a substantive right under the Tucker Act, a plaintiff must identifv and oleao an
independent contractual relationship, constitutional provision, federal statute ani/o. executive
' The full text of the Wolf River Treaty of 1854 is available at: htto://digital.librarv.
okstate.edu/kapnler/vol2ltreaties/men0626.htm.
agency regufation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d l09l , 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, ll72 (Fed. Cir. 2005) (en banc) (*The
TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidentifyaseparate
source of substantive 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 ofthe 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 of the evidence.").
B. Standard For Motion To Dismiss Under RCFC l2(bxl).
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 I 3 10, I 3 I 3 (Fed. Cir. 1999); see c/so RCFC l2(b)( I ) (,.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: (l ) lack of subject-matter jurisdiction[.],').
When considering whetler to dismiss an action for lack of subject matter jurisdiction, "a court
must accept as true all undisputed facts asserted in the plaintifFs complaint and draw all reasonable
inferences in favor of the plaintiff." Trusted Integration, Inc. v. [Jnited states, 659 F.3d I 159,
I 163 (Fed. Cir. 201l).
C, Standard Of Review For llo ,9e 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 stringent standards than formal
pleadings drafted by lawyers"). The court traditionally examines the record "to see if
[a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. united states,4lz F.2d l2g5,
1292 (ct. cl. 1969). Nevertheless, while the court may excuse ambiguiti es in a pro se plaintiff s
complaint, the court "does not excuse [a complaint's] failures." Henke v. united states,60F.3d
795,799 (Fed. Cir. 1995).
D. The Government's July 7, 2016 Motion To Dismiss The Jun e 22,2016
Amended Complaint, Pursuant To RCFC f 2OXl).
1, The Government's Argument.
The Government argues that the United States Court of Federal Claims does not have
jurisdiction to adjudicate any of the claims alleged in the June 22,2016 Amended complaint. Gov.
Mot. at 4. The Government reads the June 22,2016 Amended complaint to identify six possible
claims: (l) wrongful conviction; (2) unjust imprisonment; (3) violation ofdue process rigtrts under
the Fifth and Fourteenth Amendments; (4) violation of the Sixth and Eighth Amindments;
(5) improper custody of a member of the Menominee Indian Tribe in violation of the Fifth
Amendment's Takings Clause; and (6) improper application of the "contract provisions" of the
Adam Walsh Act.
First, the Due Process Clause ofthe Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of action under the Tucker Act. Gov. Mot.
at 6. Similarly, the Sixth and Eighth Amendments do not mandate money damages. Gov. Mot.
at 6.
Although the court has jurisdiction to adjudicate claims alleging a violation of the Fifth
Amendment's Takings clause, a valid takings claim must allege that the Govemment lawfully
seized private property for public use, without just compensation. Cov. Mot. at 6 (citing Ruth
Energt, Inc. v. United States,247 F.3d 1355, 1365 (Fed. Cir.200l)). Because the June 22,2016
Amended Complaint alleged that the Government's actions were wrongful and illegal, the takings
claim does not satisfy the pleading requirements to establish jurisdiction under the Takings Clause.
Gov. Mot. at 6.
To the extent that the June 22,2016 Amended complaint alleges that the united states
District Court for the Eastem District of Wisconsin wrongfully convicted Plaintiff, that clarm
would require the court to review the merits ofa federal district court decision. Gov. Mot. at 5.
But, the United States Court ofFederal Claims "does not have jurisdiction to review the merits of
a decision rendered by a federal district court." Gov. Mot. at 5 (quoting ,s/,il necock Indian Nation
v. United States,782 F.3d 1345, 1352 (Fed. Cir. 2015)).
Moreover, the court does not have jurisdiction to adjudicate claims for compensation due
to unjust imprisonment, unless a plaintiffs "conviction has been reversed or set aside on the
ground that he is not guilty ofthe offense of which he was convicted, or . . . he has been pardoned
upon the stated ground of innocence and unjust conviction." Gov. Mot. atit see a/so 2g U.s.c.
$ 2513(a). Plaintiffs conviction, however, has not been reversed or pardoned. Gov. Mot. at 7.
Finally, although the court has jurisdiction to adjudicate breach of contract claims against
the United States, the June 22,2016 Amended Complaint does not allege a contractual relationship
between Plaintiffand the united states, instead the "contract provisions" of the Adam walsh Act
is cited. Gov. Mot. at 7.
2, Plaintil?sResponse.
Plaintiff respond s that, under Moden v. [Jnited states,404 F.3d 1335 (Fed. cir.2005), the
court.has jurisdiction to adjudicate a plaintiffs claim alleging a violation of a money-mandating
constitutional provision, statute, or regulation unless the claim is "so insubstantial, implausible,
foreclosed by prior [case law], or otherwise completely devoid of merit as not to involve a federal
controversy." Id. at 1341. The June 22,2016 Amended complaint's Fifth Amendment takings
claim alleges a violation of a money-mandating constitutional provision and is not completely
devoid of merit. Therefore, the court at least hasjurisdiction to adjudicate that claim.
E. The Court's Resolution.
l. The Court Does Not Have Jurisdiction Over Any Claims Alleged In
The June 22, 2016 Amended Complaint.
The June 22,2016 Amended Complaint alleges that the Government violated Plaintif|s
Fifth, Sixth, Eighth and Fourteenth Amendment rights, as well as the wolf River Treaty of 1854.
Am. compl. at l-2. Plaintiff does not specify how the Govemment violated the enumerated
constitutional provisions, except by alleging that the Menominee Tribal court wrongfully
transferred Plaintiff into the Government's custody and that the United States District Court for
the Eastem District of wisconsin wrongfully convicted and imprisoned him. Am.compl.atl-2.
The June 22,2016 Amended Complaint also alleges that the United States District Court for the
Eastem District of Wisconsin wrongfully applied the Adam Walsh Act. Am. Compl. at 2.
As the Government argued, the court does not have jurisdiction to adjudicate any of the
constitutional claims alleged in the June 22,2016 Amended complaint. "The law is well settled
that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of action under the Tucker Act." see smith v.
United states,709 F.3d I I 14, I I l6 (Fed. cir. 2013). Likewise, the courr does not have jurisdiction
to adjudicate claims based on the Sixth and Eighth Amendments, because neither is money-
mandating. see Milas v. united states,42 Fed. c1.704,710 (1999) ("[T]he . . . Sixth Amendment[]
[is] not money mandating and, consequently, cannot combine with the Tucker Act to provide the
court jurisdiction;'), aff'd per curiam, 217 F.3d 854 (Fed. Cir. 1999); see also Trafny v. United
states, 503 F.3d 1339, 1340 (Fed. cir. 2007) (quoting Edelmann v. United states, 76 Fed. cl. 376,
383 (2007) ("The Court of Federal Claims does not have jurisdiction over claims arising under
the Eighth Amendment, as Iit] 'is not a money-mandating provision."')
To the extent that the June 22, 2016 Amended Complaint alleges a violation ofthe Takings
Clause, the court does not have jurisdiction to adjudicate that claim. "ln determining whether the
[court] has jurisdiction, [the court must determine] that the [relevant] claim is fognded upon a
money-mandating source and [that] the plaintiffhas made a nonfrivolous allegation that it is within
the class of plaintiffs entitled to recover under the money-mandating source." Jan's Helicopter
Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (emphasis added). Althougtr the
Takings clause is money-mandating, "[a] claimant under the Takings clause must show that the
government, by some specific action, took a private property interest for a public use without just
compensation." Adams v. united states,3gl F .3d l2l2,l2l 8 (Fed. cir. 2004). TheJune22.20l6
Amended Complaint does not allege that the Government interfered with Plaintiff s orivate
property interests. Instead, it claims that the Government violated the Fifth Amendment by
wrongfully convicting and imprisoning plaintiff. Therefore, the June 22,2016 Amended
Complaint fails to make a nonfrivolous allegation that Plaintiff is within the class of claimants
entitled to recover under the Takings Clause. As such, the court does not have iurisdiction to
adjudicate this claim.
The court has jurisdiction to "renderjudgment upon any claim for damages by any person
unjustly convicted ofan offense against the United States and imprisoned." zt u.S.c.-g r+rs.
But, for the court to adjudicate such a claim, the plaintiff must satisfy the requirements orzs u.s.c.
$ 2513. see Grayson v. unitecl states, l4l ct. cl. 866 ( I 958) (explaining that 28 u.s.c g $ 1495
and 2513 must be read together); see also See Chevalier v. United States,329 F. App'x 924, 926
(Fed. Cir.2009). Section 2513, provides that any person suing the Govemment under section 1495
must allege:
[that] [h]is conviction has been reversed or set aside on the ground that he is not
guilty ofthe 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 of innocence and unjust conviction[.]
28 U.S.C. 2513(a)(l ). The June 22,2016 Amended Complaint, however, does not allege that
Plaintiffs conviction was reversed or set aside or that Plaintiff subsequently was found not guilty
or pardoned ofthe relevant offenses. Therefore, the court does not have jurisdiction to adjudicate
Plaintiff s unjust conviction and imprisonment claims.
Finally, the court does not have jurisdiction to adjudicate claims based on either the Adam
walsh Act or the wolf River Treaty of 1854, because neither "can fairly be interpreted as
mandating compensation by the Federal Government," Testan, 424 tJ.S. at 400. The Adam walsh
Act establishes a comprehensive national system for the registration of sex offenders. ,see 42
U.S.C. $ 16901. But, none of its provisions mandate the payment of money to registered sex
offenders' The Wolf River Treaty of 1854 provides that the Menominee Tribe will cede tribal
lands to the Government in exchange for a temporary settlement on the wolf River, sponsorship
of various public welfare programs and payment of $242,686. The Treaty does not contain any
language that can fairly be interpreted as mandating compensation by the Govemment to
individual members of the Menominee Tribe. Moreover, the court does not have iurisdiction to
adjudicate the wolf River Treaty claim under 28 u.s.c. g 1505-providing that "[r]he united
States Court of Federal Claims [has] jurisdiction ofany claim against the United States accruing
. . . in favor of any tribe, band, or other identifiable group of American Indians"-because that
provision does not apply to actions brought by individual members of Indian Tribes and the June
22, 2016 Amended complaint only alleges injuries to plaintiff as an individual . see Fields
v. united states, 423 F.2d 380, 383 (ct. cl. 1970) ("[S]ince the instant case is one broueht bv
individual Indians and not a tribe, band, or identifiable group of Indians . . . defendant is coiecr in
asserting that section 1505 does not apply to the present case.").
2. The June 22, 2016 Amended Complaint Should Not be Transferred
To A United States District Court, pursuant To 2g U.S.C. $ 1631.
Title 28 U.S.C. g l63l provides:
[w]henever a civil action is filed in a court as defined in section 610 of this title or
an appeal, including a petition for review of administrative action, is noticed for or
filed with such a court and that court finds that there is a want ofjurisdiction, the
court shall, if it is in the interest ofjustice, transfer such action or appeal to any
other such court in which the action or appeal could have been broughfat the timi
it was filed or noticed, and the action or appeal shall proceed as if it had been filed
in or noticed for the court to which it is transfered on the date upon which it was
actually filed in or noticed for the court from which it is transfened.
28 U.S.C. $ 1631.
The United States Court of Federal Claims is authorized to transfer the June 22,2016
Amended Complaint, but only when the conditions of section 163l are met. ,See Tex. peanut
Farmers v. United States,409 F.3d 1370, 1375 (Fed. Cir. 2005) ("tTlhe trial courr could have
ordered transfer without being asked to do so by either party[.]"). The decision to transfer rests
within the discretion ofthe transferor c ourt. see In re vistaprint Ltd.,628 F.3d 1342, 1344 (Fed.
Cir. 2010) (recognizing that "[the] trial court has broad discretion in transfer decisions"); see also
Christianson v. Colt Industies Operating Corp.,486 U.S. 800, Sl6-17 (l9SS) (holding that a
transfer order should be affirmed unless "clearly erroneous"). In order for a case to be transferred
under section 163 I , the court must determine that: ( I ) the transferring court lacks subject matter
jurisdiction; (2) the case could have been brought in the transferee court at the time the case was
filed; and (3) transfer is in the interest ofjustice. see Tex. peanut Farmers, 409 F.3d at 1374
(holding that transfer is appropriate under section 163 I when the court finds that there is a want of
jurisdiction, the action could have timely been brought in another court, and transfer is in the
interest ofjustice).
In this case, the first requirement of section I 631 is satisfied, because the court does not
have subject matter jurisdiction over the claims alleged in the June 22, 2016 Amended Complaint.
But, transfer would not be in the interest ofjustice, because th e lune 22,2016 Amended Complaint
also fails to state a claim upon which reliefcan be granted. See Faullorcr v. (Jnited States,45Fed.
cI.54,56(1999)("If...transferwould...befutile...thedecidingcourtmaydeclinetotransfer
the case and dismiss it;'); see also Bunch v. Llnited states, 7g F.3d 605 (Fed. cir. 1996)
("[T]ransfer is likely to be futile, and thus not 'in the interest ofjustice' as
[section] 163l
requires.") (unpublished). The June 22,2016 Amended complaint alliges no facts that altow the
court to draw a reasonable inference that the defendant is liable for the misconduct alleeed. See
Ashcroft v. Iqbal,556 u.s. 662 (2009). It contains only "the-defendant-un lawfully-ha-rmed-me
accusation[s]." Id. at 678. Therefore, the court has determined that the June 22,2016 Amended
Complaint would not survive a motion to dismiss for failure to state a claim so that transfer, under
section 163 l, would not be in the interest ofjustice.
3, Plaintiffs September 20,2016 Motion For Leave To File A Second
Amended Complaint Is Denied.
_ Under RCFC l5(a), a party may amend its pleadings once as a matter of course. ,,ln all
other cases [however] a party may amend its preading only with the opposing party,s written
consent or the court's leave. The court should freely give leave
[to amend] when justice so
requires." RCFC l5(a)(2). But, the court may exercise its discrettn to deny leave lt it
nna,
evidence of" undue delay, bad faith or dilatory motive on the part ofthe movant, repeated
failure
to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party
by
virtue of allowance of the amendment, [or] futility of amendment." Foman v.'barxlilt
u.s.
t78, t82 0962\.
"Futifity ofthe proposed amendment is an adequate reason to deny leav eto amend." Cultor
Corp. v. A.E. Stsley Mfg. Co.,224 F.3d 1328, 1333 (Fed. Cir. 2000). "When a parry faces the
possibility of being denied leave to amend on the ground of futility, that party must . . . proffer
sufficient facts supporting the amended pleading that the claim could survive a dispositive pretrial
motion." Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V.,464 F.3d 1339,
1354-55 (Fed. Cir. 2006). Plaintiff filed a Second Amended Complaint on September 20, 2016,
but it does not allege any new claims; instead it simply reiterates allegations raised in the June 22,
2016 Amended Complaint and lists a number of federal statutes, without any explanation of how
they apply to this case.
For the reasons discussed herein, the claims alleged in the September 20, 2016 Second
Amended Complaint would not survive a motion to dismiss, pursuant to RCFC l2(bxl).
Therefore, the court has determined that amendment would be futile and denies the Plaintiffs
September 20, 2016 Motion.
IV. CONCLUSION.
For the reasons discussed herein, the Govemment's July 7,2016 Motion to Dismiss is
granted. ,see RcFc l2(bX1). The clerk is directed to dismiss the March 18,2016 complaint.
IT IS SO ORDERED.
G. BRADEN.
Jadge