Gilliard v. United States ( 2019 )

In the Guted States Court of Federal Clanns
Nos. 19-239T; 19-290T
Filed: October 28, 2019
kok eR FR RR RR RR Re e RR OR RK
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WILLIAM LARRY GILLIARD *
and SAMANTHA JEWEL GILLIARD, r
+ ati * Motion to Dismiss; Pro Se Plaintiffs;
Plaintiffs, * Subject-Matter Jurisdiction; Due
Vv. * Process; Tort Claims; Criminal
* Jurisdiction; Breach of Contract; Civil
UNITED STATES, * Rights.
Defendant. :
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kt FR kK FR EK KR KR ROE BR K RH
William Larry Gilliard and Samantha Jewel Gilliard, pro se, Teilico Plains, TN.
Margaret E. Sheer, Attorney of Record, Court of Federal Claims Section, Tax
Division, United States Department of Justice, Washington, D.C., for defendant. With her
were Richard E. Zuckerman, Principal Deputy Assistant Attorney General, David I.
Pincus, Chief, Court of Federal Claims Section, G. Robson Stewart, Assistant Chief,
Court of Federal Claims Section.
OPINION
HORN, J.
FINDINGS OF FACT
In February of 2019, William Larry Gilliard and Samantha Jewel Gilliard separately
filed complaints in the United States Court of Federal Claims, seeking relief in the amount
of $1,726,419.93 and $7,126,419.93, respectively. Plaintiffs attached exhibits to their
complaints that included, among other items, several Forms 668(Y)({c) Notice of Federal
Tax Lien, which show federal tax liens on plaintiffs’ property for unpaid tax liabilities for
the tax years 1997, 1998, 2000, 2002-2005, and 2008. Allegations raised in plaintiffs’
compiaints filed in this court, also relate to a previous case plaintiffs filed in the United
States Tax Court in 2017. Specifically, plaintiffs jointly filed a petition assigned Docket No.
26121-17 in the United States Tax Court, alleging that they had not received notices of
deficiency or notices of determination for the tax years “1965-FORWARD.” (capitalization
in original). In response, the government filed a motion to dismiss in the Tax Court, for
7016 2290 OOOH 5183 450?
lack of jurisdiction on February 27, 2018. The government in its motion to dismiss
asserted
[p]etitioners state in their petition that they have not received either notice(s)
of deficiency or notice(s) of determination concerning collection action for
tax years “1965-FORWARD.” On the line to provide the date(s) and the IRS
office(s) from which the notice(s) were issued to petitioners, the petition
states "N/A not received.”
(capitalization in original). The government in its motion to dismiss in the Tax Court action
further asserted that in a deficiency case, the Tax Court's jurisdiction depends on the
issuance “of a valid notice of deficiency . . . [and] a valid notice of determination under
IL.R.C. §§ 6320 or 6330.” The Tax Court did not reach the merits of the case, and on March
20, 2018, the Tax Court dismissed the case for lack of jurisdiction, noting that the Gilliards
had filed a “Notice of No Objection” to the government's motion to dismiss in the Tax
Court.
Thereafter, as noted above, plaintiffs William Larry Gilliard and Samantha Jewel
Gilliard, separately filed in this court, on February 4, 2019, and February 25, 2019,
respectively, complaints. Pro se plaintiff William Gilliard, filed a complaint in this court,
Case No. 19-239T, which was assigned to the undersigned. Plaintiff attached twenty-one
exhibits to his complaint, including the Order of Dismissal for Lack of Jurisdiction in which
Chief Judge Marvel of the United States Tax Court ordered that the Commissioner of
Internal Revenue’s Motion To Dismiss for Lack of Jurisdiction be granted and the case
jointly brought by petitioners William Larry Gilliard and Samantha Jewel Gilliard be
dismissed. Other exhibits attached to William Larry Gilliard’s complaint in this court
include Notices of Federal Tax Liens and a mortgage referred to as a “Security
Instrument.” Plaintiff William Larry Gilliard filed the complaint against defendant, the
United States, alleging that defendant’s “contractor has damaged me in the sum money
amount of $1,726,419.93 by force Plaintiff to: file sum money amount returns; place liens
on ‘all property and rights to property,’ and reports to credit agencies ‘Public Record’
without jurisdiction.”' Plaintiff William Larry Gilliard did not refer to any specific tax years
in his complaint in this court. Plaintiff William Larry Gilliard sought a “judgment against
The United States” in the amount of $1,726,419.93, “plus return the property.” Moreover,
plaintiff William Larry Gilliard sought to invoke this court's jurisdiction on the grounds that:
“The United States contractor” forced plaintiff to “file: sum money amount returns; and
has place liens on ‘all property and rights to property’; and reports those liens to credit
agencies ‘Public Record’ without jurisdiction.” In his complaint, plaintiff William Larry
Gilliard tried to support his invocation of this court’s jurisdiction by referencing the Order
of Dismissal by the United States Tax Court, which plaintiff William Larry Gilliard also
attached as an exhibit to his complaint in this court, Case No. 19-239T.
On February 25, 2019, pro se plaintiff Samantha Jewel Gilliard, filed her complaint
in this court, Case No. 19-290T, which was originally assigned to Judge Thomas Wheeler
‘When quoted, in plaintiffs’ submissions, capitalization, choice of words, spelling errors,
grammatical errors, fragments of sentences, emphasis and italics have been included
unchanged in this Opinion.
of this court and reassigned to the undersigned on April 3, 2019. Plaintiff Samantha Jewel
Gilliard’s complaint alleged that the
contractor retained by United States did coerce Plaintiff to file documents
when the U.S. Tax Court records clearly evidence that Plaintiff had no duty
nor obligation; Acts and Actions by the contractor did cause unlawful
extraction of payment and compliance by and through the placing of liens
on “all property and rights to property” of which are “Public Record” and
reported to the various credit agencies and titled “Public Record” of which
is libel and slander, which is extortion and racketeering.
This libel and slander did directly lead to inability to obtain funding or loans
by Plaintiff, thus directly contributing to foreclosure of which would be
tortious interference with contractual obligations and deprivation of tangible
and intangible property and equity.
In her complaint, plaintiff Samantha Jewel Gilliard sought a “judgment against The
United States” in the amount of “$7,126,419.93 plus return the property.” Further, plaintiff
Samantha Jewel Gilliard sought to invoke this court's jurisdiction on the grounds that:
The United States contractor have damaged me in the sum money amount
of $7,126,419.93 by force Plaintiff to: file sum money amount returns; place
liens on “all property and rights to property;” and reports to credit agencies
“Public Record” without jurisdiction. . . .
The United States contractor is in contempt of court for failure to return the
un-jurisdictional gain.
On March 29, 2019, plaintiffs each filed separate motions for leave to amend their
respective complaints. On April 3, 2019, the court issued Orders in the above-captioned
cases asking if any party had an objection to consolidating the above-captioned cases.
The parties did not object to consolidation. On June 3, 2019, the court consolidated the
above-captioned cases pursuant to Rule 42(a) of the Rules of the United States Court of
Federal Claims (RCFC) (2018). On June 3, 2019, the court ordered the plaintiffs to file
their proposed amended complaints on or before June 14, 2019, pursuant to their request;
and the defendant to respond to the amended complaints on or before July 12, 2019.
On June 14, 2019, plaintiffs together filed a twelve-page amended complaint.
Plaintiffs only filed the amended complaint in Case No. 19-239T, but listed both plaintiffs’
names, and both Case Nos. 19-239T and 19-290T on the amended complaint filed in
Case No. 19-239T. In the amended complaint, plaintiffs state this court has jurisdiction
on the grounds that “Defendant moved against Plaintiffs without jurisdiction; therefore this
is not a tort claim but is a jurisdictional claim.” Under the “Jurisdiction” heading of the
amended complaint, plaintiffs state jurisdiction is proper pursuant to “28 U.S.C., §§ 1491-
1509 and 42 U.S.C., § 1983.” Plaintiffs specifically allege in their amended complaint that
their claim is “not a tax matter” but “an over reach of Defendants jurisdictional authority.”
In the amended complaint, plaintiffs further contend that the “Internal Revenue Service
Commissioner stated the Defendant did not have Jurisdiction because they violated their
own policies and procedures and the United States Tax Court agreed.” Plaintiffs assert in
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the amended complaint that the issue before this court is a claim for damages for
defendant's “violation of Plaintiffs’ due process by acting outside of Defendant's
jurisdiction as Defendant has admitted.” To try to support their assertions, plaintiffs
reference their exhibits, which appear also to have been filed in the earlier United States
Tax Court case assigned Docket No. 26121-17.
Plaintiffs further allege in their amended complaint that:
Agents, employees, officers or officials actually working for, or claiming to
work for, Defendant did injure Plaintiffs in the sum certain amount of
$29,670,081.86 by issuing bogus, fictitious obligations or counterfeit
securities for many years without any lawful authority or power (jurisdiction)
to do so... in violation of 18 U.S.C. 514.
To try to support this allegation plaintiffs reference Exhibits “A” through “LL,” attached to
their amended complaint. These exhibits included, among other items, several Forms
668(Y)(c) Notice of Federal Tax Lien, which show federal tax liens on plaintiffs’ property
for unpaid tax liabilities for the tax years 1997, 1998, 2000, 2002—2005, and 2008.
Plaintiffs aiso note in their amended complaint that they were “adversely affected
by the governmental propaganda campaign forcing everyone to consider all ‘income’
‘taxable income’ and the coercion to, in the guise of paying a tax, get everyone to actually
offer a ‘gift’ or ‘beques? (31 U.S.C. § 321(d)), to the IRS every year as a ‘contribution’
styled an ‘income tax payment.” Plaintiffs further state that all of their “federal income tax
payments’ and the bogus ‘Notice(s) of Federal Tax Lien(s)’ were based on constructive
fraud bordering on extortion, theft or robbery primarily perpetrated and perpetuated by
the IRS... .”
Under the heading “Statement of the Claim” in the amended complaint, plaintiffs
state they are
morally and spiritually offended that IRS did trespass upon and deprive
the right to Freedom of contract secured by U.S. Const., art. 1, § 10 (See
also 18 U.S.C., § § 241, 242), for the sole purpose of passing counterfeit
securities 18 U.S.C., § 472 with intent to deprive Plaintiffs of the tangible
and intangible rights to property and equity using mail and wire
transfers in violation of 18 U.S.C., § § 1341, 1343.
Plaintiffs further claim that the “United States Court Tax Judgment, Docket Number
26121-17, is predicated directly on conclusive evidence obtained from the IRS that does
prove IRS does lack authority for utterance of liens into county records.” Plaintiffs also
allege that the IRS violated several provisions under the federal criminal code, Title 18 of
the United States Code. Under the heading “Money-Mandating Provisions” in the
amended complaint, plaintiffs state that Article 1, Section 10 of the United States
Constitution prohibits government from “infringing on the obligations of contracts.”
Plaintiffs try to support this statement by citing 42 U.S.C. § 1981 titled “Equal rights under
the law,” and enacted by the Civil Rights Act of 1991.
On July 12, 2019, the defendant moved to dismiss plaintiffs’ amended complaint
for lack of subject matter jurisdiction pursuant to RCFC 12(b}(1) (2019). Defendant
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asserts this court lacks jurisdiction over plaintiffs’ requested redress of the IRS's
enforcement of “unlawful liens for federal income tax debt,” violation of plaintiffs’ due
process, issuance of fictitious or fraudulent securities, constructive fraud, mail and wire
fraud, violations of the Civil Rights Act, and tortious interference with contract. Defendant
notes in its motion to dismiss, that IRS records reflect that the Gilliards have not filed
administrative claims for refund for tax years “1997, [1]998, 2000, 2002 through 2005, or
2008.” Defendant asserts public records also reflect that the plaintiffs’ federal tax liens for
these years were removed, with the exception of for the 2008 tax year, and that plaintiffs’
tax liabilities have been cleared to zero for tax years prior to 2006. Defendant states the
reduction in plaintiffs’ tax liabilities are due to the expiration of the IRS’s collections statute
and transfers of overpayments from other tax years. Defendant notes plaintiffs have a
remaining unpaid tax liability for tax year 2008, but plaintiffs have been placed in hardship
status and their tax account has been deemed not collectible since 2011.
Regarding plaintiffs’ claims for damages, defendant argues that plaintiffs’ theories
of recovery based on tort law, criminal statutes, and the Civil Rights Act, each lie outside
this court's jurisdiction. Defendant also argues that to the extent plaintiffs seek damages
resulting from an unauthorized collection action, or the failure to release a lien, jurisdiction
over such claims is reserved exclusively to federal District Courts. Regarding plaintiffs’
claims based on the United States Constitution, defendant argues the Constitution's
Contract Clause “applies only to actions by individual States.” Regarding plaintiffs’ claims
concerning the foreclosure order against “certain Florida property,” defendant argues that
to the extent plaintiffs are challenging a state court decision of the Circuit Court of the
Tenth Judicial Circuit in Hardee County, Florida, this court lacks jurisdiction to hear
plaintiffs’ claim. Defendant also notes, that such an argument is a “collateral attack” on
the validity of a state court’s decision, over which this court lacks jurisdiction for review.
Although plaintiffs’ response to the defendant's motion to dismiss was originally
due on August 12, 2019, on September 3, 2019, the court issued an Order noting that,
as of September 3, 2019, plaintiffs had not responded to defendant's motion to dismiss.
The court ordered plaintiffs to respond to the motion to dismiss on or before September
13, 2019. On September 13, 2019, plaintiffs filed a combined response to defendant's
motion to dismiss. In the response, plaintiffs “deny that they are Agents, Employees,
Officers, Officials, Servants or Volunteers of or for the United States (‘government
personnel’) and demand to be shown any and all evidence that IRS has proving that
Plaintiffs are government personnel.” In their response, plaintiffs further note they “are not
contesting the lawful authority or power of the United States INTERNAL REVENUE
SERVICE (‘IRS’).” Plaintiffs contend, however, that they are “swearing under penalty of
perjury the fact that there is a certain abuse of office occurring upon Plaintiffs by
government personnel of the IRS and the United States Department of Justice (‘DOU’).”
In particular, plaintiffs maintain that:
Certain IRS personnel did create and enforce unlawful liens by falsely
claiming federal income tax debt against Plaintiffs for many years without
any actual lawful authority for no assessment has ever been computed,
signed by any IRS assessment officer, filed with the IRS and properly and
timely served on Plaintiffs for discharge or dispute.
In the response to defendant's motion to dismiss, under the heading “Jurisdiction,”
plaintiffs note that they “approach this Honorable Court in good faith, with clean hands,
in truth, the whole truth, and with nothing but the truth and without any intent to
deceive or mislead.” In the response to defendant’s motion to dismiss, plaintiffs further
state:
This Honorable Court always has jurisdiction to correct injuries, harms,
endangerments and damage to any property caused by the United States
and any and all creations thereof including, but not limited to, any and all
corporations and other ens legis entities, instrumentalities and subsidiaries
and their agents, employees, officers and officials (collectively
“contractors’) that have or are committing ultra vires acts or exercising
authority or power beyond or outside Defendant’s and the Court's lawfully
defined and delegated jurisdictions.
On September 30, 2019, defendant filed a reply in further support of its motion to
dismiss. Defendant reiterated its position that “[a]ll of these claims are founded, once
again, on an assertion that the order dismissing their case in Tax Court for lack of
jurisdiction constitutes proof that the defendant knowingly and unlawfully seized their
property by collecting income taxes.”
DISCUSSION
The court recognizes that plaintiffs are proceeding pro se. When determining
whether a complaint filed by pro se plaintiffs is sufficient to invoke review by a court, pro
se plaintiffs are entitled to a more liberal! construction of the pro se plaintiffs’ pleadings.
See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro
se complaint be held to “less stringent standards than formal pleadings drafted by
lawyers’), reh’g denied, 405 U.S. 948 (1972), see also Erickson v. Pardus, 551 U.S. 89,
94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106
(1976), reh’g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320,
1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff'd, 603
F. App’x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). However, “there is no ‘duty
[on the part] of the trial court .. . to create a claim which [plaintiff] has not spelled out in
his [or her] pleading .. . .” Lengen_v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Ci. 89, 94, aff'd, 443 F. App’x 542 (Fed. Cir. 2011);
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). “While a pro se plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence.” Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Hughes v. Rowe, 449 U.S. at 9; and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002)); see also Golden v. United States,
129 Fed. Cl. 630, 637 (2016); Shelkofsky v. United States, 119 Fed. Ci. 133, 139 (2014)
(‘[Whhile the court may excuse ambiguities in a pro se plaintiff's complaint, the court ‘does
not excuse [a complaint’s] failures.” (quoting Henke v. United States, 60 F.3d 795, 799
(Fed. Cir. 1995))); Harris v, United States, 113 Fed. Cl. 290, 292 (2013) (“Although
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plaintiff's pleadings are held to a less stringent standard, such leniency ‘with respect to
mere formalities does not relieve the burden to meet jurisdictional requirements.” (quoting
Minehan y. United States, 75 Fed. Cl. at 253)).
“Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Moinar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g
en banc denied (Fed. Cir. 2004), cert, denied, 545 U.S. 1127 (2005); see also Int'l Elec.
Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker
Act, 28 U.S.C. § 1491 (2012), grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an 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.
28 U.S.C. § 1491(a)(1) (emphasis added).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. 87, 94 (2007) (“[Wlhen ruling on a defendant’s motion to dismiss, a
judge must accept as true all of the factual allegations contained in the complaint.” (citing
Bell Atl, Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,
4249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required fo accept as
true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009})):
Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.
2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed, Cir. 20114).
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff's claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’'g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2019); Fed. R. Civ. P, 8(a)(1), (2)
(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl, Corp. v. Twombly,
550 U.S. at 555-57, 570). To properly state a claim for relief, “[clonclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.
Chiron Gorp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nexte!
Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d
ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[CJonclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss.”), aff'd, 460
U.S. 325 (1983). “A plaintiff's factual allegations must ‘raise a right to relief above the
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speculative level’ and cross ‘the line from conceivable to plausible.” Three S$ Consulting
v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. at 555), aff'd, 562 F. App’x 964 (Fed. Cir.), reh'g denied (Fed. Cir. 2014). As stated
in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a
complaint suffice if it tenders ‘naked assertion{s}’ devoid of ‘further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Regarding the Tax Court's dismissal of the action filed by the plaintiffs in that court,
discussed above, defendant, in its motion to dismiss, argues:
Given the lack of foundation for plaintiffs’ arguments, and their attempt
to avoid the bounds of tax law by misapplication of jurisdictional
requirements, defendant respectfully submits that plaintiffs here should
be treated as advancing a frivolous position.
Plaintiffs’ assertions in the amended compiaint include a claim that defendant
violated “Plaintiffs’ due process by acting outside of Defendant's jurisdiction as Defendant
has admitted.” To try to support this claim, plaintiffs reference the Tax Court dismissal,
stating, “Defendant moved against Plaintiffs without jurisdiction.” Plaintiffs apparently
misconstrue the Tax Court's dismissal of their petition for lack of jurisdiction as “Defendant
mov{ing] against Plaintiffs without jurisdiction.” Plaintiffs note in the amended complaint
that their claim also is “not a tax matter” but “an over reach of Defendants jurisdictional
authority.”
In the amended complaint, plaintiffs incorrectly refer to the United States Tax
Court's order as the “Commissioner’s Motion to Dismiss for Lack of Jurisdiction” and
plaintiffs contend the “Internal Revenue Service Commissioner stated the Defendant did
not have Jurisdiction because they violated their own policies and procedures and the
United States Tax Court agreed.”
As discussed above, in Docket No. 26121-17, on March 20, 2018, the Tax Court
granted the government's motion to dismiss plaintiffs’ case for lack of jurisdiction, and
dismissed plaintiffs’ case in its entirety. The United States Tax Court Order stated:
On February 27, 2018, respondent [Commissioner of Internal Revenue]
filed a Motion To Dismiss for Lack of Jurisdiction on the ground no notice of
deficiency or notice of determination under 1.R.C. section 6320 or 6330 was
issued to petitioners for taxable year 1965 through 2017 that would permit
petitioners to invoke the Court's Jurisdiction. On March 20, 2018, petitioner
William Larry Gilliard filed a Notice of No Objection in which petitioners
indicate that they have no objection to the granting of respondent's motion
to dismiss.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction,
filed February 27, 2018, is granted and this case is dismissed for lack of
jurisdiction.
(capitalization in original).
Regarding plaintiffs’ allegations that the defendant violated plaintiffs’ due process
rights, this court lacks jurisdiction to adjudicate such due process allegations. The United
States Court of Appeals for the Federal Circuit has held that this court does not possess
jurisdiction to consider claims arising under the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution. See Crocker v. United States,
425 F.3d 1475, 1476 (Fed. Cir. 1997) (concluding that the United States Court of Federal
Claims has no jurisdiction over a due process violation under the Fifth and Fourteenth
Amendments (citing Leblanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995))); see
also Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (“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.” (citing Leblanc v. United States, 50 F.3d at 1028)); In re United States, 463
F.3d 1328, 1335 n.5 (Fed. Cir.) (‘[Bjecause the Due Process is not money-mandating, it
may not provide the basis for jurisdiction under the Tucker Act.”), reh’g and reh’g en banc
denied (Fed. Cir. 2006), cert. denied sub nom. Scholl v. United States, 552 U.S. 940(2007); Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States, 458 F.3d 1327, 1334
(Fed. Cir. 2006); Collins v. United States, 67 F.3d 284, 288 (Fed. Cir.) (‘{T]he due process
clause does not obligate the government to pay money damages.”), reh’g denied (Fed.
Cir. 1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988) (finding that
the Due Process clauses “do not trigger Tucker Act jurisdiction in the courts’); Murray v.
United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment
Due Process clause does not include language mandating the payment of money
damages); Vondrake v. United States, 141 Fed. Cl. 599, 602 (2019) (citing Smith v, United
States, 709 F.3d at 1116); Weir v. United States, 141 Fed. Cl. 169, 177 (2018); Maehr v.
United States, 139 Fed. Cl. 1, 3-4 (2018) (stating that Smith v. United States, 709 F.3d at
4114, “remains controlling law today”), affd, 767 F. App’x 914 (Fed. Cir. 2019), cert.
denied, 2019 WL 4923068 (U.S. Oct. 7, 2019); Zainulabeddin v. United States, 138 Fed.
Cl. 492, 505 (2018) (citing LeBlanc v. United States, 50 F.3d at 1028); Harper v. United
States, 104 Fed. Cl. 287, 291 n.5 (2012); Hampel v. United States, 97 Fed. Cl. at 238,
aff'd, 429 F. App’x 995 (Fed. Cir. 2011), cert. denied, 565 U.S. 1153 (2012). Due process
claims “must be heard in District Court.” Kam-Almaz v. United States, 96 Fed. Ci. 84, 89
(2011) (citing Acadia Tech., Inc. & Global Win Tech., Lid. v. United States, 458 F.3d at
1334), affd, 682 F.3d 1364 (Fed. Cir. 2012).
In the amended complaint, plaintiffs also state that this court has jurisdiction on the
grounds that “Defendant moved against Plaintiffs without jurisdiction; therefore this is not
a tort claim but is a jurisdictional claim.” Plaintiffs allege in their amended complaint,
however, that “Agents, employees, officers or officials actually working for, or claiming to
work for, Defendant did injury Plaintiffs in the sum certain amount of $29,670,081.86 by
issuing bogus, fictitious obligations or counterfeit securities for many years without any
lawful authority or power (jurisdiction) to do so,” are allegations that sound in tort. The
Tucker Act specifically excludes tort claims from the jurisdiction of the United States Court
of Federal claims. See 28 U.S.C. § 1491(a) (‘The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an
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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.”) (emphasis added);
see also Keene Corp. v. United States, 508 U.S. 200, 214 (1993); Rick’s Mushroom Serv.
inc., v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008); Alves v. United States, 133
F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.)
(“Because Brown and Darell’s complaints for ‘fraudulent assessmentjs]’ are grounded
upon fraud, which is a tort, the court lacks jurisdiction over those claims.”), reh'g denied
(Fed. Cir. 1997); Golden Pac. Bancorp. v. United States, 15 F.3d 1066, 1070 n.8 (Fed.
Cir.), reh’g denied, en banc suggestion declined (Fed. Cir.), cert. denied, 513 U.S. 961(1994): Hampel v. United States, 97 Fed. Cl. 235, 238, aff'd, 429 F. App’x 995 (Fed. Cir.
2011), cert. denied, 565 U.S. 1153 (2012); Kant v. United States, 123 Fed. Cl. 614, 616
(2015) (‘[Plaintiff's] claims for ‘conversion’ and ‘fraud’ sound in tort. . . .); Cox v. United
States, 105 Fed. Cl. 213, 218 (2012) (‘[P]laintiffs contend that the United States has
engaged in tortious conduct, including harassment and persecution, malfeasance, fraud,
abuse, and deception ... . The Court of Federal Claims does not possess jurisdiction to
entertain claims sounding in tort.”); Jumah v. United States, 90 Fed. Cl. 603, 607 (2009)
(‘[I]t is well-established that the Court of Federal Claims does not have jurisdiction over
tort claims.”), affd, 385 F. App’x 987 (Fed. Cir. 2010); Woodson v. United States, 89 Fed.
Cl. 640, 650 (2009); Fullard v. United-States, 77 Fed. Cl. 226, 230 (2007) (“This court
lacks jurisdiction over plaintiffs conspiracy claim because the Tucker Act specifically
states that the Court of Federal Claims does not have jurisdiction over claims ‘sounding
in tort.’”); Edelmann v. United States, 76 Fed. Cl. 376, 379-80 (2007) (‘This Court ‘does
not have jurisdiction over claims that defendant engaged in negligent, fraudulent, or other
wrongful conduct when discharging its official duties”) (quoting Cottrell v. United States,
42 Fed. Cl. 144, 149 (1998)); McCullough v. United States, 76 Fed. Cl. 1, 3 (2006), appeal
dismissed, 236 F. App’x 615 (Fed. Cir.), reh’g denied (Fed. Cir.), cert. denied, 552 U.S.
1050 (2007); Agee v. United States, 72 Fed. Cl. 284, 290 (2006); Zhengxing v. United
States, 71 Fed. Cl. 732, 739, aff'd, 204 F. App’x 885 (Fed. Cir.), reh’g denied (Fed. Cir.
2006), To the extent that any of the allegations in plaintiffs’ complaint sound in tort, as
discussed above, this court does not have jurisdiction to adjudicate those claims.
Regarding plaintiffs’ allegations of criminal misconduct, the jurisdiction of the
United States Court of Federal Claims does not include jurisdiction over criminal causes
of action. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also
Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (‘[T]his court does not have
jurisdiction over [plaintiff's] claims because the court may review neither criminal matters,
nor the decisions of district courts.” (internal citation omitted)); Mendes v. United States,
88 Fed. Cl. 759, 762, appeal dismissed, 375 F. App’ 4 (Fed. Cir. 2009); Hufford v. United
States, 87 Fed. Cl. 696, 702 (2009) (holding that the United States Court of Federal
Claims lacked jurisdiction over claims arising from the violation of a criminal statute);
Fullard v. United States, 78 Fed. Cl. 294, 301 (2007) (“[P]laintiff alleges criminal fraud, a
subject matter over which this court lacks jurisdiction.” (citing 28 U.S.C. § 1491; Joshua
v. United States, 17 F.3d at 379)); McCullough v. United States, 76 Fed. Cl. 1, 4 (2006)
(finding that the United States Court of Federal Claims lacked jurisdiction to consider
plaintiff's criminal claims), appeal dismissed, 236 F. App’x 615, reh’g denied, (Fed. Cir.),
cert. denied, 552 U.S. 1050 (2007); Matthews v. United States, 72 Fed. Cl. 274, 282
(finding that the court lacked jurisdiction to consider plaintiff's criminal claims), recons.
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denied, 73 Fed. Cl. 524 (2006). Therefore, any claim asserted by plaintiffs asserting a
claim based on criminal activity or implicating a criminal statute, also must be dismissed.
Citing no particular statute or contractual document, plaintiffs randomly allege the
existence of a contract on the basis that
[a]gents of the IRS, attorneys for the United States Department of Justice
and officers of these United States Courts did swear a certain Oath to
uphold and defend the Constitution for the United States of America (1789),
and pursuant with such, the Constitution and the laws in support thereof are
Law of the Land which does constitute certain first bona fide quid pro quo
contracts sealed under Oath binding with WILLIAM LARRY GILLIARD and
SAMANTHA JEWEL GILLIARD being third party beneficiaries.
Plaintiffs, however, have not offered any evidence indicating that they entered into a valid
contract with the United States. The swearing of an oath to uphold the Constitution is not
the type of contract for goods or services contemplated under the Tucker Act. See 28
U.S.C. § 1491. In order to properly allege a contract, the complaint must allege the
elements of a contract. “[Alny agreement can be a contract within the meaning of the
Tucker Act, provided that it meets the requirements for a contract with the Government,
specifically: mutual intent to contract including an offer and acceptance, consideration,
and a Government representative who had actual authority to bind the Government.”
Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997); see also
Russell Corp. v. United States, 537 F.2d 474, 482, 210 Ct. Cl. 596, 608 (1976) (“For there
to be an express contract, the parties must have intended to be bound and must have
expressed their intention in a manner capable of understanding. A definite offer and an
unconditional acceptance must be established.”). In the above-captioned cases, plaintiffs’
amended complaint has not alleged any of the basic elements of a contract, including:
offer; acceptance; consideration; or that a government representative with actual authority
signed a contract with plaintiffs. See Trauma Serv. Grp. v. United States, 104 F.3d at
1326. Nor have plaintiffs even alleged when the contract might have been executed, or
what were the terms of the alleged contract. The court, therefore, cannot consider the
plaintiffs’ unsubstantiated contract allegation, and any such claim must be dismissed.
Additionally, in plaintiffs’ amended complaint, plaintiffs cite to “42 U.S.C., § 1983”
as a basis for jurisdiction in this court. In its motion to dismiss, defendant properly argues
that this court does not have jurisdiction to review claims pursuant to the Civil Rights Act,
42 U.S.C. § 1981 et seq. and cites to Del Rio v. United States, 87 Fed. Cl. 536, 540
(2009); Schweitzer v. United States, 82 Fed. Cl. 592, 595-96 (2008); and Osborn v. United
States, 47 Fed, Cl. 224, 232 (2000) for support. The statute at 28 U.S.C § 1343(a)(4)
(2012) states: “The district courts shall have original jurisdiction of any civil action
authorized by law to be commenced by any person . . . [tlo recover damages or to secure
equitable or other relief under any Act of Congress providing for the protection of civil
rights, including the right to vote.” Id, To the extent plaintiffs are trying to allege a general
violation of their civil rights under 42 U.S.C. § 1983, the United States Court of Federal
Claims lacks jurisdiction to hear claims alleging a deprivation of civil rights under color of
law. See Elkins v. United States, 229 Ct. Cl. 607, 608 (1981) (“[Wle do not have
jurisdiction over claims based upon alleged violations of the civil rights laws.” (citation
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omitted)); see also Weir v. United States, 141 Fed. Cl. 169, 177-78 (2018); Johnson v.
United States, 135 Fed. Cl. 565, 575 (2017) (“Section 1343 of Title 28 provides the federal
District Courts original jurisdiction over any relief requested under an ‘Act of Congress
providing for the protection of civil rights.” (citations omitted)); Vincent v. United States,
135 Fed. Cl. 561, 563 (2017) (‘[Alctions for civil rights violations brought under 42 U.S.C.
§ 1983 (2012) cannot be heard by this court.” (citing Marlin v. United States, 63 Fed. Cl.
475, 476 (2005), appeal dismissed, 146 F. App’x 491 (Fed. Cir. 2005))), affd, 733 F.
App’x 529 (Fed. Cir. 2018); Wagstaff v. United States, 105 Fed. Ci. 99, 109 (2012); May
v. United States, 104 Fed. Cl. 278, 284 (2012), aff'd, 534 F. App’x 930 (Fed. Cir. 2013).
Furthermore, in Blassingame v. United States, a judge of this court determined that
jurisdiction is lacking over claims brought pursuant to civil rights laws, including 42 U.S.C.
§ 1983, as jurisdiction for such claims remains exclusively with the United States District
Courts. The Blassingame court stated:
Section 1983 is not a jurisdiction-granting statute. District courts are given
jurisdiction to hear claims for damages for violation of that provision by
virtue of 28 U.S.C. § 1343(a)(4) (1988). Such an action cannot be sustained
here, however, because this court has not been given an equivalent
jurisdiction. See Sanders v. United States, 32 Fed. Cl. 573, 576 (1995);
Anderson v. United States, 22 Cl. Ct. 178, 179 n.2 (1990), affd, 937 F.2d
623 (Fed, Cir. 1991).
Blassingame v. United States, 33 Fed. Cl. 504, 505, aff'd, 73 F.3d 379 (Fed. Cir. 1995),
reh’'g denied (Fed. Cir.), cert. denied, 517 U.S. 1237 (1996). Accordingly, this court
dismisses plaintiffs’ claims which allege violations under 42 U.S.C. § 1983 for lack of
jurisdiction.
CONCLUSION
For all the reasons described above, the court GRANTS defendant’s motion to
dismiss both Case No. 19-239T and Case No. 19-290T. Consistent with this Opinion, the
Clerk of Court shall enter JUDGMENT dismissing both cases.
IT IS SO ORDERED. Le
_-MARIAN BLANK HORN
Judge
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