Hicks v. United States ( 2014 )

DRIG|NAL
In the United States Court of Federal CIaimsF|LED
N0. 14-193 C
(Fiied; Augusr29, 2014) AU@ 2 9 2914
U.S. COURT OF
FEDERAL CLA|N|S
Pro Se; Rule l2(b)(l); Lack of
Jurisdiction; Rule 12(b)(6); Failure to
State a Claim; Tort Claims; Punitive
Damages; Informant Reward; Criminal
Penalties; Impeachment; Fifth & Sixth
Amendments; Taking; Frivolousness,
28 U.S.C. § l9l5; Interest; Attorneys’
Fees; Travel Expenses; Costs
ANTHONY R. HICKS,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
\~J§/\}&/§/£§/§/\./\/
Anthony R. Hicks, Embudo, New Mexico, pro se.
Douglas G. Edelschick, Trial Attorney, with whom were Stuart F. Delery, Assistant
Attomey General, Robert E. Kirschman Jr., Director, and Steven J. Gillingham,
Assistant Director, Commercial Litigation Branch, Civi1 Division, United States
Department of Justice, Washington, District of Columbia, for defendant.
OPINION AND ORDER
CAMPBELL-SMITH, Chief Judge
Plaintiff Anthony R. Hicks, pro se, has filed a 128-page Complaint against the
federal government comprised of allegations interspersed with copies of correspondence,
federal statutes, and other papers. Compl., Mar. 7, 2014, Dkt. N0. l (pagination added).
Mr. Hicl2011 WL
3319563 (Fed. Cl. Aug. 1, 2011) (Hicks I).
For the reasons that follow, the court GRANTS defendant’s Motion to Dismiss
and DISMISSES plaintiffs Complaint in its entirety.
I. Discussion
A. The Court Lacks Jurisdiction Over Almost All of Plaintiff s Claims
"Jurisdiction must be established as a threshold matter before the court may
proceed with the merits of this or any other action." OTI America. Inc. v. United States,
68 Fed. Cl. 108, 113 (2005) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
88-89, 118 S. Ct. 1003, 1009-10 (1998)); accord PODS Inc. v. Porta Stor Inc., 484
F.3d 1359, 1365 (Fed. Cir. 2007). The Tucker Act is the primary source of jurisdiction
for this court. § 28 U.S.C. § 1491 (2012) (Tucker Act); Taylor v. United States, 303
F.3d 135 7, 1359 (Fed. Cir. 2002). It vests the court with jurisdiction over any suit
against the United States for money damages "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 . . . in cases not sounding in tort." 28 U.S.C.
§ 1491(a)(1). The Tucker Act, however, does not create any substantive rights and,
therefore, is insufficient to confer jurisdiction on its own. Jan’s Helicopter Serv., Inc. v.
Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc)). A plaintiff must identify a
2
Moreover, even if an obligation to pay money constituted property, it was not
seized for public use, as required for just compensation under the takings clause. _S_@
U.S. Const. amend. V. "In other words, nothing was really ‘taken’ from [the plaintiff]
for the use of the public-at best, proceeds simply were not paid." Adams, 2003 WL
22339164, at *8. "Accordingly, the govemment did not appropriate plaintiff[’s] money
for its own purpose." I_d. at *9. "Instead, it simply did not pay plaintiff[]" because it
believed plaintiff was not entitled to the money. I_d. As this court previously stated:
Indeed, for courts to rule [that failure to pay a monetary obligation is a
taking] would elevate ordinary claims for monies owed by govemment into
constitutional cases. . . . [T]o so rule would also produce absurd semantic
results. . . . "[A]nalyzing the assessment under the principles of takings law
is awkward . . . because the property allegedly taken in this case was money
[which] leads to the curious conclusion that the government may take the
[plaintiff’s] money as long as it pays the money back[."] When cash
payments are solely involved, it is strained to talk about cash for cash as
compensation when it is really a kind of replevin or debt payment.
§§ (quoting Branch v. United States, 69 F.3d l57l, 1575-1576 (Fed. Cir. 1995)).
Mr. Hicks cannot prove any set of facts to support his conclusory allegation that a
taking has occurred based on the government’s refusal to pay Mr. Hicks’ $171\/1 demand.
Accordingly, Mr. Hicks fails to state a Fifth Amendment takings claim and that claim
must be dismissed.§
II. Frivolousness Under the In Forrna Pauperis Statute
Defendant also moves to dismiss plaintiff’s Complaint as frivolous under
28 U.S.C. § l9l5(e)(2). Def.’s Mot. Dismiss 9-10. The cited statute provides that "the
court shall dismiss [a] case at any time if the court determines that . . . the action . . . is
frivolous . . . ." 28 U.S.C. § l9l5(e)(2)(B)(i). However, the statute only applies to cases
5 In the alternative, plaintiffs takings claim is dismissed for lack of jurisdiction
under Rule l2(b)(l). § Filler v. United States, 116 Fed. Cl. 123, 127 (2014)
("‘Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the
federal claim is proper only when the claim is so insubstantial, implausible, foreclosed
by prior decisions . . . , or otherwise completely devoid of merit as not to involve a
federal controversy."’) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89,
118 S.Ct. 1003,1()10(1998)).
ll
brought in forma pauperis.é § @; Denton v. Hernandez, 504 U.S. 25, 3 l, ll2 S. Ct.
l728, 1732 (1992); Taylor v. United States, No. 2014-5110, --- F. App’x ---, 2014 WL
3827558 at *l (Fed. Cir. Aug. 5, 2014) (per curiam); Pikulin, 425 F. App’x at 903.
Here, plaintiff paid his initial filing fee and, therefore, is not proceeding in forma
pauperis. §e_e Dkt. No. l (text entry stating, "$400.00 filing fee paid, receipt number
076346"); see also Pikulin v. U.S., 97 Fed. Cl. at 73 n.3 (explaining the court may take
judicial notice of a court docket when ruling on motion under Rule l2(b)(6)). The
statute is inapposite and defendant’s request for dismissal under the statute must be
denied.
III. Interest, Attorneys’ Fees, And Costs
Plaintiff’s request for "interest" on his $l7M demand must be denied because
there is no statute authorizing the payment of prejudgment interest in this case. §§
Normandv Apartments, Ltd. v. United States, 100 Fed. Cl. 247, 258 n.l6 (2011) (citing
Librag of Congress v. Shaw, 478 U.S. 310, 3l7, l06 S. Ct. 2957, 2962-63 (1986) ("In
creating the Court of Claims, Congress retained the [g]overnment’s immunity from
awards of interest, permitting it only where expressly agreed to under contract or
statute."), superseded by statute on unrelated grounds, Civil Rights Act of l99l, Pub. L.
102-166, 105 Stat. l07l). Plaintiff s request for fees and costs (including travel
expenses) likewise must be denied. Pro se litigants are not entitled to recover attorneys’
fees. Phillips v. Gen. Servs. Admin., 924 F.2d 1577, l583 (Fed. Cir. l99l) (under 28
U.S.C. § 2412 (2012), "a party acting pro se is not entitled to an attorney fee award").
Moreover, even if Mr. Hicks were not precluded from recovering fees by his pro se
status, he would not be entitled to any fees or costs because he did not prevail on any
issue. 28 U.S.C. § 24l2(a)(l) (permitting fee and cost awards only to "the prevailing
party"). Therefore, Mr. Hicks is plainly not entitled to interest, fees, or costs.
IV. Conclusion
The court GRANTS defendant’s Motion to Dismiss under Rules l2(b)(l) and
l2(b)(6), and DISMISSES plaintiffs Complaint. The Clerk shall enter judgment
accordingly. No costs.
Furtherrnore, based on the court’s review of plaintiffs Complaint and its exhibits,
plaintiffs Response to Defendant’s Motion to Dismiss, and Judge Block’s decision in
Hicks I, 201 l WL 33 195 63, which outlines Mr. Hicks’ litigation history in this court and
other fora, the court is concerned that Mr. Hicks’ contacts with the court and other fora
6 § Black’s Law Dictionary 899 (l0th ed. 2014) (defining "in forma pauperis" as
"[i]n the manner of an indigent who is permitted to disregard filing fees and court
costs").
12
appear to demonstrate "indicia of frivolousness and harassment." §e_e Hemphill v.
Kimberly-Clark Corp., 374 F. App’x 4l, 45 (Fed. Cir. 2()10) (quoting In re Powell, 851
F.Zd 427, 431 (D.C. Cir. l988) (describing guidelines for anti-filing injunctions for pro
se litigants)). Accordingly, Mr. Hicks is cautioned that further frivolous filings in this
court may result in monetary or non-monetary sanctions. _S£e RCFC ll(c).
I'l` IS SO ORDERED.
ATRICIA E`. CAMP LL~SM_ 'T
Chief Judge
separate source of law that creates a right to money damages for his or her claim. I_d.;
Holmes v. United States, 657 F.3d 1303, 1309 (Fed. Cir. 2011) (explaining that the
Tucker Act "is a jurisdictional provision ‘that operate[s] to waive sovereign immunity
for claims [against the United States] premised on other sources of law (e.g., statutes or
contracts"’) (quoting United States v. Navajo Nation, 556 U.S. 287, 290, 129 S. Ct.
1547, 1551 (2009)). "Not every claim invoking the Constitution, a federal statute, or a
regulation is cognizable under the Tucker Act." United States v. Mitchell, 463 U.S. 206,
216, 103 S. Ct. 2961, 2967-68 (1983). The test is whether the independent source of
law "can fairly be interpreted as mandating compensation by the [f] ederal [g] overnment
for [the particular harm] sustained [by the particular plaintiff]." I_d. at 216-17 (citation
omitted); see also Fisher, 402 F.3d at 1172 ("[The] source must be ‘money-
mandating."’); Contreras v. United States, 64 Fed. Cl. 583, 588-92 (2005).
When faced with a jurisdictional challenge under Rule 12(b)(1), the court will
generally "accept as true the facts alleged in the complaint and draw all reasonable
inferences in favor of the plaintif ."1 Goel v. United States, 62 Fed. Cl. 804, 806 (2004)
(citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)); accord Folden v.
United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (quoting Shearin v. United States,
992 F.2d 1195, 1195~96 (Fed. Cir. 1993)). Courts hold pro se complaints, "however
inartfully pleaded," "to less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972); accord
Vaizburd v. United States, 384 F.3d 1278, 1285 n.8 (Fed. Cir. 2004) (citing Forshey v.
Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) (en banc)). "‘As [is] often done with pro
se plaintiffs, the court searches the record to see if a plaintiff has a cause of action
somewhere displayed."’ Goel, 62 Fed. Cl. at 86 (quoting Boyle v. United States, 44
Fed. Cl, 60, 62 (1999)); accord Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl.
1969)
While the court may excuse ambiguities or the lack of formalities in a pro se
plaintiffs complaint, Henl59 Fed. Cl.
497, 499, aff’d, 98 F. App’x 860 (Fed. Cir. 2004). If jurisdiction is lacking, the court
must dismiss the action. RCFC 12(h)(3); Thoen v. United States, 765 F.2d 1110, 1116
(Fed. Cir. 1985). Alternatively, the court may transfer the action to another federal court
that would have jurisdiction, if the transfer would be in the interest of justice. Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing 28 U.S.C. § 1631; Telcomm Techn.
Servs. Inc. v. Siemens Rolm Commc’ns, 295 F.3d 1249, 1252 (Fed. Cir. 2002)).
‘ If a defendant challenges a plaintiffs jurisdictional facts, then the court may look
beyond the pleadings to resolve its jurisdiction, Cedars-Sinai Med. Ctr. v. Watkins, 11
F.3d 1573, 1583-84 (Fed. Cir. 1993); Trevino v. United States, 113 Fed. Cl. 204, 207-
208 (2013), aff`d, 557 F. App’x 995 (Fed. Cir. 2014).
A liberal reading of Mr. Hicks’ Complaint fails to implicate any money-
mandating constitutional provision, federal statute, federal regulation or contract under
which this court may exercise jurisdiction, with the exception of his possible takings
claim addressed in Section I.C., mt
1. Plaintiff’s Claim for $l7M in Tort Damages
Plaintiff‘s demand for $17M falls outside this court’s jurisdiction for multiple
reasons. First, the demand is based on allegations of personal injury resulting from
conduct that sounds in negligence, fraud, intentional infliction of emotional dismiss, or
other wrongful activity. § Compl. at 87~88, 90-91, 96-97. These are all torts. Seals-
Bey v. United States, 116 Fed. Cl. 120, 122 (20l4) (citing Dupre v. United States, 229
Ct. Cl. 706, 706 (l981) (per curiam)); Cottrell v. United States, 42 Fed. Cl. 144, 149
(1998); accord Cugg v. United States, 609 F.2d 980, 983 (Ct. Cl. 1979). However, the
Tucl508 U.S. 200, 214, 113 S. Ct. 2035, 2043
(1993); Rick’s Mushroom Serv. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008).
Second, plaintiffs multi-million dollar demand reflects not only the alleged sum
of actual damages he seeks but a request for punitive damages as well. This court has no
authority to award punitive damages. Garner v. United States, 230 Ct. Cl. 941, 941
(1982). Nor are such damages available in tort suits against the United States.
28 U.S.C. § 2674 (2012); Vincin v. United States, 468 F.2d 930, 932 (1972) (per
curiam).
Third, although Mr. Hicks names the United States as a party defendant, his tort
claim concerns the conduct of a South Carolina police detective, not the actions or
inactions of the federal govemment. This court has no authority to hear claims against
private individuals or state entities, including (as in this case) a state police detective or
perhaps his police department. § Cottrell, 42 Fed. Cl. at 148 (citing United States v.
Sherwood, 312 U.S. 584, 588, 61 S. Ct. 767, 770 (1941)); Moore v. Public Defenders
Office, 76 Fed. Cl. 617, 620 (2007) (explaining the court has no jurisdiction over "local,
county, or state agencies, rather than federal agencies"). This court may only consider
claims properly brought against the United States, 28 U.S.C. § 1491(a)(1).
Fourth, the alleged incident appears to have occurred at least fifteen years ago.
§§ Hicks I, 2011 WL 3319563, at *1. As such, the tort claims are untimely because
they fall well outside this court’s general six-year statute of limitations. § 28 U.S.C. §
2501; John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008)
(holding that this court’s six-year statute of limitations is jurisdictional).
Accordingly, this court has no authority to hear plaintiffs untimely tort-based
claims against a state police detective for compensatory and punitive damages.
2. Plaintiffs Claim for $l7M as an Alleged "Entitlement" or "Award"
Plaintiffs claim for $l'7M fares no better when he characterizes the $l7M claim
as a prior "entitlement" or "award," se_e Compl. at 2, 84-85, 121-23, 126-28, 108-09,
rather than as a prior demand. Mr. Hicks fails to identify any money-mandating source
of law (whether statute, regulation, or contract) or the Constitution that would have
reguired the government pay this amount. § 28 U.S.C. § 1491; RCFC 9(j) (setting
forth plaintiffs obligation to identify the statute, contract, or other source of law relied
upon for claim). For example, plaintiff identifies no facts from which the court might
infer a prior contract, settlement agreement, or judgment in his favor that might have
obligated a payment. In addition, this court never entered judgment in plaintiffs favor;
on the contrary, it dismissed his prior suit for lack of jurisdiction.z § Hicks I, 2011
WL 3319563, at *3. The court has no jurisdiction over plaintiffs claim of an alleged
prior "entitlement" or "award."
3. Plaintiffs Claims Against Federal Officials
The court also lacks authority to adjudicate claims against individual federal
officers such as, in this case, the President, the Attorney General, and the Assistant
Attorney General. "The Tucker Act grants the Court of Federal Claims jurisdiction over
suits against the United States, not against individual federal officials." Brown v. United
States, 105 F.3d 62l, 624 (Fed. Cir. l997) (citing 28 U.S.C. § l491(a)). "‘[I]fthe relief
sought is against others [not] the United States, the suit as to them must be ignored as
beyond the jurisdiction of the court."’ Pikulin v. United States, 97 Fed. Cl. 71, 75
(2011) (quoting Sherwood, 312 U.S. at 588, 61 S. Ct. at 770)); Stephenson v. United
States, 58 Fed. Cl. 186, 190 (2003) ("[C]laims against various individual officials in
2 Plaintiff appears to misunderstand the effect of this prior ruling. He argues that
the judge in his prior case "issued a summary |judgment], Anthony R. Hicks, and
demand for payment of $l7.mil. and this over three years ago." Pl.’s Resp. to Def.’s
Mot. Dismiss (Pl.’s Resp.), Aug. 14, 20l4, Dkt. No. 8, at 2 (capitalization altered). In
Hicks v. United States, No. l0-793C, 2011 WL 3319563 (Fed. Cl. Aug. l, 201l)
(Hicks I), Judge Block indeed issued "summary judgment" on Mr. Hicks’ seventeen
million dollar demand; however, summary judgment was in favor of the govemment and
g in favor of Mr. Hicks, who lost on all of his claims for lack of jurisdiction. Plaintiff
also refers to another order in that case, entered April 26, 20ll, § Pl.’s Resp. App.,
Dkt. No. 8-2, at B-2, but that order merely reflected the court’s agreement to review
plaintiff s arguments in "Plaintiff s Cross-Motion" and did gt reflect the court’s
acceptance of those arguments.
their personal and professional capacities cannot be entertained in this court.").
Therefore, the court cannot consider plaintiffs claims against federal executive officials.
4. Plaintiff’s Allegations Under the Criminal Code
Also outside this court’s jurisdiction are plaintiffs claims based on the criminal
code_§g;, 18 U.S.C. §§ 371-373 (conspiracy), 641-670 (embezzlement and theft),
1501-1521 (obstruction ofjustice); 18 U.S.C. §§1621-1623 (perjury)-as well as his
demands for the impeachment of federal officials, see U.S. Const. art. II, § 4, and the
imposition of various other criminal penalties, §§ 18 U.S.C. § 3553(a) (incorporating by
reference the U.S. Sentencing Guidelines Manual (20l3)). This court "has no
jurisdiction to adjudicate any claims whatsoever under the federal criminal code."
Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); Hover v. United States, ll3
Fed. Cl. 295, 296-97 (2013), aff’d, No. 2014-5022, --- F. App’x ---, 2014 WL 2523253(Fed. Cir. Jun. 5, 2014).
Further, the court is empowered only to impose monetary damages and limited
forms of ancillary relief § Nat’l Air Traffic Controllers Ass’n v. United States, l60
F.3d 714, 716 (Fed. Cir. 1998) (per curiam) (explaining there is no jurisdiction to grant
non-monetary relief except in limited circumstances); J ames v. Caldera, l59 F.3d 573,
580 (Fed. Cir. l998) (explaining that limited equitable relief must be an incident of and
collateral to a money judgment) (citations and quotations omitted). By extension, the
court has no authority to grant the criminal penalties requested by plaintiff, particularly
the arrest, incarceration, and capital punishment of executive officials. §Q§ Brunson v.
United States, No. 10-837, 2011 WL 2784596, *2 (Fed. Cl. July l2, 201 l) ("[T]he court
lacks jurisdiction to hear criminal cases, and thus the Court could not imprison the
offending employees."). In addition, the court cannot impeach any executive official
because the Constitution expressly vests the power of impeachment within the sole
province of Congress. § U.S. Const. art. I § 2, cl. 5 & § 3 cl. 6 (vesting the House of
Representatives and the Senate with impeachment powers). In sum, neither plaintiffs
criminal charges, nor his demands for impeachment and criminal penalties, belong in
this court.
5. Plaintiff"s Demand for an "Informant Reward"
This court also lacks jurisdiction over plaintiff’s demand for a $l57M "informant
reward." §§ Compl. at 2, 8, 55. Mr. Hicks fails to identify a money-mandating source
of law that would obligate the government to pay such an award. § RCFC 9(j) (setting
forth plaintiffs obligation to identify the statute, contract, or other source of law relied
upon for claim). Statutes that provide rewards for informants or whistleblowers are
plainly inapposite to Mr. Hicl16 F.3d 1204, 1210 (Fed. Cir. 1994) ("Absent privity
[of contract] between [plaintiff] and the government, there is no case."); San Carlos
Irrigation & Drainage Dist. v. United States, 877 F.Zd 957, 959 (Fed. Cir. 1989)
(explaining that "[t]o recover for breach of contract, [plaintiff] must allege . . . (1) a valid
contract between the parties, (2) an obligation or duty arising out of the contract, (3)
breach of that duty, and (4) damages caused by the breach"); contra Vargas v. United
States, 114 Fed. Cl. 226, 232-36 (2014) (finding jurisdiction existed over claim for
breach of confidential informant agreement).
6. Plaintiff’s Claims Based on the Constitution and Other Statutes
Plaintiff’s constitutional claims also must fail for want of jurisdiction. The court
liberally construes plaintiffs scattered references to the Due Process Clause of the Fifth
Amendment and to the Sixth Amendment, Compl. at 54, as allegations that federal
officials violated these constitutional protections, w_e § at 2 (alleging "wrongful
violations of [the] United States Constitution"). But, neither constitutional provision is
money-mandating and, thus, neither can be a source of jurisdiction for this court.
Winston v. United States, 465 F. App’x 96(), 961 (Fed. Cir. 2012) (per curiam) (holding
that claims arising under the Sixth Amendment "fall outside the jurisdiction of the
[Court of Federal Claims]"); Collins v. United States, 67 F.3d 284, 288 (Fed. Cir. 1995)
(holding that the court lacks jurisdiction over an alleged violation of the Due Process
Clause because the clause does not obligate the government to pay money damages)
(citing cases).
Also misplaced is Mr. Hicks’ reliance on the myriad of other federal and state
laws to which he cites. Either the cited federal statutes are not money-mandating or the
statutes are plainly inapposite to the facts of this case. See, e.g., Compl. at 2, 7, 125-26,
128 (citing, § L, 42 U.S.C. § 7413, which provides for federal enforcement of
environmental laws). The court similarly lacks jurisdiction over Mr. Hicks’ state law
and procedure claims. See, e.g., § at 2, 7 (citing Kansas statutory law, KRS 224.01-
.50, concerning failure to enforce state law or regulations); § at 87-88, 112-14 (citing
New Jersey civil practice provision, Rule 4:51, concerning writs of "ne exeat and capias
ad respondendum"); Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir.
2007) ("Claims founded on state law are also outside the scope of the limited
jurisdiction of the Court of Federal Claims.").
B. The Jurisdictionally-Flawed Claims Must Be Dismissed, Not Transferred
Based on the foregoing, the court has found that it lacks jurisdiction over
plaintiff s demands for $17M in tort damages, $157M in "informant reward," the
impeachment and criminal punishment of federal executive officials, and other damages.
The court further declines to transfer any of these claims to another court that might
have jurisdiction. Transfer is permitted if "it is in the interest of justice." 28 U.S.C. §
l63l (2012). "The phrase ‘if it is in the interest of justice’ relates to claims [that] are
nonfrivolous and as such should be decided on the merits." Galloway Farms, Inc. v.
United States, 834 F.Zd 998, 1000 (Fed. Cir. 1987) (citing Zinger Constr. Co. v. United
States, 753 F.Zd l053, 1055 (Fed. Cir. 1985)). Transfer is not in the interest ofjustice
here because plaintiffs claims are frivolous.
"Frivolous claims include spurious and specious arguments and distortion and
disregard of the record[,] . . . involve legal [conclusions] not arguable on the merits, . . .
or [are] those whose disposition is obvious." I_d. (quotations and citations omitted).
Each of these descriptions of "frivolous claims" fairly characterizes Mr. Hicks’ claims.
For example, his tort claims were already dismissed by at least three different fora and
are based on events too far back in time to be within any conceivable limitations period
in any court. § Hicks I, 2011 WL 3319563, at * l~2. His criminal malfeasance
allegations are purely conclusory and lack any cognizable factual support. At most,
plaintiff alleges that federal employees or officials defended the government against his
earlier suits or advocated in a court of law for the dismissal of his legal claims. The
court is not aware of any constitutional protection, statute, regulation, or contract
applicable to Mr. Hicks that would be violated merely by such activity in an adversarial
legal proceeding. Also missing from Mr. Hicks’ Complaint is any legally cognizable
factual nexus between his claims and any specific action of the President, the Attomey
General, or the Assistant Attomey General. His summary assertions that these
individuals "were among those who witnessed the decision [in Hicks I, 201 l WL
33 19563]" and that "the President has executive responsibilities such as overseeing these
occurrences, as well as, enforcing these laws" are insuff`1cient. § Pl.’s Resp. l-2.
Accordingly, it is appropriate to dismiss Mr. Hicks’ jurisdictionally deficient claims in
lieu of transferring them to another court. 3
C. Plaintiff Fails to State a Fifth Amendment Takings Claim
Plaintiff s Complaint contains interspersed references to a "taking," Compl. at 54,
121, and to destruction and theft of"stolen property," gg;, § at 7, 29, 3 l, 36, l2l, 125,
128, which could be interpreted as an effort to pursue just compensation for a taking
under the Fifth Amendment, U.S. Const. amend. V, cl. 5 (a Takings claim). Takings
claims fall properly within the jurisdiction of this court. § 28 U.S.C. § l49l(a)(l);
Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102, 125-26, 95 S. Ct. 335, 349-50
“ Because the court dismisses these claims for lack of jurisdiction pursuant to Rule
l2(b)(l) of the Rules of the United States Court of Federal Claims (RCFC or Rule), it
need not address whether Rule l2(b)(6) would provide alternative grounds for dismissal.
(1974) (citing cases back to 1932); Bywaters v. United States, 670 F.3d 1221, 1224
(Fed. Cir. 2012); Fry v. United States, 72 Fed. Cl. 500, 508 (2006).
"[T]he more difficult question is whether [a plaintiff has] stated such a claim in [a
particular] case." Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987); §
als_o A&D Auto Sales Inc. v. United States, 748 F.3d 1142, 1150-55 (2014) (surveying
various forms of viable takings claims). The Takings clause states that "private property
[shall not] be taken for a public use, without just compensation." U.S. Const. amend. V,
cl. 5. A claimant "must show that the [United States], by some specific action, took a
private property interest for public use without just compensation." Adams v. United
States, 391 F.3d 1212, 1218 (Fed. Cir. 2004) (citing Hodel v. Va. Surface Mining &
Reclam. Ass’n, 452 U.S. 264, 294, 101 S. Ct. 2352, 2370 (1981)); Short v. United
States, 50 F.3d 994, 1000 (Fed. Cir. 1995); see also RCFC 9(i) ("In pleading a claim for
just compensation under the Fifth Amendment of the United States Constitution, a party
must identify the specific property interest alleged to have been taken by the United
States."). In this case, however, even if jurisdiction exists in the abstract, Mr. Hicks fails
to state a viable takings claim.
To survive defendant’s Rule 12(b)(6) challenge, plaintiffs "complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face."’ Ashcroft v. Igbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007)).4 The court must "accept as true the facts alleged in the cornplaint" and "must
draw inferences in the light most favorable to the plaintiff." Hornback v. United States,
601 F.3d 1382, 1384 (Fed. Cir. 2010) (quotation and citation omitted). However, the
court "is not required to indulge in unwarranted inferences in order to save a complaint
from dismissal." Juniper Networks, Inc. v. Shipley, 643 F.3d 1346, 1350 (Fed. Cir.
2011) (quotation and citation omitted). The alleged facts must be sufficient for "the
court to draw the reasonable inference that the defendant is liable for the misconduct
4 The court "may also look [beyond the pleadings] to matters incorporated by
reference or integral to the claim, items subject to judicial notice, [and] matters of public
record" in deciding motions to dismiss. A&D Auto Sales Inc. v. United States, 748
F.3d 1142, 1147 (Fed. Cir. 2014) (quotation and citation omitted); AstraZeneca Pharm.
LP v. Apotex Corp., 669 F.3d 1370, 1378 n.5 (Fed. Cir. 2012). Specifically relevant to
this case, the court may review the exhibits attached to plaintiffs Complaint on which
plaintiff relies in support of his claims, as well as Judge Block’s decision in Hicks I,
2011 WL 3319563, the docket in that case, and filings made therein. Pikulin v. United
States, 97 Fed. Cl. 71, 73 n.3 (201l) (citing Fed. R. Evid. 201; McTernan v. City of
York Pa., 577 F.3d 521, 526 (3d Cir. 2009) (judicial opinion); Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (docket sheets); United States v. Estep,
760 F.Zd 1060, 1063 (l0th Cir. 1985) (court records of closely related prior litigation)).
alleged." l_q_bal, 556 U.S. at 678, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556,
127 S. Ct. at 1955). "[L]abels and conclusions . . . will not do." Twombly, 550 U.S. at
555, 127 S. Ct. at 1965. The "allegations must raise a right to relief above the
speculative level." I_d.
If the facts underlying a claim (even if true) would not entitle a party to relief,
then the court must dismiss the claim. RCFC 12(b)(6); Lindsay v. United States, 295
F.3d 1252, 1257 (Fed. Cir. 2002) (explaining dismissal "is appropriate when the facts
asserted by the claimant do not entitle him to a legal remedy"). As the Federal Circuit
has explained, "[a] motion made under Rule l2(b)(6) challenges the legal theory of the
complaint, not the sufficiency of any evidence that might be adduced." Advanced
Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157, 1160 (Fed. Cir.
1993). "The purpose of the rule is to allow the court to eliminate actions that are fatally
flawed in their legal premises and destined to fail, and thus to spare litigants the burdens
of unnecessary pretrial and trial activity." I_d_. (citation omitted). However, "[a]
complaint should not be dismissed unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief."
Contreras, 64 Fed. Cl. at 586 (quotation and citation omitted).
Here, plaintiff appears to premise his takings claim on the government’s refusal
to pay his $l7M demand and its ongoing retention of his demanded amount. Cornpl. at
2 ("fail to pay"); § at 128 ("purported stolen award money") (capitalization altered). A
demand for personal injury and punitive darnages, however, is not "property" within the
meaning of the Fifth Amendment. As explained earlier in this ruling, a demand is not
the same as an entitlement. § gl_pla Section I.A.2. Even if plaintiffs demand
represented a genuine obligation of the government, the failure to pay such a monetary
obligation would not amount to a taking. C_f; Adams v. United States, No. 00-447C,
2003 WL 22339164, at *8 (Fed. Cl. Aug. ll, 2003) (explaining that plaintiffs statutory
right to underpaid overtime compensation under the Fair Labor Standards Act is not a
property interest for purposes of the Takings clause, but rather an ordinary obligation to
pay money under a compensation statute), §@, 391 F.3d 1212, 1220, 1224 (Fed. Cir.
2004); Kitt v. United States, 277 F.3d 1330, 1336-37 (Fed. Cir. 2002) (holding that
general obligation to pay money under a disputed provision of the tax code was not a
taking); see also Cannon v. District of Columbia, 873 F. Supp. 2d 272, 282 (D.D.C.
2012) (dismissing takings claim premised on deduction in employee paychecks as offset
for pension payments), aff’d in relevant part, 717 F.3d 200, 206, 208 (D.C. Cir. 2013)
(explaining plaintiffs had no "‘cognizable property interest’ in the simultaneous receipt
of their annuities and full salaries," and affirming dismissal of the constitutional takings
claim). The Federal Circuit has explained that "a legally-recognized property interest
such as one in real estate, personal property, or intellectual property . . . is protected as
property under the Takings Clause, whereas [an ordinary obligation to pay money] is not
because it lacks any foundation in property law." Adams, 391 F.3d at 1224.
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