Darling v. United States ( 2018 )

3Jn tl)e Wniteb ~tates Qtourt of jfeberal Qtlaims
No. 18-848C
(Filed November 30, 2018)
NOT FOR PUBLICATION
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T.-A. DARLING, et al., *
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Plaintiffs, *
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V. *
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THE UNITED STATES, *
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Defendant. *
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MEMORANDUM OPINION AND ORDER
WOLSKI, Judge.
This case was filed prose on June 13, 2018, by Tomery A. Darling. Plaintiff
asserts (on behalf of herself, her two minor children, and the purported estate of her
former married name) a number of claims against employees of the Departments of
Child Support Services of two California counties and other California state, county,
and municipal actors for, inter alia, conspiring to create and collect child support
debts. See Complaint (Compl.), ECF No. 1.1 The government has moved to dismiss
this case under Rules 12(b)(l) and 12(b)(6) of the Rules of the United States Court
of Federal Claims (RCFC). See Mot. to Dismiss at 1 (Def.'s Mot.), ECF No. 7.
Because Ms. Darling has failed to state a claim for relief that falls within this
court's jurisdiction, the government's motion to dismiss this case must be
GRANTED.
1 Though not involving the federal government, this case is captioned as against
the United States, in accordance with the rules of this Court. See Notice ofNon-
ECF Case at n.l, ECF No. 4.
I. BACKGROUND
In a complaint that spans 85 pages (and an "Original Bill Appendix''
spanning 74 pages), plaintiff demands a jury trial and seeks $132,000,000.00 in
damages, injunctive relief, and declaratory relief against over 500 named and
unnamed defendants including California state employees, private individuals, and
several state agencies and municipalities. Compl. at 1 & ,i,i 7-14, 23-133. She
does not, however, name the United States as defendant. See Compl. Despite the
complaint's impressive length, Ms. Darling's allegations are far from clear. The
crux of her complaint appears to be that, after her divorce on November 5, 2010, the
terms of an order addressing custody and support for her minor children were
modified by a state court. Id. ,i,i 134-35, 138-39, 144, 147-49. In March and April
2015, Ms. Darling indicates that her ex-husband sought child custody, a child
support order, and a domestic violence order against her. Id. ,i,i 140-41. The
domestic violence order was denied. Id.
Plaintiff was subsequently denied custody of her children in June 2016. Id.
,i,i 150-53, 163-65. She states that, on August 8, 2016, her ex-husband Michael
Powell filed domestic violence proceedings against her and it seems that she
avoided service, see id. ,i,i 148-49, 155, but that on September 7, 2016, she
appeared in state court only to be restrained by bailiffs after trying to leave in the
middle of proceedings. Id. ,i,i 149, 157-58. On September 15, she alleges, her ex-
husband maintained domestic violence proceedings against her. Id. ,i,i 155, 163. In
December 2016, she was issued a restraining order. Id. ,i 164. Thereafter, she
claims, Mr. Powell removed their children to an unidentified location on or about
July 30, 2017. Id. ,i 176. On or about August 29, 2017, Ms. Darling claims she was
arrested and detained when she voluntarily appeared in state court. Id. ,i 180.
State court proceedings continued through April 2018. Id. ,i,i 179-97. 2
Plaintiff maintains that this court has jurisdiction over her claims under 15
U.S.C. § 1125(a) and 28 U.S.C. §§ 1331, 1343, 1367, and she thereby mistakes this
court for a United States District Court. Id. ,i 16. In fact, at one point in her
complaint, it appears that plaintiff mistakes this Court for the United States
District Court for the Eastern District of California. Id. ,i 18. Substantively, Ms.
Darling alleges the following in the span of 17 causes of action totaling 21 counts:
child abduction; battery; false imprisonment; negligence; negligent infliction of
emotional distress; fraud and intentional deceit; civil rights violations (citing 42
U.S.C. § 1983); conspiracy to interfere with civil rights (citing 42 U.S.C. § 1985);
neglect to prevent civil rights violations (citing 42 U.S.C. § 1986); establishment of
2 This matter is related to numerous other cases where Ms. Darling is either the
plaintiff or defendant. See, e.g., Darling v. Powell, No. 2:17-01692, 2017 WL
3537398 (E.D. Ca. Aug. 17, 2017); Powell v. Darling, No. 2:17-0392, 2017 WL
2257139 (E.D. Ca. May 23, 2017).
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policies which violate constitutional rights; 3 violations of California civil rights law,
intentional infliction of emotional distress; stalking; false endorsement and unfair
competition (citing the Lanham Act, 15 U.S.C. §§ 1116, 1117); and conspiracy more
broadly. Id. ,r,r 200-347.
Throughout her complaint, plaintiff also alleges multiple violations of the
U.S. Constitution. In a cursory fashion, plaintiff alleges violations of her Fifth,
Sixth, and Ninth Amendment rights. Id. ,r 13. But the bulk of her constitutional
arguments seem to repeatedly rest on alleged violations of the Fourth Amendment
right to be free from unreasonable search and seizure, id. ,r,r 267-69, 282, 284-85,
289, 293, 297, 304, 340, and the Fourteenth Amendment's equal protection clause,
due process clause, and "right to familial association," id. ,r,r 201-06, 212-17, 224-
30, 252-58, 273-79, 285,289,293,297,304,340. 4
The United States has filed a motion to dismiss the complaint on two bases:
plaintiff fails to name any defendant over whom this court has jurisdiction and
plaintiff fails to allege any cause of action which the court has jurisdiction to
entertain. See Def.'s Mot at 1, 3-9. In response, Ms. Darling raises a number of
what she calls "affirmative defenses," which include arguments traditionally made
by defendants. She raises these "affirmative defenses" in a manner that both
undermines her original complaint and fails to address defendant's motion to
dismiss. See Answer to Mot. to Dismiss (Pl.'s Resp.), ECF No. 8 (arguing, inter alia,
that defendant fails to state a cause of action; that the doctrines of res judicata and
collateral estoppel somehow barred defendant's motion; that defendant is an
improper party; that the named defendants somehow consented and waived any
objections to the merits of the complaint; and that the motion was not ripe). She
3 Plaintiff is seemingly invoking Monell v. Dep't of Soc. Servs. of the City of New
York, 436 U.S. 658 (1978), in which the Supreme Court held that a local
government constitutes a "person" subject to suit under 42 U.S.C. § 1983, as do local
government officials acting in their official capacity, when the constitutional
deprivation arises from a government custom. See Compl. ,r,r 296-300.
4 Presumably, plaintiff has in mind the line of cases that includes the Supreme
Court's decision in Troxel v. Granville, 530 U.S. 57, 65 (2000), finding that "the
interests of parents in the care, custody, and control of their children---is perhaps
the oldest of the fundamental liberty interests recognized by this Court." Relevant
to California, the Ninth Circuit Court of Appeals ruled in Kraft v. Jacka that this
right of intimate association is properly within the Fourteenth Amendment, rather
than the First Amendment. 872 F.2d 862, 871-72 (9th Cir. 1989). See also IDK,
Inc. v. Clark County, 836 F.2d 1185, 1192 (9th Cir. 1988) (noting that "the Supreme
Court has most often identified the source of the protection as the due process
clause of the fourteenth amendment, not the first amendment's freedom to
assemble").
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does contend, however, that federal agencies should have controlled the behavior of
California's government officials. In her own words, "[t]he Office of Personnel
Management, Department of the Treasury, Department of Health and Human
Services, Department of Education, or other authority with the power to control the
office is the real party in interest for Causes One, and applicable subsequent
causes." Pl.'s Resp. ,r 14. Defendant's reply, therefore, reiterates the twofold
argument raised in the motion to dismiss. See Reply to Response to Motion to
Dismiss (Def's Reply), ECF No. 9. Though plaintiff identifies federal agencies in the
course of making her arguments, defendant rightly notes that "Ms. Darling has not
alleged any wrongdoing by the United States." Id. at 1.
II. DISCUSSION
A. Standard of Review
Under RCFP 12(b)(6), this court must dismiss claims that do not fall within
its subject-matter jurisdiction. When considering a motion to dismiss a case for lack
of subject-matter jurisdiction, courts will accept as true all factual allegations the
non-movant made and draw all reasonable inferences in the light most favorable to
that party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics,
Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (stating that on a motion to dismiss for
lack of subject-matter jurisdiction this court views "the alleged facts in the
complaint as true, and if the facts reveal any reasonable basis upon which the non-
movant may prevail, dismissal is inappropriate"); CBY Design Builders v. United
States, 105 Fed. Cl. 303, 325 (2012).
Though a prose plaintiff's filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Schirripa v. United States, No. 1:16-01073, 2018 WL
4049126, at *l (Fed. Cir. Aug. 24, 2018) (relying on Erickson); Ottah v. Fiat
Chrysler, 884 F.3d 1135, 1141 (Fed. Cir. Mar. 7, 2018), this lenient standard will not
spare claims from dismissal which fall outside this court's jurisdiction by failing to
either establish a breach of contract by the federal government or identify a money-
mandating law which was allegedly violated by the federal government. See United
States v. Mitchell, 463 U.S. 206, 216-17 (1983). A plaintiff's prose status does not
relieve her of the obligation to demonstrate jurisdiction by a preponderance of the
evidence. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189
(1936) (explaining the plaintiff's responsibility for showing that the claim falls
within the court's jurisdiction); Henke v. United States, 60 F.3d 795, 799 (Fed. Cir.
1995) (noting that a plaintiff's status does not excuse defects in the complaint);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)
(stating that the burden of proof for establishing jurisdiction is by a preponderance
of the evidence).
Even if the plaintiff asserts claims that fall within the court's jurisdiction,
she must still present a valid claim on which the court can grant relief. See RCFC
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12(b)(6). Notably, "[w]hen considering a motion to dismiss a case for failure to state
a claim upon which relief can be granted pursuant to Rule 12(b)(6), a court accepts
all well-pled facts as true and draws all reasonable inferences in plaintiffs favor."
Silver Buckle Mines, Inc. v. United States, 117 Fed. Cl. 786, 791 (2014) (citing
Scheuer, 416 U.S. at 236; Pixton, 291 F.3d at 1326; Englewood Terrace Ltd. P'ship v.
United States, 61 Fed. Cl. 583, 584 (2004)). Granting a motion to dismiss a case for
failure to state a claim "is appropriate when the facts asserted by the claimant do
not entitle him to a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257
(Fed. Cir. 2002). Denial of the motion is warranted when the complaint presents
"sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. u. Twombly, 550 U.S. 544, 570 (2007)).
B. Analysis
1. Claims Against Defendants Other Than the United States
On the face of the complaint, it appears plaintiff seeks to bring suit against a
vast host of California officers, judges, attorneys, and other state personnel. Compl.
at 1. These include Placer County, the Placer County Department of Child Support
Service, Sacramento County, the Sacramento County Department of Child Support
Services, the Sacramento County Public Defender, at least one Sacramento County
healthcare professional, numerous state attorneys, the Citrus Heights Police
Department, the Sacramento Sheriffs Department, the Rancho Cordova Police
Department, the Department of Education/Folsom Cordova Unified School District,
school officials, a notary public, and unnamed individuals captioned as "DOES 1
through 500 inclusive." Id. ,i,i 22-133. 5
Notably, plaintiff does not list the United States as a defendant. As is
common in cases brought by pro se plaintiffs, Ms. Darling misunderstands the
purpose of this court's jurisdiction. The Tucker Act grants this court jurisdiction
over cases seeking damages against the United States government for claims
founded upon the Constitution, statutes, or regulations of the United States, as well
as damages for breaches of contracts with the United States. 28 U.S.C. § 1491(a)(l).
Even in cases where the United States is named as a defendant, Congress has
specifically withheld from our subject-matter jurisdiction cases for damages
sounding in tort or cases that allege crimes committed against the plaintiff. Id.;
Stanwyck v. United States, 127 Fed. Cl. 308, 312-14 (2016).
As Ms. Darling's complaint is directed at conduct by state officials and
private parties, this court lacks authority to hear the matter. Vlahakis v. United
5 Plaintiff names "DOES" 3 through 87, but fails to identify the other "DOES." See
Compl. ,i,i 49-132. Curiously, she even named her ex-husband, Michael James
Powell, as a "DOE defendant." Id. ,i 118.
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States, 215 Ct. CL 1018, 1018-19 (1978); see also Am base Corp. v. United States, 61
Fed. CL 794, 796 (2004) (explaining that this court lacks jurisdiction over private
parties). In general, "[t]his court does not have jurisdiction over any claims alleged
against states, localities, state and local government entities, or state and local
government officials and employees; jurisdiction only extends to suits against the
United States itself." Anderson v. United State, 117 Fed. Cl. 330, 331 (2014); see
also Trevino v. United States, 557 F. App'x 995, 998 (Fed. Cir. 2014) (explaining
that this court cannot hear claims against "states, localities, state and local
government officials, state courts, state prisons, or state employees."). In the
present case, plaintiff does not name the United States as a defendant. She only
names various individuals and state and local employees of California and several
of its counties. See Comp 1. Plaintiff's allegations thus fall outside our jurisdiction.
Plaintiff argues that the Office of Personnel Management, the Department of
the Treasury, the Department of Health and Human Services, the Department of
Education, and other federal agencies should be real parties in the present case
because they control (or should have control over) the various California defendants.
PL's Resp. ,r 14. But no action by a federal agency, nor any failure by a federal
agency to perform a required, money-mandating duty, is alleged. 6
Further, Ms. Darling would have this court review the correctness of state-
court decisions---as if this court were an appellate court. See, e.g., Comp 1. ,r,r 138,
144, 147-50, 163-81. Specifically, she is under the impression that this court has
an "exclusive or proper jurisdiction entitling [her] claims or causes" and is capable
of reviewing legal defects in California state and local court decisions. Pl.'s Resp.
,r 20. But this court has no such power. Our court is unable to review the
correctness of decisions by other courts. See Vereda, Ltda. v. United States, 271
F.3d 1367, 1375 (Fed. Cir. 2001) (citing Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994)); Robinson v. United States, 135 Fed. Cl. 556, 558 (2017);
Hernandez v. United States, 96 Fed. CL 195, 203 (2010) ("This court does not have
jurisdiction to review the decisions of [the state-court judge] who presided over
plaintiff's criminal case or related allegations of ineffective counsel during the
prosecution of plaintiff's criminal case."); Burlison v. United States, 75 Fed. Cl. 736,
741 (2007) (explaining that this court had no authority to review the disposition of a
state court domestic relations matter).
6 In limited situations, the federal government may be liable for the actions of state
agents, but this is not such a case. See Rose Acre Farms, Inc. v. United States, 373
F.3d 1177, 1196 (Fed. Cir. 2004) (noting that attribution of state acts to the federal
government "is proper ... only if the state officials were acting as agents of the
federal government or pursuant to federal authority.") (citing B & G Enterprises,
Ltd., v. United States, 220 F.3d 1318, 1323-24 (Fed. Cir. 2000). See also, e.g.,
Hassan v. United States, 41 Fed. CL 149, 150 (1998).
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Similarly, plaintiff appears to ask this court to set aside the judgments of
California state courts, presumably under RCFC 60(b). Compl. ,i,i 1-14. Plaintiff
misunderstands this rule, no doubt because she is proceeding without counsel.
Under RCFC 60, our court may only set aside one of its own prior judgments and
not those of other courts. Haddad v. United States, Nos. 15-640C & 15-820C, 2015
WL 7730933, at *2 n.6 (Fed. Cl. Nov. 30, 2015) (citing Carney v. United States, 199
Ct. Cl. 160, 162-64 (1972)).
Because she makes no allegation concerning anything done by any federal
actor, this case does not come within our court's jurisdiction. But even if the
allegations were somehow construed to implicate the United States government,
she has failed to allege a matter within our jurisdiction, as explained below.
2. Tort Claims
Plaintiff seems to allege tortious conduct in several instances. See Compl.
,i,i 211-65, 309-16 (complaining that various defendants engaged in battery, false
imprisonment, fraud and intentional deceit, negligence, the negligent infliction of
emotional distress, and the intentional infliction of emotional distress). Even if the
actions of these defendants could be attributed to the federal government, the
Tucker Act specifically withholds jurisdiction from this court over any claims
sounding in tort. 28 U.S.C. § 149l(a)(l); Khalil v. United States, 133 Fed. Cl. 390,
392 (2017). Indeed, the Federal Tort Claims Act vests only the United States
district courts with jurisdiction over tort claims against the United States---
including those for loss of property. 28 U.S.C. § 1346(b)(l); U.S. Marine, Inc. v.
United States, 722 F.3d 1360, 1366 (Fed. Cir. 2013). Thus, to the extent that Ms.
Darling argues that private individuals and agents and officers of the State of
California committed any of the torts she alleges, this court lacks jurisdiction to
hear such claims.
3. Criminal Claims
Plaintiff raises allegations of criminal conduct which include child abduction
and stalking. See Compl. ,i,i 201-10, 317-23. The Tucker Act, however, does not
give our court jurisdiction over criminal actions. See 28 U.S.C. § 149l(a)(l); Khalil,
133 Fed. Cl. at 392 ("This court, however, 'has no jurisdiction to adjudicate any
claims whatsoever under the federal criminal code."') (quoting Joshua, 17 F.3d at
379). While it is theoretically possible that Congress could place a money-
mandating statute in the criminal code, Stanwyck, 127 Fed. Cl. at 314, the Court is
unaware of any such provision, and plaintiff fails to cite any. Thus, insofar as Ms.
Darling alleges criminal conduct, this court lacks jurisdiction over those elements of
her complaint.
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4. Constitutional Claims
Plaintiff also asserts a variety of claims concerning a deprivation of
constitutional rights. For reasons discussed below, this court lacks jurisdiction to
entertain any of these claims.
Plaintiff argues that the state behavior underlying her claims "constitute
violations of rights to property and to due process under the U.S. Constitution,
Fourth, Fifth, Sixth, and Ninth Amendments." Compl. ,r 13. Elsewhere, plaintiff
asserts violations of her constitutional rights, civil rights, and human rights
generally. See id. ,r,r 8, 266-308. Some of her statements are conjectural and
hyperbolic. For example, she alleges her named defendants employed a "pattern
and practice of systematic human rights violations" in trying to collect debt, without
supporting this accusation. Id. ,r 8. The constitutional claims she asserts with the
greatest frequency are alleged violations of the Fourth Amendment right to freedom
from unreasonable search and seizure, id. ,r,r 267-69, 282, 284-85, 289, 293, 297,
304, 340, and the Fourteenth Amendment's equal protection clause, due process
clause, and "right to familial association," id. ,r,r 201-06, 212-17, 224-30, 252-58,
273-79,285, 289,293,297,304,340.
As is often the case when non-lawyers represent themselves in proceedings
brought in our court, Ms. Darling misunderstands the jurisdiction that Congress
has given us. Our court has not been empowered to opine on every matter involving
an alleged violation of a constitutional provision. Under the Tucker Act, 28 U.S.C.
§ 149l(a)(l), our jurisdiction is restricted to claims for money damages, and requires
"the identification of a money-mandating law which was allegedly violated by the
federal government." Stanwyck, 127 Fed. CL at 312 (citing Mitchell, 463 U.S. at
216-17). For jurisdiction to rest on the transgression of a constitutional provision,
that provision must mandate that money be paid to particular individuals if
violated. See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("To be
cognizable under the Tucker Act, the claim must be for money damages against the
United States, and the substantive law must be money-mandating."); see also
Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605 (holding that our
predecessor did not have jurisdiction over "every claim involving or invoking the
Constitution").
The Fourth, Sixth, Ninth, and Fourteenth Amendments lack money-
mandating provisions, thereby precluding this court's jurisdiction. Insofar as the
Fourth Amendment protects against searches and seizures, it is not money
mandating. See Milgroom v. United States, 122 Fed. Cl. 779, 800 (2015) (citing
cases that have consistently held that the Fourth Amendment is not money
mandating, thus depriving this court of jurisdiction over Fourth Amendment
claims). Neither are the Sixth, Ninth, or Fourteenth Amendments money-
mandating. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)
(Fourteenth Amendment); Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010)
. 8.
(Sixth and Ninth Amendments). 7 To the extent that plaintiff claims any violation of
the Fifth Amendment, she does not trace it back to any alleged violation committed
by the federal government for which money damages are mandated. Id. Thus, this
court lacks jurisdiction to hear plaintiff's constitutional claims.
Plaintiff moreover asserts that she and her children suffered from civil rights
violations (citing 42 U.S.C. § 1983), a conspiracy to interfere with civil rights (citing
42 U.S.C. § 1985), a widespread neglect by the named defendants to prevent civil
rights violations (citing 42 U.S.C. § 1986), and violations of California civil rights
law. CompL ,r,r 266-72, 280-308. Nevertheless, Section 1983 and its related
statutes do not confer jurisdiction on this court, even in claims against the United
States. See Khalil, 133 Fed. CL at 392 (noting that "[i]t is well established,
however, that § 1983 does not confer jurisdiction on the Court of Federal Claims
over claims against the United States") (quoting Johnson v. United States, No. 97-
5107, 1998 WL 39162, at *2 (Fed. Cir. Feb. 3, 1998)); see also Blassingame v. United
States, 33 Fed. CL 504, 505 (1995) ("Section 1983 is not a jurisdiction-granting
statute."). Indeed, these provisions do not even apply to the federal governPment.
See Hardin v. United States, No. 15-585C, 2015 WL 6437379, at *4 & n.5 (Fed. Cl.
Oct. 22, 2015) (noting that district courts have exclusive jurisdiction over claims
brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and that such provisions
"apply to actions of state and local, not federal, officials.") (emphasis in original). It
therefore follows that, even if plaintiff somehow attributed her civil rights claims to
misconduct by the United States---which she has not done---this court would still
lack jurisdiction over those claims.
5. Lanham Act Claims
Finally, plaintiff makes an unusual but creative claim that by using her
name without her permission, various non-federal defendants violated the Lanham
Act's prohibitions on false endorsement and unfair competition under Section 43(a).
CompL ,r,r 324-29; 15 U.S.C. §§ 1116, 1117, 1125(a). But Congress has not given
our court jurisdiction over Lanham Act claims. See Proxtronics Dosimetry, LLC v.
United States, 128 Fed. Cl. 656, 672 (2016) (citing, inter alia, 15 U.S.C. § 112l(a)).
In sum, plaintiff has failed to identify any violations of federal constitutional,
statutory, or regulatory provisions that mandate the payment of money by the
7 Moreover, the Fourteenth Amendment is not applicable to the federal
government. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.,
483 U.S. 522, 542 n.21 (1987) ("The Fourteenth Amendment applies to actions by a
State. The claimed association in this case is between the [United States Olympic
Committee] and the Federal Government. Therefore, the Fourteenth Amendment
does not apply.").
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United States government. Thus, the matters she raises are not within our court's
jurisdiction, and her case must be dismissed. 8
III. CONCLUSION
Even if everything that Ms. Darling alleges is true, there is nothing that our
court can do about it, as Congress has not given us jurisdiction to hear cases like
hers. Our court is unable to review the decisions of state courts, or to entertain
claims based on the actions of state or local governments or officials. Our power
extends to cases against the United States government for non-tortious violations of
federal laws that require the payment of money damages by the federal
government. See 28 U.S.C. § 1491(a)(l). Plaintiff has not alleged anything done by
the federal government, nor has she identified any money-mandating federal
provision that could support our jurisdiction. For these reasons, the government's
motion to dismiss this case for lack of subject-matter jurisdiction, under RCFC
12(b)(l), is GRANTED. The Clerk shall close the case.
IT IS SO ORDERED.
Senior Judge
8 Because the court lacks jurisdiction over plaintiffs case, there is no need to
address defendant's alternative ground for dismissal under RCFC 12(b)(6).
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