Roberson v. United States

ORI$ENAI
lln t\e @nite! btutts @ourt of fr[rsl @luims
FILED
No. 13-844C
(Filed: March 14,2014) MAri I 4 20i4

* t( :i * :t ** + ** + ***** r! * * * * * * * * *'t *,t * * * * * * * * + U.S. UUUft-f OF
FEDERAL CLAIMS
CAROLSUEROBERSON, *
,. RCFC l2(b)(l); RCFC l2(b)(6);
Plaintiff, 17 U.S.C. $ 411; Copyright
Registration Before Filing Suit
Requirement; No Jurisdiction Over
THE LINITED STATES, Tort Claims; Contmct Formation;
* Pro Se Plaintiff
Defendant. *
+ :t,i * * * *,t* * * * * * * * * * * * * * * * * + * * *,1 * * :* * * * * *

Carol Sue Roberson. Alto. GA, pp se.

Meen Geu Oh, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

In this action, plaintiffcarol Sue Roberson seeks to recover damages based on what she
claims was a wrongful response from the Federal rrade commission fFTc') when she
submitted an entry in an FTC-sponsored contest. Because the court lacks jurisdiction over a
portion of plaintiff s complaint and because plaintiff fails to state a claim upon which reliefcan
be granted for the remainder ofthe complaint, the court dismisses plaintiff s complaint.

I. BACKGROUND

As part of the America COMPETES Reauthorization Act of 2010, federal agencies "may
carry out a program to award prizes competitively to stimulate innovation that has the potential
to advance the mission of'the agency. 15 u.s.c. S 3719 (2012). The FTC took advantage of
this authorization to create the "FTC Robocall challenge," in which the public would ,.cr-ate
innovative solutions that [would] block illegal robocalls on landlines and mobile phones." Def.'s
Mot., Ex. I at I (FTC Robocall challenge official Rules). The agency offered a$50,000 p.ze
to the "Best overall Solution." ld. at7. The FTC also outlined in its rules that, to enter the
contest, a contestant needed to visit the "Robocall challenge" website, register by providing an
electronic-mail address, and submit the proposal though the website. Id. at 2_3.

Plaintilris currently incarcerated in a Georgia state prison. In her complaint, plaintiff
alleges that she became aware ofthe FTC's contest when she read an advertisement in the
Macon Georgia Teleqraph. compl.'!l 17. plaintiffclaims that she submitted an entry in the
competition by mailing a one-page document to the FTC's Atlanta, Georgia office, outlining
what she calls in her complaint a proposal for "I.S.C.O.N. (lntelligent, [Satellites],
Communications, Offensive Network)." Id. fl!] 11, 17. Plaintiff admits that she mailed this
submission to, rather than filing it electronically with, the FTC, id. fl 11, and that because the
FTC expected the submissions to be submitted electronically, her document was sent to the
FTC's Consumer Response Center, part of the Bureau ofConsumer Protection, see id. tf l7.l

Upon receipt of plaintiff s document, the FTC wrote to plaintiff notifying her that,
because it was classi$ing her document as a consumer complaint, the document would be
entered into a "Global Secure Online Publication to all global law enforcement agencies," via the
FTC's online consumer complaint database.' See id. Plaintiff became uneasy with the inclusion
of this document in the database, and wrote to the FTC to express her concem that her secret
solution to blocking robocalls had been broadly published without her consent. Id. Plaintiff
alleges in her complaint that when she tded to air her concems within the Georgia prison, she
was refused a grievance process. Id. fl 14. She alleges that "all queries, questions[, and] pleas"
to defendant and the prison were "unresponsive, then legalistically diverted, and falsified, and
blatantly tenacious." ld. lJ 15.

Unhappy with the FTC's handling of the dispute, on October 28,2013, plaintiff liled suit
in this court. In her complainl, plaintiff alleges copyright infringement under 28 U.S.C.
$ 1498(b), a right to an accounting under 28 U.S.C. S 1494, violations of Title V ofthe Ethics in
Govemment Act of 1978, 5 U.S.C. $$ 501-505, violations of the Fourth Amendment's
protections against unreasonable search and seizure, violations of the Fifth Amendment's Due
Process Clause, violations ofunspecified individual rights reserved by the Ninth Amendment,
and, impliedly, a breach of contract. See Compl. llu 2-9. Plaintiff filed a motion requesting that
the court appoint counsel to represent her in this proceeding and an application to proceed in
forma pauperis. Plaintilfalso filed a document requesting an update on her request for
appointment ofcounsel and on her request to file supporting evidence with the court, which the
court accepted as filed on January 2,2014.

On January 31,2014, defendant filed a motion to dismiss plaintiff s complaint for lack of
jurisdiction pursuant to Rule 12(b)(l) ofthe Rules of the United States Court of Federal Claims
C'RCFC). Plaintiff filed a response on February 18,2014, and defendant filed a reply on March
8,2014. Oral argument is unnecessary.

' According to defendant, plaintiff mailed her submission,.to the FTC's Southeast
Regional Office in Atlanta, [Georgia], which had no involvement" with the contest, and thus
defendant construed plaintiff s communication as a consumer complaint. Def.'s Mot. 2 n.3.
While plaintiff argues in her response that it was clear that her mailing was a submission to the
contest, the actual place where it was sent is inelevant for the purposes of this ruling.

2
In its motion, defendant represented to the court that the FTC has removed "all conrents
submitted by" plaintiff from the consumer complaint database. Def.'s Mot. 3 n.4.
 II. LEGALSTANDARDS

A. Pro Se Plaintiffs

A pro se plaintiffcomplaint, "'however inartfully pleaded,'must be held to ,less
s
stringent standards than formal pleadings drafted by lawyers' . . . ." Hughes v. Rowe,449 U.S.
5, 10 n.7 (1980) (quoting Haines v. Kerner, 404 U.S. 519,520-21 (1972) (per curiam)). Courts
have "strained [their] proper role in adversary proceedings to the limit, searching . . . to see if
plaintiffhas a cause of action somewhere displayed." Ruderer v. united states,4l2F.2dl2g5,
1292 (ct- cl. I 969). Although plaintiffs pleadings are held to a less stringent standard, such
leniency "with respect to mere formalities does not relieve the burden to meet iurisdictional
requirements." Minehan v. united States, 75 Fed. c|.249,253 (2007)l see also Kellev v. Sec'y.
u.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. cir. 1987) C'tAl court may nor similarly rake a
liberal view of that jurisdictional requirement and set a different rule for pro se litigants only.");
Bernard v. United Srares, 59 Fed. cl. 497 , 499 (2004) (noting that pgq se plaintiffs are not
excused from satisfying jurisdictional requirements), affd,98 F. App'x g60 (Fed. Cir.).

B. Subject Matter Jurisdiction
Defendant moves to dismiss plaintiff s claims for lack ofjurisdiction pursuant to RCFC
12(bX1), contending that this court lacks jurisdiction over the causes ofaction alleged in the
complaint. Whether the court possesses jurisdiction to decide the merits ofa case G a threshold
matter. see steel co.v. citizens fora Better Env't. 523 u.s. g3, 94-95 (199g); see also
Matthews v. united states,72Fed. cL 274,279 (2006) (subject matter jurisdiction is .an
inf'lexible matter that must be considered before proceeding to evaluate the merits of a case',).

In ruling on a motion to dismiss, the court generally assumes that the allegations in the
complaint are true and construes those allegations in the plaintiffs favor. tlenke v. united
States, 60 F.3d 795, 797 (Fed. cir. 1995). However, ifthe defendant th" fuctuul basi,
ofthe court's jurisdiction, contested allegations in the complaint are not contiolling. Cedars-
"hulletrg"s
Sinai Med. crr. v. warkins, 1l F.3d 1573, 1583 (Fed. cir. ill:;.
n" court may tf,ergfore look
to evidence outside the pleadings to determine the existence ofjurisdiction. Land v. Dollar,330
u s. 731, 735 &n.4 (1974). If the court finds rhat it lacks jurisdi"tion ou", a-iifi, tf,i *u.t
must dismiss it. Ex parte Mccardle, 74 u.s. (7 wall.) 506,514 (1g6g) (,,without jurisdiction
rhe
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, ind when it
ceases to exist, the only function remaining to the court is that of announcing the fact
and
dismissing the cause."). The parties. or the coun sua sponte, may challenge-the court-s subject
matter jurisdiction a1 any rime. Arbaush v. y & H Corp., 546 U.S. 500, 5b6 (2006).

C. Failure to State a Claim Upon Which Relief Can be Granted

. "A complaint must be dismissed under Rule 12(bX6) when the facts asserted do not give
rise to a legal remedy." Indian Harbor Ins. co. v. United States,704F.3dg49,954 (Fed. cir.
2013) (citing Lindsav v. United States,295 F.3d 1252, 1257
€;d. Cir. 2002)). ,,When
considering an RCFC 12(bX6) motion, the court "must determine ,whether the claimant is
entitled to offer evidence to support the claims,' not whether the claimant will ultimately
 prevail." Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934,938 (Fed. Cir. 2007)
(quoting Scheuer v. Rhodes, 416 U.S. 232,236 (1974), ovenuled on other erounds by Harlow v
Fitzserald,45T U.S.800,814-19 (1982). "A motion made under Rule l2(bX6) challenges the
legal theory ofthe complaint, not the sufficiency ofany evidence that might be adduced."
RhinoCorps Co. v. United States, 87 Fed. Cl.481,492 (2009).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim ofreliefthat is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (2006)).
"Deciding whether a complaint states a plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense." Id.
at679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. at 678 (citing Twombly, 550 u.s. at 556). Neither allegations "tlat are 'merely consistent
with' a defendant's liability," nor "[t]hreadbare recitals of the elements ofa cause ofaction,
supported by mere conclusory statements," are sufficient. Id.

"The court assumes all well-pled factual allegations are true and indulges in all
reasonable inferences in favor ofthe nonmovant." Ten), v. United States, 103 Fed. C\.645,652
(2012) (citing United Pac. Ins. co. v. United States,464F.3d 1325,1327-28 (Fed. cir. 2006)).
The court is "not bound to accept as true a legal conclusion couched as a factual allegation."
Twomblv, 550 U.S. at 555. A failure to allege a cause of action upon which relief can be granted
warrants a j udgment on the merits rather than a dismissal for want ofjurisdiction. Litecubes.
LLC v. N. Lisht Prods.. Inc.,523 F.3d 1353, l36l (Fed. Cir. 2008).

III. DISCUSSION

A. In Forma Pauperis Applications

As a threshold matter, plaintiff filed, together with her complaint, an application to
proceed in forma pauperis. Pursuant to 28 u.s.c. $ 19l5,courtsof the United States are
permitted to waive filing fees and security under certain circumstances. See 2g U.S.c.
$ 1915(a)(l ) (2012); see also Hayes v. united states, 71 Fed. cl. i66,366-67 (2006) (concluding
that 28 U.S.c. g 1915(a)(1) applies to borh prisoners and nonprisoners alike). while the United
states court ofFederal claims ("court ofFederal claims") is not generally considered to be a
court of the United States within the meaning of title 28 of the United States Code. the court has
jurisdiction to grant or deny applications to proceed in forma pauperis. See 2g U.S.c. 2503(d)
$
(deeming the Court of Federal Claims to be a court of the United States for the pumosei of 28
u.s.c. $ 1915); see also Matthews,T2Fed. cl. at277-79 (recognizing that congress enacted the
Court of Federal claims Technical and Procedural Improvements Act of 1992, authorizing the
court to, among other things, adjudicate applications to proceed in forma p4gpglg pursuant to 2g
u.s.c. $ 19ls).

Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all of
their assets, declares that they are unable to pay the fees or give the security, and states the nature
of the action and their beliefthat they are entitled to redress. 28 U.S.C. $ l9l5(a)(l). Here,
plaintiff has met all three requirements. The court, therefore, grants plaintiff s application.'

B. Jurisdiction

l. Review of Complaint Pursuant to 28 U,S.C. $ f 9l5A

Section 19154, oftitle 28 ofthe United States Code requires that the court screen a
complaint in a civil action in which a prisoner seeks redress from a govemmental entity, or an
officer or employee of a govemmental entity. Id. $ 1915A(a). The court must, upon review,
identifr cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or
"seeks monetary relief from a defendant who is immune from such relief." Id. $ l9l5A(bX1)-
(2). Pursuant to section 1915A, the court has undertaken a screening review of plaintiff s
complaint and, as discussed more fully below, dismisses the complaint because the allegations
asserted therein are frivolous or because plaintiff fails to state a claim upon which relief may be
sranted,

2. The Court Lacks Jurisdiction Over Plaintiff s Claims Brought Under
s u.s.c. $s s0l-sOs

First, the court must dismiss the claims that plaintiff brings under 5 U.S.C. $$ 501-505.
The Tucker Act provides this court with 'Jurisdiction to renderjudgment upon any claim against
the United States founded either upon the constitution, or any Act ofcongress or any regulation
ofan executive department, or upon any express or implied contract with the United states, gr
for liquidated or unliquidated damages in cases not sounding in tort.,' 28 U.S.C. $ la91(aXl).
The Tucker Act "is itselfonly ajurisdictional statute; it does not create any substantive right
enforceable against the United States for money damages." United States v. Testan , 424lJ .5.
392, 398 ( 1976). Rather, "a plaintiff must look elsewhere for the source of substantive law on
which to base a Tucker Act suit against the united states." Martinez v. united states, 333 F.3d
1295,1303 (Fed. Cir.2003) (en banc). This source ofsubstantive law is termed,,money-
mandating." Id. A statute is money-mandating if it "can fairly be interpreted as mandating
compensation by the Federal Govemment for the damages sustained." United States v. Mitchell,
463 U.S. 206,218 (1983). Title V of the Ethics in Government Act of 1978, 5 U.S.C.
$$ 501-
505, does not meet this money-mandating test, as Title v only creates restrictions on outside
employment and nonsalary income of federal govemment employees. The Act's enforcement

3
Although the court grants plaintiff s application to proceed in fofina pauoeris, plaintiff
shall be assessed, pursuant to section l9l5(b)(l), an initial partial filing fee comprising iwenty
percent ofthe greater of(l) the average monthly deposits into her account, or (2) the amount
representing the average monthly balance in plaintiff s account for the six-month period
immediately preceding the filing of her complaint. Thereafter, plaintiff shall be required to make
monthly payments of twenty percent ofthe preceding month's income credited to her account.
The agency having custody of plaintiffs account shall forward payments from plaintiffs account
to the clerk ofcourt each time the account balance exceeds $10.00, and until such time as the
filing fee is paid in full. See 28 U.S.C. $ 1915(b).
mechanism is provided by the authorization offines and penalties, imposed and payable to the
govemment. See id. 503. The Act does not authorize private individuals to bring suit to enforce
these restdctions if a govemment employee violates its provisions, much less mandate
compensation to a private citizen for such violation. Id. Accordingly, the act cannot be read as
being money-mandating, and consequently the court dismisses plaintiff s claims to the extent
they rely upon 5 U.S.C. $$ 501-505.

3. The Court Lacks Jurisdiction Over Plaintiffs Claims Based on the Fourth, Fifth, and
Ninth Amendments

Second, plaintiff alleges that the FTC violated the Fourth, Fifth, and Ninth Amendments
in its handling and consideration of her I.S.C.O.N. submission, in its inclusion of the submission
in a govemment consumer protection database, and in its response to her grievances. However,
in order for the Court of Federal Claims to have j urisdiction, the constitutional provision upon
which the claims rely must be money-mandating in that it would provide for monetary damages
as a remedy for the violation. Martinez, 333 F.3d at 1302-03 James v. Caldera, 159 F.3d 573,
581 (Fed. Cir. 1998). The Fourth Amendment is not money-mandating. Brown v. United States,
105 F.3d 621,623 (Fed. Cir. 1997). Nor is the Fifth Amendment's Due Process Clause, upon
which plaintiff also relies. James, 159 F.3d at 581. Finally, the Ninth Amendment does not
provide for the payment ofmoney damages, and thus this court lacks j urisdiction over plaintiffs
claims pursuant to that Amendment. Ro),ce v. United States, 1 Cl. Ct. 225,226 (1952),

C, Failure to State a Claim
Defendant has moved to dismiss all of plaintiff s claims pursuant to RCFC l2(bX1).
However, as discussed more fully below, the court clearly has jurisdiction over some ofthe
causes ofaction alleged in the complaint and cannot dismiss them pursuant to RCFC l2(bxl).
In its discretion, the court may convert defendant's motion into a RCFC l2(b)(6) motion to
dismiss for failure to state a claim upon which relief can be granted. Bryce v. Episcopal church
in the Diocese of colo., 289 F.3d 648,654 (1Oth cir. 2002) ("The crucial element is the subiect
of the motion, not wherher it is labeled a Rule l2(b)(l) motion rather than a 12(b)(6).,'); Fraternal
988 F. Supp.70l,704
n'2 (S.D.N.Y. 1997) (converting a motion to dismiss for lack ofjurisdiction to a motion to
dismiss for failure to state a claim after finding there would be no prejudice to either party, given
that both parties had an opportunity to be heard and brief whether they had stated a claim); see
also w & D Ships Deck works. Inc. v. united States, 39 Fed. cl. 638, 348 (1997) (noting that
sua sponte dismissal on RCFC 12(b) grounds is appropriate where "the pa(ies were provided
ample notice and opportunity to be heard"). In this instance, plaintiff filed her opposition on
February 18,2014, in which she responded to defendant's arguments that the case should be
dismissed because she could not prove all elements ofher causes ofaction.

1. Plaintiff Has Not Registered Her Copyright

Plaintiff alleges that the publication ofher FTC contest submission in an online database
amounted to copyright infringement by the government, see compl. nn2, n, a claim over which
this court has jurisdiction under 28 u.s.c. $ l49s(b). To maintain an infringement suit,
 however, a plaintiff must first satisf a procedural prerequisite; that is, a party must register his
or her copyright with the United States Copyright Office. 17 U.S.C. $ 411(a). Registration is a
required element that a plaintiffmust prove to recover for infringement. Reed Elsevier. Ins. v.
Muchnick, 559 U.S. 154, 166 (2010); Gralton v. United States, 92 Fed. Cl. 327 ,338 (2010).
Nowhere in plaintiff s complaint does she allege that she has registered or followed the
requirements for preregistering the copyright, and none ofthe exceptions to registration set forth
in section 4l 1 apply. See Reed Elsevier,559 U.S. at 165 (explaining that there are at least three
exceptions where a court hasjurisdiction to decide issues of infringement despite a lack of
preregistration ofthe copyright and enumerating them as (1) where the work is a foreign work,
(2) the suit is over attribution rights or integrity under section 1064, and (3) where registration
was refused). while plaintiff alleges in her complaint and response that she has suffered
damages due to the placement ofher submission in a govemment database, plaintiffis required
to plead and support all elements of a cause of action. Plaintiff has not claimed that she has
registered her copyright or that she is in the preregistration process. Accordingly, the court must
dismiss plaintiff s copyright infringement claim for failure to state a claim upon which reliefcan
be granted. see Hvperouest. Inc. v. N'site Solutions. Inc.,632F.3d377,391(7thcir.200l)
(holding that failure to register a copyright prior to filing suit requires dismissal under Rule
12(bX6) for failure to state a claim upon which reliefcan be granted).

2. The Court Dismisses plaintiff s Claims Under 23 U,S.C, g 1494

- 1494.Plaintiffnext alleges that defendant violated her right to an accounting under 2g U.s.c.
$ Section 1494 provides this court with "jurisdiction to determine the amount, ifany, due
to or from the united states by reason of any unsettled account ofany officer or agent of, or
contractor with, the United States" when (l) the claimant has applied to defendanifor settlement,
(2) three years has elapsed since the application without settlemint, and (3) no suit has
been
brought elsewhere. 28 U.S.C. $ 1494. Plaintiffhas not alleged that she meets any of these three
conditions, and indeed, she cannot. Plaintiff has not allegedthat she is an officer, agent of, or
contractor with the United States. The period for submission of contest entdes concluded on
January 17, 2013, less than one year before plaintiff filed her complaint in this court and well
within the three years that must elapse between applying for settlement and bringing suit. See
Def.'s Mot., Ex. 1 at2. And, plaintiffdoes not claim that she has an unsettled u."ount.
Accordingly, the court must dismiss plaintiff s claims under 28 U.S.C. 1494 for failure to state
$
a claim upon which relief can be granted.

3. No Contract Was Formed
Lastly, to the extent that the plaintiff alleges that defendant is liable to her for a breach of
contract, plaintiffs claim must fail. The court possesses jurisdiction under the Tucker Act
fbr
breach of contract claims, 28 u.s.c. $ 1a91(a)(l), and it is well settled that the Tucker
Act itself
is money-mandating with respect to breach ofcontract actions. Holmes v. United
states, 657
F3d 1303, 13l3-'14 (Fed. cir.20ll.). However, plaintiff fails to ult"g"Ei.*i.t"r,"" oru
contract between the parties. To find the existence of a contract, theie must be ..( I mutuality
) of
mtent to contract; (2) consideration; (3) unambiguous offer and accaptance; and (4) actual
-Flexfab.
authority on the part of the government's represenlative to bind the government.,;
L.L.C. v. United States , 424 F .2d 1254, 1265 (Fed. cir. 2005). plaintiff has not alleeed that
these conditions have been met with respect to her relationship with defendant. Plaintiff argues
in her response that the advertisement of the contest she saw in the Macon Georgia Teleeraph did
not require that the entries be submitted only by electronic means, and therefore her mailing of
her submission constituted an acceptance ofdefendant's offer to enter into a contract. Plaintiff is
incorrect. The publication of an advertisement informing the public of a government contest
invites offers from the public to enter the contest, the response by the entrant constitutes an olfer
by their conduct, and the decision by defendant to select a winning enfant and pay the award is
the acceptance of the offer. See Kruq v. United States, 168 F.3d 1307,l3}g (Fed. Cir. 1999)
(discussing process by which a confact would be formed to award a reward when an informer
submits inlormation on a tax cheat); see also Gm. One Ltd. v. Hallmark Cards. Inc.,254F.3d
1041, 1048 (Fed. Cir. 2001) ("[C]ontract law traditionally recognizes that mere advertising and
promoting ofa product may be nothing more than an invitation for offers, while responding to
such an invitation may itselfbe an offer."). Plaintiffs purported entry must be considered the
ofler.

The oflicial contest rules required all contestants to create an online account and submit
their proposals through that account. Def.'sMot.,Ex. 1at3-4. plaintiffdid not do so. Instead
she mailed her submission, and therelore no offer was actually made by plaintiff that would
comply with the official contest rules. As such, defendant never accepted plaintiffs offer to
enter the contest. In addition, because defendant never selected plaintiffs submission as a
winning entry, the government did not accept her purported offer. without both offer and
acceptance, no contract could be formed between the parties. Accordingly, plaintiffs breach of
contract claims, ifany, must be dismissed pursuanl to RCFC 12(b)(6) for failure to state a claim
upon which relief can be granted.

IV. CONCLUSION
For the reasons set forth above, the court GRANTS defendant's motion to dismiss and
DIIMISSES plaintiff s complaint for lack ofjurisdiction and for failure to state a claim upon
which relief can be granted. consequently, plaintiffs motions for appointment of counsel and
for leave to file supporting evidence are DENIED as moot. In addition, the court GRANTS
plaintiff s application to proceed in forma pauperis, but directs plaintiffto pay the filing fee in
full pursuant to 28 U.S.C. $ l9l5(b), as previously described infootnote:. ttre clerk ii directed
to enterjudgment accordingly. No costs.

IT IS SO ORDERED.