ORIGINAL
3Jn tbe Wniteb ~tates ourt of jfeberal <!Claims
No. 14-1241C
(Filed July 31, 2015)
NOT FOR PUBLICATION
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* FILED
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THOMAS E. BOWLES III, * JUL 31 2015
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Plaintiff, * U.S. COURT OF
FEDERAL CLAIMS
v. *
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THE UNITED STATES, *
*
Defendant. *
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MEMORANDUM OPINION AND ORDER
WOLSKI, Judge .
Pending before the Court is defendant's motion to dismiss the case pursuant
to Rules 12(b)(l) and 12(b)(6) of the Rules of the United States Court of Federal
Claims (RCFC). For the reasons set forth below, this court lacks jurisdiction over
plaintiffs claims, and defendant's motion to dismiss the case is accordingly
GRANTED.
I. BACKGROUND
The plaintiff in this case, Mr. Thomas E. Bowles III, alleges that a Watervliet
(N.Y.) City Court judge permitted three tenants to occupy apartments he owned,
from 2003 until March 2005, without paying rent. Compl. at 2, 4. Mister Bowles
claims damages resulting from the destruction of the property, unpaid rents, and
garbage fines. Id. at 2, 4, 5. The failure of the Watervliet judge to protect Mr.
Bowles and his property allegedly caused "[his] income, home, and life [to be]
sabotaged." Id. at 5. His total claim amounts to $1,080,000, including "treble
damages for destroying [his] life." Id. at 5.
Plaintiff also complains of an in rem back tax foreclosure proceeding held on
October 28, 2008, by a state judge in Albany County. Id. Mister Bowles contends
that the "back tax foreclosure was done wrong because [the] amount of $29,000
[was] wrong." Compl. at 2, 5; Def.'s Mot. to Dismiss (Def.'s Mot.) at 3.
Consequently, he alleges that the State of New York wrongfully foreclosed on his
home and violated due process oflaw. Compl. at 5. A New York State appellate
court dismissed plaintiffs appeal of this foreclosure decision in 2012. Def.'s Mot. at
3. Plaintiff unsuccessfully challenged the state actions in the U.S. District Court for
the Northern District of New York, and appealed this decision without avail in the
U.S. Court of Appeals for the Second Circuit. Compl. at 3, 8; see also Exs. to Compl.,
ECF No. 1-2 at 1, 7, 19. The sources of jurisdiction and substantive law cited by
plaintiff include 28 U.S.C. § 1331, 42 U.S.C. § 1983, "constitutional rights,'' the "Bill
of Rights,'' the Fifth and Fourteenth Amendments, and Bivens v. Six Unknown
Narcotics Agents, 403 U.S. 388 (1971). Compl. at 3, 8. In addition to money
damages, Mr. Bowles requests an "extraordinary writ of prohibition,'' which he
claims to "be in aid of' our purported "appellate jurisdiction." Id. at 8.
Defendant seeks to have this case dismissed pursuant to RCFC 12(b)(l) and
12(b)(6), for lack of subject matter jurisdiction and failure to state a claim for relief,
respectively. Def.'s Mot. at 1. The government argues first, that this court has no
jurisdiction over matters where the United States is not the defendant. Def.'s Mot.
at 8. Second, the government explains that this court does not have jurisdiction to
"review the decisions of the Federal district courts or of the United States Court of
Appeals for the Second Circuit." Id. Third, the government asserts that the
referenced statutes and constitutional provisions in the complaint do not provide
this court with jurisdiction. Id.
Alternatively, the government moves for dismissal under RCFC 12(b)(6) for
failure to state a claim upon which relief can be granted. Def.'s Mot. at 10. The
government argues that Mr. Bowles's complaint is "nothing more than an attempt
to challenge a Federal court decision that rejected his claims against non-federal
entities or non-Federal employees." Id. at 10-11.
Plaintiff has filed an opposition to the motion, arguing that the district court
deprived him of property without due process and in violation of its federal question
jurisdiction under 28 U.S.C. § 1331. Pl.'s Resp. to Mot. at 1, ECF No. 7. His theory
appears to be that, although the City of Watervliet "is responsible" for his loss of
rent payments and, ultimately, his house, the United States is also responsible
because the district court, Second Circuit, and apparently the Supreme Court did
not protect his constitutional rights. Id. at 2-3. Mister Bowles was also allowed to
file a sur-reply, in which he conclusorily stated that our court has mandamus
jurisdiction, and contended that Bivens may be the basis for our Tucker Act
jurisdiction. Pl.'s Sur-reply at 1, ECF No. 11. Plaintiff also complained that the
district court judge recently refused his request for a status conference, which he
avers is a further due process violation. Id. In its responses, the government
argued that neither paper filed by Mr. Bowles established a basis for our court's
jurisdiction. Def.'s Reply at 2-4; Def.'s Resp. to Pl.'s Sur-reply at 1-3.
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II. DISCUSSION
A. Legal Standards
Under RCFC 12(b)(l), this Court must dismiss a claim over which it lacks
subject-matter jurisdiction. Our court's "power to adjudicate in specific areas of
substantive law" is properly challenged by a RCFC 12(b)(l) motion. Palmer v.
United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999). When considering a motion to
dismiss for lack of subject-matter jurisdiction, courts will normally accept as true all
factual allegations made by the pleader 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); CBY Design
Builders v. United States, 105 Fed. Cl. 303, 325 (2012).
While a prose plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court's jurisdiction from being dismissed. See, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991). Here, despite being a prose litigant, Mr.
Bowles's pleadings must show that one or more of his claims falls within the
jurisdiction of this court if he is to avoid dismissal.
The subject-matter jurisdiction of the Court of Federal Claims is primarily
set out in the Tucker Act, which grants "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)(l) (2012). Because the Tucker
Act itself does not create a substantive cause of action, however, "in order to come
within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must
identify a separate source of substantive law that creates the right to money
damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). In United
States v. Mitchell, 463 U.S. 206 (1983), the Supreme Court explained:
Not every claim invoking the Constitution, a federal statute, or a
regulation is cognizable under the Tucker Act. The claim must be one
for money damages against the United States, and the claimant must
demonstrate that the source of substantive law he relies upon "can
fairly be interpreted as mandating compensation by the Government
for the damages sustained."
Id. at 216-17 (quoting Testan, 424 U.S. at 400) (internal citations omitted).
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Under RCFC 12(b)(6), this court must dismiss a claim when the plaintiff fails
to state a claim upon which relief may be granted. As explained above, if the
substantive provision under which the claim is brought is not money-mandating,
then the claim shall be dismissed for lack of subject-matter jurisdiction under Rule
12(b)(l). Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). If the
plaintiff invokes a money-mandating provision, but the facts as pled do not fit
within the scope of that law, however, the court shall dismiss the claim on the
merits under RCFC 12(b)(6). Id. "To survive a motion to dismiss, a complaint must
contain 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. v. Twombly, 550 U.S. 544, 570 (2007)). In order to meet the requirement of
facial plausibility, the plaintiff must plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. (citing Twombly, 550 U.S. at 556). When considering a motion to
dismiss under RCFC 12(b)(6), the court is bound to accept the well-pleaded factual
allegations of the complaint as true. Iqbal, 556 U.S. at 678. The court is not bound
to accept as true mere '"labels and conclusions"' or "'a formulaic recitation of the
elements of a cause of action."' Id. (quoting Twombly, 550 U.S. at 555).
B. Analysis
A court's analysis begins with an examination of the question of jurisdiction.
See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("[T]he first and
fundamental question is that of jurisdiction."). If a court finds that it lacks
jurisdiction, then there is nothing for the court to do but dismiss the case. See id.
(quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)) ("Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.").
1. Defendants Other Than the United States
Mister Bowles appears to be asserting claims against a Watervliet City Court
judge, Compl. at 8-9, an Albany County judge, id. at 2-4, and Albany County's
Department of Taxation and Finance, id. at 9. But under 28 U.S.C. § 1491(a)(l),
the Court of Federal Claims has "jurisdiction to render judgment upon any claim
against the United States." It is well settled that the United States is the only
proper defendant in the United States Court of Federal Claims. See RCFC lO(a)
(requiring that the United States be designated as the defendant in the Court of
Federal Claims); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) ("[T]he
only proper defendant for any matter before this court is the United States, not its
officers, nor any other individual."). We have no jurisdiction over claims brought
against state or local governments or their officials. See Souders v. S. C. Pub. Serv.
Auth., 497 F.3d 1303, 1308 (Fed. Cir. 2007); Gharb v. United States, No. 12-911C,
2013 WL 4828589, at *6 (Fed. Cl. Sept. 9, 2013).
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To the extent plaintiff seeks to bring claims against state and local entities
and officials, these claims must be dismissed as beyond our jurisdiction. Vlahakis v.
United States, 215 Ct. Cl. 1018, 1018 (1978). And claims against federal judges
must be considered as brought against the United States, not the individuals
identified in the complaint. Brown v. United States, 105 F.3d 621, 624 (Fed. Cir.
1997) ("The Tucker Act grants the Court of Federal Claims jurisdiction over suits
against the United States, not against individual federal officials.")(citing 28 U.S.C.
§ 1491(a)); Pikulin v. United States, 97 Fed. Cl. 71, 75 (2011) (citing United States v.
Sherwood, 312 U.S. 584, 588 (1941)).
2. Civil Rights Claim under 42 U.S. C. § 1983
Plaintiff cannot establish jurisdiction in our court based on a violation of 42
U.S.C. § 1983. He appears to be asserting that the State of New York was the
entity which deprived him of rights protected by this statute. See Compl. at 3. But,
as discussed above, the State of New York is not a proper defendant in this forum.
Moreover, jurisdiction under Section 1983 lies exclusively in the district courts.
Cunningham v. United States, 479 F. App'x 974, 975 (Fed. Cir. 2012) (citing
Hernandez v. United States, 93 Fed.Cl. 193, 198 (Fed. Cl. 2010)) (dismissing suit for
claims under 42 U.S.C. § 1983); Hover v. United States, 113 Fed. Cl. 295, 296 (2013)
aff'd, 566 F. App'x 918 (Fed. Cir. 2014) ("[T]he ability of the Court of Federal Claims
to entertain suits against the United States is limited. Plaintiffs claims generally
arise under 42 U.S.C . § 1983, but the court lacks jurisdiction to consider claims
under that statute."); Jefferson v. United States, 104 Fed. Cl. 81, 89 (2012) ("[T]he
court does not have subject matter jurisdiction over actions arising under sections of
the Civil Rights Acts, including 42 U.S.C. § 1983, § 1985, and§ 1988 (2006) .... ");
Marlin v. United States, 63 Fed. Cl. 475, 476 (2005). And, in any event, section
1983 is directed toward the actions of state, not federal, officers, see Griffith v.
United States, No. 14-793C, 2015 WL 1383959, at *2 (Fed. Cl. Mar. 20, 2015), and
thus has no relation to any claims against the proper defendant in this case --- the
United States.
3. Review of Federal District and Appellate Court Decisions
Mister Bowles mistakenly seeks a writ of prohibition "in aid of this Court's
appellate jurisdiction because ... the Northern [D]istrict of New York as well [as]
the 2nd Circuit Court all ignored the laws to protect [his] 5th and 14th Amendment
rights." Compl. at 8; Def.'s Mot. at 5, 10. But our court is not an appellate tribunal,
and "does not have jurisdiction to review the decision of district courts." Vereda,
Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001); see also Joshua v.
United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Nor do we have jurisdiction to
review the decisions of federal Courts of Appeal. See Bafford v. United States, No.
09-030, 2009 WL 2391785, at *4 (Fed. Cl. Aug. 3, 2009).
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4. 28 U.S.C. § 1331
Plaintiffs asserts federal question jurisdiction under 28 U.S.C. § 1331 for
claims "arising from violations of federal constitutional rights guaranteed in the
14th Amendment to the U.S. Constitution." Compl. at 3. Mister Bowles claims that
two judges of the United States District Court for the Northern District of New York
"failed [him] under [28 U.S.C. § 1331]." Compl. at 3. Section 1331, however,
provides only federal district courts with jurisdiction, stating: "The district courts
shall have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C. § 1331 (2012). The provision does
not confer jurisdiction upon our court, see Faulkner v. United States, 43 Fed. Cl. 54,
55 (Fed. Cl. 1999), nor does it mandate the payment of money for its alleged
violation. Section 1331 cannot be used to establish our jurisdiction over Mr.
Bowles' s case.
5. The Fifth and Fourteenth Aniendments to the Constitution
While Mr. Bowles variously refers to violations of his constitutional rights,
see Com pl. at 2, 4, 5, his only specific citations are to the Due Process clauses of the
Fifth and Fourteenth Amendments, id. at 3, 8. But the constitutional provisions
guaranteeing due process are not money mandating. LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed. Cir. 1995) (stating that the Due Process clauses of the Fifth
and Fourteenth Amendments are an insufficient basis for jurisdiction because they
"do not mandate payment of money by the government"); James v. Caldera, 159
F.3d 573, 581 (Fed. Cir. 1998).t Plaintiffs claims based on due process violations
must therefore be dismissed for lack of subject matter jurisdiction.
6. Bivens Claims
In the complaint, Mr. Bowles brings "claims arising from violations of federal
constitutional rights guaranteed in the 14th Amendment to the U.S. Constitution
and redress[i]ble pursuant to Bivens v. Six Unknown Narcotics Agents, 403 U.S.
388 (1971)." Compl. at 3. A Bivens claim --- in which a party may bring an action
for violation of certain constitutional rights against government officials in their
individual capacities --- cannot provide the substantive source of law in this court,
because "[t]he Tucker Act grants the Court of Federal Claims jurisdiction over suits
against the United States, not against individual federal officials." Gallo-Rodriguez
v. United States, 513 F. App'x 971, 973 (Fed. Cir. 2013) (quoting Brown v. United
States, 105 F.3d 621, 624 (Fed. Cir. 1997)). Accordingly, this court lacks jurisdiction
over Mr. Bowles's Bivens claims.
t Only in the limited circumstance of an alleged illegal exaction may a due process
violation come within the jurisdiction of this court. See Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1572-73 (Fed. Cir. 1996).
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C. Miscellaneous Matters
As recounted above, our court lacks jurisdiction over the subject-matter of
plaintiffs complaint, and dismissal is warranted under RCFC 12(b)(l). Accordingly,
the Court need not consider the government's motion in the alternative, under
RCFC 12(b)(6). Plaintiffs application to proceed in forma pauperis is GRANTED,
and he is thus relieved of the obligation to pay the filing fee.
After plaintiffs sur-reply was filed, he submitted three additional documents,
which were not filed when received. The first, received on April 20, 2015, merely
restated the arguments Mr. Bowles made earlier concerning due process and federal
question jurisdiction. The second, purporting to be a motion for summary
judgment, was not accompanied by the requisite number of copies for filing. See
RCFC 5.5(d)(2). Since the Court lacks jurisdiction over the claims brought by Mr.
Bowles, any motion for summary judgment on his part is, of course, futile. The
third document, received on May 11, 2015, is styled a motion for trial but consists of
an argument that is difficult to understand concerning Mr. Bowles's claim that he is
a sovereign entity. In any event, since our court does not have the power to hear
cases concerning the actions of other federal courts, his theory is academic at best.
To make a complete record, the Clerk is directed to file all three documents.
Because the Court lacks jurisdiction over the case, plaintiffs motions for summary
judgment and for trial are DENIED-AS-MOOT.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion to dismiss
this case for lack of subject-matter jurisdiction under RCFC 12(b)(l). The Clerk
shall close the case.
IT IS SO ORDERED.
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