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No. l5-399
Filed: October 20,2015
NOT TO BE PUBLISHED
FILED
ocT 2 0 2015
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EVELYN GRAY, ,83;3i'u3h?fi'
Plaintiff, pro se,
THE UNITED STATES,
Defendant.
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Evelyn Gray, Dorchester, Massachusetts, pro se.
Jeffrey Matthew Lowry, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.
MEMORANDUM OPINION AND FINAL ORDER
BRADEN,Jadge.
I. RELEVANTFACTUALBACKGROUND.'
On March 25, 2015, March 28, 2015, and April 10, 2015, Evelyn Gray wrote a letter to the
Fox Broadcasting Company, Wendy Williams Show, and Revolt TV. Compl. at 4-8 (exhibits
attached to the April 20,2015 Complaint). In each of these letters, Ms. Gray explained that her
social media accounts had been hacked after communicating with several celebrities on their social
media pages. Compl. at 4-8. Ms. Gray further explained that as a result, her likeness, trademark,
unique style, and delivery were stolen. Compl. at 4-8. Accordingly, Ms. Gray seeks $25 million
in damages from the Fox Broadcasting Company, $25 million in damages from the Wendy
Williams Show, and $10 million in damages from Revolt TV. Compl. at 4-8.
I
The relevant facts discussed herein were derived from Plaintiffs April 20, 2015
Complaint ("Compl.") and the exhibits attached thereto.
Ms. Gray also seeks to recover $ 100 million from the United States and individual
celebrities such as Sean Combs, Beyonc6 Knowles, and French Montana. Compl. at l; Civil Cover
Sheet. Dkt. No. 1-1. at 1.
II. PROCEDURALHISTORY.
On April 20,2015, Evelyn Gray ("Plaintiff') filed a Complaint ("Compl.") in the United
States Court of Federal Claims, seeking $100,000,000 for "computer intrusion," "password
trafficking," "copyright piracy," "trademark counterfeiting," "theft of trade secrets," and
"economic espionage."
On June 25, 2015, the Govemment filed a Motion To Dismiss ("Gov't Mot."), pursuant to
Rule l2(b)(l) ofthe Rules of the United States Court ofFederal Claims ("RCFC"). Plaintiffnever
filed a Response.
On September 22,2015, the court filed an Order requesting that Plaintiff show cause why
this case should not be dismissed in light ofher failure to respond to the Government's June 25,
201 5 Motion To Dismiss.
On October 13,2015, Plaintiff responded to the court's September 22,2015 Order.
Plaintiff requested that the case proceed on the merits. Dkt. No. 10, at 1.
III. DISCUSSION,
A. Jurisdiction.
The United States Court of Federal Claims has jurisdiction under the Tucker Act,28 U.S.C.
$ 1491, "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. $ la9l(aXl). The Tucker Act, however, is "a j urisdictional
statute; it does not create any substantive right enforceable against the United States for money
.
damages . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal
Claims] whenever the substantive right exists." United Stutes v. Teslan,424U.S.392,39S (1976).
To pursue a substantive right under the Tucker Act, a plaintiff must identifu and plead an
independent contractual relationship, constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d l09l, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
identiff a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisher v. United States,402 F.3d 1167,1172 (Fed. Cir. 2005) (en banc) ("The
TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidentifyaseparate
source of substantive law that creates the right to money damages. . . . [T]hat source must be
'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
Govemment[.]" Testan,424 U.S. at 400. The plaintiff also bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
in question... [the plaintiffl bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").
B. Standard Of Review For Pro Se Litigants.
Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (1972) (holding that pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. CI.456,
468 (1969). Nevertheless, while the court may excuse ambiguitiesin a pro se plaintiffl s complaint,
the court "does not excuse [a complaint's] failures." Henke v. United States, 60 F.3d '195, 799
(Fed. Cir. 1995).
C, Standard For Motion To Dismiss Pursuant To RCFC 12(bxl).
A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law is properly raised by a [Rule] 12(bX1) motion[.]"
Palmerv. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: ( I ) lack of subject-matter jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, "a court
must accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable
inferences in favor of the plaintiff " Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011).
D. The Court's Resolution Of The Government's June 25.2015 Motion To
Dismiss.
L Pro Se Considerations.
The court is cognizant of its obligation to liberally constnre pro se plaintiffs' pleadings.
See Estelle v. Gamble,429 U.5.97,106 (1976) (holding that the "pro se document is to be liberally
construed"). But, pro se plaintiffs must still "comply with the applicable rules of procedural and
substantive law." Ilalsh v. United States,3 Cl. Ct. 539, 541 (1983). The court cannot simply
excuse a complaint's failures. See Henke,60F.3dat799.
2. The Merits.
As a threshold matter, a complaint must establish that the court has jurisdiction to
adjudicate an alleged claim. See Trusted Integration, Inc. v. United Stqtes,659 F.3d 1159, 1163
(Fed. Cir. 201 1) (holding that the plaintiff"bears the burden ofestablishing the court's jurisdiction
over its claims by a preponderance of the evidence"). The United States Court of Federal Claims
may only issue judgments for money damages against the United States, if the cause ofaction is
grounded in a contract, a money-mandating statute, or the Takings Clause of the Fifth Amendment.
See 28 U.S.C $ l49l; see also Testan,424 U.S. at 398 (holding that the Tucker Act "does not
create a substantive right enforceable against the United States for money damages" and that it
"merely confers jurisdiction upon it whenever the substantive right exists"). The April 20, 2015
Complaint, however, does not allege a claim that falls within this court's jurisdiction. See 28
U.S.C. $ 1a9l(aXl).
First, the United States Court ofFederal Claims statutorily is not authorized to adjudicate
claims alleging a violation of criminal law. Id.;see also Joshuav. United States,17 F.3d378,319
(Fed. Cir. 1994) ("The [United States Court of Federal Claims] has no jurisdiction to adjudicate
any claims whatsoever under the federal criminal code[.]"). In this case, the only allegations
Plaintiff appears to make against the Government-several cyber and intellectual property
crimes-are violations of the federal criminal code. See l8 U.S.C. $ 1030(a)(2), (6) ("computer
intrusion" and "password trafficking"); 18 U.S.C. $ 2319(a) ("copyright piracy"); 18 U.S.C. $
2320(a) ("trademark counterfeiting"); 18 U.S.C. $ 1832(a) ("theft of trade secrets"); I 8 U.S.C. $
l83l(a) ("economic espionage"). As such, this court does not have the subject-matter jurisdiction
to adjudicate these claims.
Alternatively, even if Plaintiff s allegations regarding an invasion of privacy and
conversion ofher likeness, trademark, unique style, and delivery were to fall within the realm of
tortlawinsteadofcriminallaw,thiscourtisnotauthorizedtoadjudicatetheseclaims.2SU.S.C.
g 1a9l(a)(1) ("The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States . . . in cases not sounding in tort."); see, e.8.,
Martin v. United States,99 Fed. Cl. 627 , 633-34 (20 I 1) (dismissing a complaint alleging theft or
conversion ofintellectual property for lack of subject-matterjurisdiction). As such, this court does
not have the subject-matter jurisdiction to adjudicate these claims.
W, CONCLUSION.
For these reasons, the Govemment's June 25,2015 Motion To Dismiss is granted. See
RCFC 12(bX1). The Clerk is directed to dismiss the Plaintiff s April 20, 2015 Complaint.
IT IS SO ORDERED.
SUS