Haddad v. United States

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Nos. 15-640C & 15-820C
(Filed November 30, 2015)
NOT FOR PUBLICATION

************************ FILED
NoY 3 0 20ts

RON HADDAD, Jr., U.S, COURT OF
FEDEMLCLAIMS
Plaintiff,

THE UNITED STATES,

Defendant.

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MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

The matters before the court are the defendant's motions to dismiss these
consolidated cases pursuant to Rule 12&)(1) and 12G)(6) ofthe Rules ofthe united
States Court of Federal Claims (RCFC). For the reasons discussed below,
defendant's motions are GRANTED due to plaintiffs failure to state a claim within
this court's jurisdiction.
I. BACKGROUND

on June 22, 2015, the clerk's office received two different complaints from
Ron Haddad, Jr., who is representing himself in these matters. One identifred
Judge virginia M. Kendall as defendant (the Kendall complaint), and the other
listed as dlfenrlants Ruben Castillo, "The Executive Committee," U.S. District
Court Clerk Thomas G. Bruton, and Court Reporter Gayle A' McGuigan (the
castillo complaint). Inadvertently, both were stamped as case No. 15-640c, and the
Kenclall complaint was scanned into CM/ECF and served upon the governmerrt'
while the castillo complaint was delivered to chambers. Due to this oversight, the
Castillo complaint was not properly frled at the time of receipt'

A subsequent document concerning Judge Kendall, received from plaintiff on
July 28, 2015, appeared to raise a new matter before the Court and was filed as the
complaint in case number 15-820C. In addition to Judge Kendall, the complaint
identified U.S. Attorneys William Ridgway, Joe Thompson, and Zachaty Fardon,
and presentencing investigator Sarah Kieckhafer, as the improperly-named
defendants.r It was not until Mr. Haddad filed two documents, one with case
number 15-640C and the other with case number 15'820C, both discussing Judge
Kendall, that the Court reviewed the complaint scanned into the ECF system as
number 15-640C and realized that the document was not the same document
Chambers received with the stamp ofcase number 15-640C. Subsequently, cases
15-640C and 15-820C have been consolidated since both concern Judge Kendall, and
the Castillo complaint has been fiIed as case number 15-1075C.

Plaintiff is currently serving a 150-month prison sentence after being
convicted of 30 separate counts of mailing threatening communications in violation
of 18 U.S.C. SS 8?5(c), 876(c). United States u. Haddad', No. 09 CR 115, 2015 WL
161659, at *1 (N.D. III. Jan. 13, 2015). Judge Kendall of the U.S. District Court for
the Northern District of Illinois presided over plaintiffs ftial. Id. Judge KendaII
had also presided over an earlier civil suit where Mr. Haddad unsuccessfully sued
Dominican University and Sallie Mae for allegedly "inducing him to execute student
loans and failing to evaluate his eligibility to receive those loans." Hadd'ad u.
Dominican Uniu., No. 06 C 0506, 2007 WL 809685, at *2 (N.D. III. Mar. 15,2007)'
Mister Haddad appealed his criminal conviction to the seventh circuit, where the
appeal is still pending. See United States u, Haddad, No. 15'1398 (7th Cir.). There
he attempted to frle three documents, each titled "Notice of Emergency Extra-
Ordinary Writ of Mandamus by Necessity Doctrine." See Order, United States u'
Hadd.ad., No. 15-1398 (7th Cir. JuIy 9, 2015), ECF No. 30' The Seventh Circuit did
not considered these documents, explaining that the proper course for Mr. Haddad
to challenge his conviction or sentence was for him to make his arguments rn an
opening brief. 1d.

Plaintiff subsequently filed his complaints in our court. Mister Haddad
alleges that Judge Kendall committed fraud against him, in violation of the duties
ofher office, through her adverse ruling in his civil case against Dominican
University and Sallie Mae.2 Compl., No. 15-640C, lTfl 2-3. Among other things, he
contends Judge Kendall held a hearing in his absence and gave preferential

1 In complaints filed in our court, the United States is the only proper defendant.
See RCFC 10(a); see also Stephenson u. (Jnited States,58 Fed' Cl. 186' 190 (2003)'

2 To the extent that Mr. Haddad is challenging any actions which resulted in the
ad.verse outcome of his 2007 civil suit, this challenge is beyond our jurisdiction. The
six-year period for filing a Iawsuit under the applicable statute of limitations, 28
U.S.C. S 25OI --- which is jurisdictional in nature, see John R. Sand & Grauel Co' u'
tJnited. States,552 U.S. 130, 134-36 (2003) -'- had expired years before the frrst
complaint was filed.
treatment to his adversaries. Id. Plaintiff claims that Judge Kendall violated 28
U.S.C. S a55(a), (bX1), and (b)( ) by failing to recuse herself from his criminal case.
Id. 11 3; Compl., No. 15-820C, fl 3.3 Mister Haddad further contends that two U.S.
Attorneys committed fraud and withheld Grand Jury records, Compl', No. 15-820C,
Attachs. at 8, 12, one ofwhom additionally made a false declaration during trial,
id.., Attach. at 19.a And he alleges that a presentencing investigator lied regarding
the availability ofsentence enhancements. 1d., Attach. at 8.

Both complaints in these consolidated cases request the same three forms of
relief: the vacation ofthe judgment entered against him in criminal case No. 09-cv-
115; the frring ofJudge Kendall, as well as her complete ban from practicing law or
ever again holding public offrce;5 and damages in the amount of $20,000,000'00'
Compl., No. 15-640C, lJ 4; Compl., No. 15-820C, fl 4. To the latter-filed complaint,
Mr. Haildad adds the request for a writ of mandamus that was denied by the
Seventh Circuit. Compl., No. 15-820C, flfl 2-3.

Plaintiff describes the complaints as being brought under "Motion
60@),(3),(4)," see Compl., No. 15-640C, fll| 1-2; Compl.' No. 15-820C, fllJ 1-2, bv
which he apparently means RCFC 60, the rule providing for relief from final
judgment.G He contends our jurisdiction comes from the United States
bonstitution (specifically, Articles I, III, and VI, as well as Amendments 6, 8, and
14); anil 28 U.S.C. S 455 (Disqualification of justice, judge, or magistrate
judge)'
Compl., No. 15-640C, flfl 1-3; Compl., No. 15-820C, flfl 1-3. Defendant moved to
dismiss this case under RCFC 12&)(1) and (6) for lack of subject-matter jurisdiction
and failure to state a claim upon which relief can be granted'? Def''s Mot' to
Dismiss, No. 15-640C, at 1; Def.'s Mot. to Dismiss, No. 15'820C, at 1'

r Plaintiff misidentifies this provision as section 445, instead of455'
a The Court can discern no specific allegations against Mr' Fardon'

5 The complaint in case no. 15'820C also requests that Messrs. Ridgway,
Thompson, and Fardon, and Ms. Kieckhafer, be fired and banned from holding
public office.

6 This rule, however, only applies to judgments issued by our court, as the mutual
predecessor of our court and the Federal circuit has held that such a rule does not
extend our jurisdiction to reach matters decided in other courts. see carney u.
united states,199 Ct. CI. 160,162-64 (1972).
7 The government filed two dismissal motions: one for the 15-640c Kendall
complalnt and one for the 15-820C Kendall complaint. Both raise RCFC 12(b)(1)
gro,rnds. The motion to dismiss case number 15-640c also raises RCFC 12(b)(6) as
i erorrrrd for dismissal. The Court does not address the 12(b)(6) ground, due to the
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 In his response, plaintiff relies on 5 U.S.C. S 556(d), part of the
Administrative Procedure Act (APA), 5 U.S.C. $$ 551 et seq', to support his
assertion that this court has jurisdiction over the claims in his complaints. Pl.'s
Resp. at 1, ECF No. 11.8 But, as the Federal Circuit has unambiguously held, "the
Court of Federal Claims lacks APA jurisdiction." Martinez u' United Slotes, 333
F.3d 1295, 1313 (Fed. Cir. 2003) (en banc).e Plaintiff also maintains that the
individuals named in his complaints have conceded that the allegations are true by
not responding to his writs during the time periods he provided them. Pl.'s Resp. at
1. He also argues that his indictment cited statutes concerning kidnapping rather
than threats to use explosives, id. at 1-2; adds the Fifth Amendment to the
constitutional provisions allegedly violated by Judge Kendall, when she claimed he
was limited to three consecutive court-appointed lawyers, id. at 2; and reiterates his
belief that our jurisdiction may be based on provisions in the body of the
Constitution, id. at 2-3 (citing U.S. CoNSr. art. I, $ 3, cl. 7; art. II, S 2, cl. 4; art' III,
$ 1; ancl art. VI, cl. 2).10 In a sur'reply, plaintiff cites the Constitution's oath
of
office provision, Article VI, clause 3, and maintains that jurisdiction may be
exercised due to aliegations of wrongful conviction and imprisonment. Pl.'s Sur-
Reply at 1, ECF No. 13.

II. DISCUSSION

A. Subject-Matter Jurisdiction
Under RCFC 12(b)(1), 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 u. Rhodes,416 u.s. 232,236 (197 4); Hxton u. B&B Plastics,
Inc.. 29I F.3d 1324, 1326 (Fed. cit. 2002) (requiring that on a motion to dismiss for

lack ofjurisdiction over the matters raised in that complaint.

8 Each document submitted by Mr. Haddad in response to the two motions has
been filed in both cases. For ease of reference, the court provides the corresponding
docket number for each filing in the earlier-filed case (number 15-640C)'

e Moreover, section 556(d) governs the procedures of agency hearings (specifically
the burden ofproofand presentation ofevidence), and thus has no bearing on the
jurisdiction of this court or the procedures this court must follow'

r0 Plaintiff misidentifies the first provision as Article I, clause 7, and then
mistakenly corrects the reference in his sur-reply as Article I, section 7. Pl.',s Sur-
Reply at 1. since two the other cited provisions relate to impeachment and the term
or om"e for judges, the court assumes Mr. Haddad intended to cite Article I, section
3, clause 7, which concerns the punishment for impeachment'
A
lack of subject-matter jurisdiction this court views "the alieged 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 u. United
Srotes, 105 Fed. CI. 303, 325 (2012).

Although a pro se plaintiffs filings are to be liberally construed, see Erichson
u. Pardus,551 U.S. 39, 94 (2007), this lenient standard cannot save claims which
are outside this court's jurisdiction from being dismissed' See, e.g., Henhe u' United
states,60 F.3d 795, 799 (Fed. cir. 1995). The party invoking a court's jurisdiction---
here, Mr. Haddad---bears the burden of establishing it and must ultimately do so by
a preponderance ofthe evidence. See McNutt u. Gen. Motors Acceptance Corp' of
Ind., 298 U.S. 178, 189 (1936); Reynolds u. Arrny & Air Force Exch. Seru.,846 F'2d
746,748 (Fed. Cir. 1998); Rocouich u. United States,933 F.2d 991, 993 (Fed. Crr.
1991).

B. Analysis

Taking into consideration Mr. Haddad's pro se status by broadly construing
his arguments and, of course, assuming that all of his allegations are true, the
court still finds that none of his claims falls within our jurisdiction. Plaintiff,
representing himself in these matters, insists that the facts alleged are established
bythe failure of individuals to respond to papers he has filed in other cases. But
even if everything he says about the judges, lawyers, and other official discussed in
the complaints is true, this Court cannot entertain these cases unless a
jurisdictional basis has been properly invoked.

The government raised at least five reasons for dismissing these cases for
lack ofsubject matter jurisdiction pursuant to RCFC 12G)(1)' First, the
government argues that this court does not possess jurisdiction over plaintiffs
claims because he brought them against federal officers, rather than against the
United states as required by the Tucker Act. Def.'s Mot. to Dismiss, No. 15-820C,
at 6: see Stephenson u. (Jnited 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." (emphasis omitted)). To the extent that Mr' Haddad is
bringing claims against any ofthe named individuals, the government is correct
that these must be dismissed. Taking plaintiffs pro se status into account,
however, the court construes his complaints to also be against the united states,
and proceeds to review the motions on that basis.

Turning to the government's second argument, it claims that this court does
not have jurisdiction to issue Mr. Haddad's requested writ of mandamus. Def.'s
Mot. to Dismiss, No. 15-820C, at 5-6. The Court agrees. There are two Federal
statutes that allow a party to obtain a writ of mandamus: 28 U.S.C. S 1361 and the
All Writs Act,28 U.S.C. S 1651(a). Section 1361 of title 28 of the U.S. Code grants power
of mandamus only to federal district courts, and although this court is a federal
court, it is not a federal district court. See Warren u. United Slotes, 106 Fed. Cl.
5O7,512 (2012). Second, the All Writs Act provides that all courts established by an
Act of Congress (as well as the Supreme Court) "may issue aII writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. $ 1651(a). This Act may only be invoked in
extraordinary circumstances, and the party invoking the writ must prove that its
right to the writ is "clear and indisputable." Kerr u. U.S. Dist. Ct.,426 U.S. 394,
402-03 (19?6). Most signifrcantly for our purposes, the All Writs Act does not
expand a court's jurisdiction beyond "clearly expressed statutory limits." Sec Sau'
& Loan Ass'n u. (Jnited States,26 Cl. Ct. 1000, 1003 (1992).it The writ is a remedy,
not an independent source ofjurisdiction. Even if Mr. Haddad were able to
demonstrate that his right to a writ of mandamus is "clear and indisputable," Kerr,
426 u.s. at 403, he would still need to identify a claim within our jurisdiction to
which the writ may be applied.

Third, the government argues that plaintiffs statutory and constitutional
claims are beyond the court's jurisdiction because they do not seek relief under a
money-mandating provision. Def.'s Mot. to Dismiss, No. 15-640C, at 3-4' For a
statuiory or constitutional violation to come within the jurisdiction of this court, the
statue or clause allegedly violated must contain a provision that entitles one to
money damages. see united states u. Testan, 424u.s.392, 398 (197 6); Contreras u.
United. States,64 Fed. Cl. 583, 588 (2005); see also Eastport Steamship Corp' u'
(Jnited, states,372F.2d 1002, 1007 (ct. cI. 1976) (explaining that our court does not
have jurisdiction to hear "every claim involving or invoking the constitution").
Plaintiffs reliance on the Sixth, Eighth, and Fourteenth Amendments is misplaced
because those amendments are not money-mandating. see Gable u. United states,
106 Fed. CL.294,297 (2012) (stating that the Sixth Amendment is not money-
mandating); Trafny u. (Jnited States,503 F.3d 1339, 1340 (Fed' Cir.2007) (holding
that the Eighth Amendment is not a money-mandating provision); Smith u. United
States,TOg F.3d 1114, 1116 (Fed.Cir.2013) (holding that the Fourteenth
Amendment is not money-mandating).12 In addition, the Fourteenth Amendment
does not apply to the actions of the federal government. Fry u. United States,72
Fed. CI. 500 (2006) (citing S.F. Arts & Athletics, Inc. u. U.S. Olvmpic Comm', 483
U.S. 522. 542 n.21 (1987)).

It The injunctive powers ofour court are narrowly limited to restoration of office or
status, correction ofrecords, administrative remands, and bid protest remedies. See
28 U.S.C. S 1ae1(a)(2), (b)(2).

12 To the extent that plaintiff is attempting to allege a violation ofthe Fifth
Amendment's Due Process clause, see Pl''s Resp. at 2, this, too does not provide a
money-mandating basis for our jurisdiction, see smith u. united states,709 F.3d
1114, 1116 (Fed. Cir.2013).
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 The other portions of the Constitution identified by plaintiff similarly lack
any reference to an entitlement to money damages for their violation. T$o
provisions concern the removal from and disqualification for federal office upon
impeachment and conviction. U.S. CoNsr., art. I, $ 3, cI. 7; art. II, $ 2, cI.4.
Another provision specifies that judges hold office while on good behavior. Id , art'
III, $ 1. The other two make the Constitution and proper legislation the supreme
Iaw ofthe land, and require that officeholders take an oath in support. Id., art'Yl,
cls. 1, 3. Other than the guarantee that federal judges will not have their
compensation diminished while in office, id., art. III, $ I; see United States u. Hatter,
532 U.S. 557, 560-61 (2001), no money mandate can be found among these
provisions. And section 455 of title 28 of the U.S. Code deals with the
circumstances when a judge shall disqualifu herself and contains no provision for
monetary relie{ thus failing to support a claim within our jurisdiction'

Fourth, the government correctiy points out that this court does not possess
jurisdiction over criminal matters. Def.'s Mot. to Dismiss, No. 15-820c, at 6. "This
court lacks jurisdiction to consider claims which amount to collateral attacks on
criminal convictions." Perhins u. united states, No. 13-023c, 2013 wL 3958350, at
"3 (Fed. cl. July 31, 2013). To the extent that one could construe plaintiffs claims
as requesting a review of his criminal conviction or the actions ofthe Seventh
Circuit, this court lacks jurisdiction. This court "does not have jurisdiction to
review the decisions of district courts . . . relating to proceedings before those
courts.,' Joshua u. United States, I7 F.3d 378, 380 (Fed. Cir. 1994); see also Vereda,
Ltd.a. u. (Jnited. States,27l F.3d 136?, 1375 (Fed. Cir. 2001) (explaining that our
court is not an appellate tribunal, and "does not have jurisdiction to review the
decisions of district courts"). Nor do we have jurisdiction to review the decisions of
federal courts of appe al. See Bafford u. United Stofes, No. 09-030, 2009 WL
2391?85, at *4 (Fed. Cl. Aug. 3, 2009).

FinaIIy, the government argues that this court does not have jurisdiction over
plaintiffs
-SZOC, claim that he is entitled to $20,000,000. Def.'s Mot. to Dismiss, No. 15-
ut 6-?. The government states that broadly construing Mr' Haddad's
complaint, his monetary claim might be premised on his allegedly unjust conviction
and imprisonment under 28 U.s.c. s 1495. 1d. Indeed, Mr. Haddad has invoked
the nature-of-suit code corresponding to unjust conviction and imprisonment, from
the cover sheet used for complaints in our court, see RCFC App',x of Forms, Form 2,
in his attempt to establish jurisdiction. PI.'s Sur-Reply at 1. In order for this court
to have jurisdiction under section 1495, a plaintiff must allege and prove that his
conviction has been reversed or set aside on the ground that he is not guilty or
pardoned and that he did not commit the acts which were the basis of his
conviction, in accord.ance with the requiremcnts of 28 U.S.C. $ 2513(a). See Grayson
u. (Jnited states, l4I ct. cl. 866, 869 (1958) (per curiam). Here, defendant has not
alleged that his conviction has been set aside --- to the contrary, he is currently
a 150-month sentence in prison. Accordingly, section 1495 provides no basis
"".rrirs
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for the exercise ofjurisdiction over Mr. Haddad's request that he be awarded
$20,000,000.

As recounted above, our court lacks jurisdiction over the subject-matter of
plaintiffs complaints, and dismissal is warranted under RCFC 12(b)(1).

III. CONCLUSION

For the foregoing reasons, the defendant's motions to dismiss case number
15-640C and case number 15-820C, pursuant to RCFC 12@)(1), are GRANTED due
to the lack of subject-matter jurisdiction over the claims in the cases. The clerk is
directed to close these two cases.

IT IS SO ORDERED.

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