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FILED
Nos. l5-332C, l5-400C, l5-1000C (Consolidated)
(Filed: March 14,2016 | Not for Publication) MAR I4 2015
U.S. COURT OF
Keywords: Pro Se Complaint; TGEDERAL CLAIMS
AROR ARK O'DIAH, Claims; Constitutional Claims;
Student Loan Asreement
Plaintiff,
THE UNITED STATES OF AMERICA,
Defendant.
Aror Ark O'Diai, Brooklyn, NY,Plaintiff pro se.
Mollie L. Finnan,Trial Attomey, with whom were Brian A. Mizoguchi, Assistant
Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Acting Assistant
Attomey General, Commercial Litigation Branch, U.S. Department of Justice,
Washington, DC, for Defendant.
OPINION AND ORDER
Pro se Plaintiff Aror Ark O'Diah has filed three complaints in this Court. See
Compl., O'Diah v. United States, No 15-cv-332 (O'Diah D, ECF No. l; Compl., O'Diah
v. United States, No. 15-cv-400 (O'Diah II), ECF No. 1; Compl., O'Diah v. United
States, No. 15-cv-1000 (O'Diah IID, ECF No. l. The Court has consolidated these cases
because they share common issues of fact and law. See Consolidation Order, O'Diah I,
ECF No. 9. The govemment has moved to dismiss Mr. O'Diah's complaints under Rules
of the Court of Federal Claims (RCFC) l2(bX1) and 12(b)(6). See O'Diah I, ECF No. 5;
O'Diah II, ECF No. 5; O'Diah III, ECF No. 5. Mr. O'Diah has also moved for judgment
on the pleadings in one of his cases. See O'Diah II, ECF No. 6. For the reasons discussed
below, the Court concludes that it lacks jurisdiction over many of the claims Mr. O'Diah
has asserted in his complaints, and that Mr. O'Diah has failed to plausibly allege a right
to relief in any of his remaining claims. Therefore, the govemment's motions to dismiss
are GI{ANTED, and Mr. O'Diah's motion for judgment on the pleadings is DENIED as
moot.'
BACKGROUND,
The allegations in Mr. O'Diah's complaints are not clearly articulated. As best the
Court can tell, Mr. O'Diah appears to assert that he has been unlaufully arrested,
wrongfully convicted, and then beaten and exposed to dangerous chemicals, causing him
injury. See Compl., O'Diah I,at3,54; Compl., O'Diah II, at 3; Compl., O'Diah III, at
vii, 1-4, 7-10. Moreover, upon filing administrative complaints and/or lawsuits regarding
these wrongs, he alleges that he was targeted for murder. See Compl., O'Diah I , at34;
Compl., O'Diah II, at 3; Compl., O'Diah III, at 3. All these actions have allegedly been
carried out by a variety of govemment officers, governmental agencies, and private
entities. See Compl., O'Diah I, at l-3; Compl., O'Diah II, at 3-8; Compl., O'Diah III, at
24,7-9. Based on these allegations, he claims that he has been deprived of his rights
under the United States Constitution, including his rights under the first, fourth, fifth,
sixth, seventh, eighth, and fourteenth amendments, as well as of similar rights under the
New York State Constitution. See, Compl., O'Diah I, at 4; Compl., O'Diah II, at 7;
Compl., O'Diah III, at v.
He also alleges that private individuals have defamed and attempted to murder
him, Compl., O'Diah III, at 9; that his former attorneys are liable to him for malpractice,
id. at 9-10; and that certain items of his valuable property have been unlawfully
confiscated, id. at 10. Finally, he alleges that the United States violated the terms ofa
student loan repayment agreement it entered into with him in 2014. Id. at 3-5. According
to Mr. O'Diah, many of these acts have been motivated by bias against him based on his
race and national origin. E.s., id. at 1-2. He seeks damages of$132 billion and injunctive
relief. Id. at i.
DISCUSSION
I. Standards for Motion to Dismiss
A. RCFC r2(b)(r)
!4,
The Court of Federal Claims is a court of "limited jurisdiction." Marcum
LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). The court's primary grant of
jurisdiction is found in the Tucker Act, which gives the court jurisdiction "to render
' Mr. O'Diah has also filed motions to proceed in forma pauperis along with each of his
complaints. The Court hereby GRANTS those motions solely for purposes of deciding
the pending motions to dismiss.
2
The allegations described below are drawn from Mr. O'Diah's three complaints. Mr.
O'Diah has also filed many similar complaints in other jurisdictions. See. e.e., O'Diah v.
Port Auth. of N.Y. and N.J., No. 05-cv-5296 ,2012 WL I 13551, at * I (E.D.N.Y. Jan. I 1,
2012) (discussing six of Mr. O'Diah's previous cases).
2
judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation ofan 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(a)(1). The Tucker Act thus waives the
sovereign immunity of the United States to allow a suit for money damages. United
States v. Mitchell,463 U.S. 206,212 (1983). It does not, however, confer any substantive
rights on a plaintiff. United States v. Testan,424 U.5.392,398 (1976). Therefore, to
invoke the court's Tucker Act jurisdiction, a plaintiffmust identifr an independent source
ofa substantive right to money damages from the United States arising out ofa contract,
statute, regulation, or constitutional provision. Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008); see also Golden Pacific Bancom
v. United States, 15 F.3d 1066,1076 (Fed. Cir. 1994).
In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor of the plaintiff. Trusted Inteqration. Inc. v. United States, 659 F.3d I 159, 1163
(Fed. Cir. 201 1). Further, it is well established that complaints filed by pro se plaintiffs
(as is this one) are held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs
must persuade the court that jurisdictional requirements have been met. Bemard v. United
States, 59 Fed. Cl. 497, 499 (2004), af?d, 98 Fed. App'x 860 (Fed. Cir. 2004).
B. RCFC 126X6)
When considering a motion to dismiss for failure to state a claim under RCFC
12(bX6), the court accepts as true the complaint's undisputed factual allegations and
construes them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S.
662,678 (2009). The court also draws all reasonable inferences in favor ofthe non-
moving party. Sommers Oil Co. v. United States,24lF.3d1375,1378 (Fed. Cir.2001).
Nevertheless, the complaint's factual allegations "must be enough to raise a right to relief
above the speculative level." Bell Atlantic Com. v. Twombly, 550 U.S. 544,555 (2007).
In other words, the plaintiffs claim must be plausible on its face. Id. at 570; see also
Acceptance Ins. Cos.. Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). "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."
Iqbal, 556 U.S. at 678 (citing Twomblv, 550 U.S. at 556).
II. Application to Mr. O'Diah's Complaints
Applying these standards, the Court concludes that it lacks subject matter
jurisdiction over many of Mr. O'Diah's claims. To begin with, the Court of Federal
Claims has no jurisdiction to entertain claims against any defendant other than the United
States. See United States v. Sherwood,3l2 U.S. 584,588 (1941) ("Ulfthe relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdiction ofthe court."). Likewise, the Court of Federal Claims has no jurisdiction to
rule on claims arising under any state constitution. Kurt v. United States, 103 Fed. Cl.
384,388 (2012) (citing28 U.S.C. $ 1491). Accordincly, lv1r.O'Diah's claims against
parties other than the United States and those premised on violations of the New York
State Constitution must be dismissed.
The Court ofFederal Claims' jurisdiction also does not extend to criminal
matters. See Upshaw v. United States, 599 Fed. App'x 387, 388 (Fed. Cir. 2015) (per
curiam); Joshua v. United States, 17 F.3d 378,379 (Fed Cir. 1994). Nor does it extend to
any claims "sounding in tort." See 28 U.S.C. $ 1491(a)(l); see also Keene Com. v.
United States, 508 U.S. 200,214 (1993) ("[T]ort cases are outside the jurisdiction of the
Court of Federal Claims . . . ."); Brown v. United States, 105 F.3d 621,623 (Fed. Cir.
1997)). Accordingly, the Court cannot assert jurisdiction over Mr. O'Diah's claims
related to attempted murder, conspiracy, unlawful arrest and imprisonment, assault and
battery, exposure to hazardous materials, defamation, legal malpractice, and/or
conversion, as those claims can only be construed as alleging criminal violations or torts.
Moreover, the Court's jurisdiction over constitutional claims is limited to those
claims which are based on constitutional provisions that are "money-mandating." See
Brown, 105 F.3dat623; LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995).
Accordingly, the Court lacks jurisdiction over Mr. O'Diah's claims under the first, fourth,
sixth, seventh, eighth, and fourteenth amendments, as well as his claims under the fifth
amendment's Due Process Clause, as those provisions do not mandate the payment of
public tunds. See United States v. Connollv,716F.2d 882, 886-87 (Fed. Cir. 1983) (first
amendment); Brown, 105 F.3d at 623 (fourth amendment); Dupre v. United States,229
Ct. Cl.706,706 (1981) (per curiam) (fourth and sixth amendments); LeBlanc, 50 F.3d at
1028 (fifth amendment's Due Process clause and fourteenth amendment's Due Process
Clause); Golden Pacific Bancom, 15 F.3d at 1076 (fifth amendment's Due Process
Clause); Winston v. United States,465 F. App'x 960,961 (Fed. Cir. 2012) (sixth
amendment); Jaffer v. United States, No. 95-5127, 1995 WL 592017, at *2 (Fed. Cir.
Oct. 6 1995) (per curiam) (seventh amendment); Trafnv v. United States, 503 F.3d 1339,
1340 (Fed. Cir. 2007) (per curiam) (eighth amendment).1
3
Further, to the extent that Mr. O'Diah attempts to allege a claim for a taking without
just compensation under the fifth amendment's Takings Clause (which provides that
"private property [shall not] be taken for public use without just compensation," see U.S.
Const. amend. V), he has failed to plausibly allege such a claim. Mr. O'Diah has alleged
that certain items of his valuable properly (including cars, money, and jewelry) have been
"unlawfully seized without due process," "confiscated without [a] reasonable basis in law
and fact," or "illegally confiscated." See Compl., O'Diah II, at 13. But only an
"authorized" taking can form the basis of a well-pled takings claim. Del-Rio Drilline
Proerams. Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998). That is, an alleged
taking must be "chargeable to the govemment" rather than "committed by a govemment
agent acting ultra vires." Id. It follows that, to the extent a plaintiff alleges (as does Mr.
O'Diah) that the govemment's action "constituted a taking because the action was
unlawful," the plaintiff fails to state a claim. See Star Int'l Co. v. United States, 106 Fed.
Cl. 50,70 (2012) (citing Lion Raisins. Inc. v. United States,416 F.3d 1356, 1369 (Fed.
Cir.2005)).
A
Finally, Mr. O'Diah has failed to state a claim regarding the alleged student loan
repayment agreement with the United States. To state a claim for the breach of a contract
with the United States, a plaintiff must plausibly allege the existence of a contract with
the United States, the breach ofa duty arising out of that contract, and damages resulting
from the breach. See Kan-Almaz v. United States,682 F.3d 1364,1368 (Fed. Cir. 2012);
Bell/Hearv v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014).Mr. O'Diah appears
to allege that he entered a student loan repayment agreement with the United States under
which he was to pay ten dollars each month to the Department of Education (DOE); but
that he was subsequently required to pay ten dollars each month to a different agency (the
Pennsylvania Higher Education Assistance Agency), as well as five dollars each month to
the DOE. See Compl., O'Diah III, at 4. Moreover, he alleges that the DOE disbursed
funds to Temple University against his wishes, and that the agency is now demanding
repayment ofthose funds. See id. at 4-5.
In the first place, Mr. O'Diah has not adequately alleged the existence ofa
contract with the United States. See Kan-Almaz, 682 F.3d at 1368 (to allege the existence
ofa contract with the United States, a plaintiff must allege "(1) mutuality ofintent, (2)
consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the
part of the govemment's representative to bind the govemment in contract" (quoting
Hanlin v. United States,316 F.3d 1325,1328 (Fed. Cir. 2003))). In addition, Mr.
O'Diah's allegations do not describe any ofthe terms ofthe purported contract. Thus, the
Court is unable to ascertain the nature ofthe alleged contract or the duties that might arise
from it. Finally, Mr. O'Diah's allegations do not explain how the United States has
breached the supposed contract or how any such breach has damaged Mr. O'Diah.
Accordingly, Mr. O'Diah has failed to plausibly allege a claim for the breach of a
contract with the United States.
CONCLUSION
For the reasons discussed above, the govemment's motions to dismiss are hereby
GRANTED. Mr. O'Diah's claims related to his purported student loan agreement with
the United States are dismissed with prejudice; his remaining claims are dismissed
without prejudice. In addition, Mr. O'Diah's motion for judgment on the pleadings is
hereby DENIED. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
u //,(-
ELAINE D. KAPLAN
Judge