Clark v. United States

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Pro Se

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U.S. COURT OF
FEDERAL CLAIMS
RICHARD CLARK,
Keywords: RCFC 12(b)(1); Motion to
Plaintiff, Dismiss; Fifth Amendment Takings
Clause; Caveat.

THE UNITED STATES OF AMERICA,

Defendant.

Richard Clark, Seagoville, TX, Plaintiff , pro se.

Daniela A. Arregui Labarca, Trial Attomey, with whom were , John C. Cruden, Assistant
Attomey General, Environmental & Natural Resources Division, United States Department of
Justice, Washington, DC, for Defendant.

OPINION AND ORDER

KAPLAN, Judge.

The pro se plaintiff in this action, Richard Clark, alleges that the govemment effected an
uncompensated taking ofhis private property in violation ofthe Fifth Amendment when it
recorded a caveat on his residence, which he alleges resulted in the denial ofhis application for a
home equity loan. The case is before the Court on the govemment's motion to dismiss for lack of
subject matter jurisdiction pusuant to Rule l2(b)( I ) ofthe Rules ofthe Court of Federal Claims
(RCFC), and in the altemative, for failure to state a claim upon which relief can be granted under
RCFC 12(bX6). For the reasons set forth below, the govemment's motion to dismiss pursuant to
Rule 12(b)(1) is GRANTED and the complaint is DISMISSED without prejudice.l

' Mr. Clark filed a request to proceed in forma pauperis. To proceed in forma pauperis, a plaintiff
must submit an affidavit that includes a list ofall ofhis assets, a declaration that he is unable to
pay the fees or give the security for an attomey, and a statement of the nature ofhis action and
his beliefthat he is entitled to judgment. 28 U.S.C. g 1915(a)(l). Here, Plaintiff satisfied these
requirements, and the Coun therefore GRANTS his application to proceed in forma pauperis for
the limited purpose of dismissing the complaint.
 BACKGROUND'

I. Criminal Charges and the Caveat on Mr. Clark's Residence

The claims presented in Mr. Clark's complaint arose out of actions taken during an
investigation of Mr. Clark by the Assistant United States Attomey for the Northern District of
Oklahoma for his participation in an investment scam known as a "pump and dump" scheme.
United States v. Clark,717 F.3d 790,796-97 (lOth Cir. 2013). Pursuant to that scheme, Mr.
Clark and his co-conspirators spread false information about certain stocks in which they had
invested to inflate or "pump up" the price and then "dumped" or sold the stocks to unsuspecting
buyers at their inflated price to make a profit. Id. Mr. Clark used the laundered profits to, among
other things, make improvements on his residence and pay his mortgage. Id. at 804. Mr. Clark
was indicted by a grand jury on January 15,2009 and after a trial in April, 2010, was convicted
of fourteen counts ofconspiracy, securities fraud, and money laundering. Id. at 798.

On July 10,2007, during the course ofa criminal investigation, an Assistant United
States Attomey recorded a caveat against Mr. Clark's home. Id. at 2. A caveat in this context is a
"waming or proviso" that serves as notice that the property may be subject to forfeiture. See
Black's Law Dictionary ( lOth ed. 2014); Clark,717 F.3d at797 . Filed with the Tulsa County
Clerk, the notice of the caveat stated that the United States "claim[ed] an interest" in Mr. Clark's
home because "the properry may be subject to forfeiture to the United States pursuant to 18
U.S.C. $$ 981 and./or 982," the civil and criminal forfeiture statutes. Def.'s Mot. to Dismiss
(Def.'s Mot.) Ex. 1, ECF No. 5. Mr. Clark was not given formal notice of the caveat when it was
registered in the public record. See Clark,7l7 F.3d, at798.

Mr. Clark alleges that he became aware of the grand jury investigation in July 2008.
Compl. tf 11, ECF No. 1. He further claims that he leamed of the caveat at that time when he
attempted to borrow against his home's equity in order to retain legal counsel. Id. flfl l1-12;
Clark,717 F.3d at 798. According to Mr. Clark, the bank's loan officer informed him that',his
loan could not be approved without the removal of the Govemment's caveat." Compl. !f 12.

Sometime thereafter, Mr. Clark's bank requested that the govemment temporarily release
its caveat so that the bank could consolidate five mortgages Mr. Clark had taken out on his
residence. See id. Ex. A. On February 26,2009, the govemment wrote a letter to the bank
agreeing to temporarily release its caveat on Mr. Clark's residence to allow Mr. Clark to
consolidate the mortgages on the condition that "no new funds, save and except normal closing
costs, are advanced," and with the understanding that the govemment would record a new caveat
"immediately following the recording of the refinance mortgage" with the county clerk. Id. The

'These facts are based on assertions in Plaintiff s complaint, which the Court accepts as true
solely for purposes of ruling on the pending motion to dismiss, as well as jurisdictional facts
drawn from the exhibits to the govemment's motion to dismiss and from the decision by the
United States Court of Appeals for the Tenth Circuit affirming Mr. Clark's criminal conviction.
See United States v. Clark,717 F.3d 790 (1Oth Cir. 2013).
govemment formally released the caveat on Mr. Clark's property on June 25, 2009. Id. !f 36. The
Mr. Clark's loans and consolidated his mortgages. Id. fl 19.
bank then renewed

The govemment recorded an amended caveat on Mr. Clark's residence on July 28,2009.
See Def.'s Mot. Ex. 4. Thereafter, at an October 1, 2009 hearing in preparation for the criminal
trial, Mr. Clark's counsel notified the district court that Mr. Clark intended to seek a home equity
loan to pay attomey's fees for his defense. See Def.'s Mot. Ex. 5; Clark, 717 F.3d 789-99 &n.5.
Therefore, on the next day, the govemment again released the caveat on his residence. Def.'s
Mot. Ex. 5; Clark, 717 F.3dat799 n.5. Nonetheless, when Mr. Clark applied for a loan, the bark
denied his application. Compl. fl 23. In his complaint in this case, Mr. Clark alleges that the bank
denied his loan request because "the Govemment had directly warned the bank . . . not to loan
[him] any money on his property." Id. (citing the February 26,2009letter referenced above from
the govemment to Mr. Clark's bank). In his criminal case, however, Mr. Clark asserted that
when the government lifted the caveat he had no income "because of the govemment's other
post-indictment restrictions on his business activities." Clark,717 F.3d at799 & n.5. Further, the
court ofappeals found that the govemment's assertion that the caveat was lifted unconditionally
on October 2, 2009 was "supported by the record." Id.

IL Mr. Clark's Conviction and Appeal

As mentioned, following a three week trial in April 2010, Mr. Clark was convicted of
multiple counts ofconspiracy, wire fraud, securities fraud, and money laundering. He was
sentenced to l5 1 months in prison, and found jointly and severally liable with his co-conspirator
for monetary damages for criminal penalties and restitution to individual victims. See id. at 798.

Mr. Clark appealed his conviction to the United States Court ofAppeals for the Tenth
Circuit. His primary claim, among many, was that the evidence presented by the govemment was
insufficient to support his conviction. See id. at 804-{9. In addition, Mr. Clark argued that his
residence was not forfeitable property under l8 U.S.C. $$ 981 and/or 982, and that his rights to
due process under the Fifth Amendment were violated because he was not afforded a hearing on
the validity ofthe caveat after it was imposed aad before his trial. Id. aL799.He also alleged that
the caveat prevented him from retaining the counsel of his choice, in violation of the Sixth
Amendment. Id. at 803.

On January 21, 2013, the court of appeals issued its decision affirming Mr. Clark's
conviction. The court reviewed the evidence de novo. It found that for each ofthe charges of
which Mr. Clark was convicted a rational trier of fact could have found Mr. Clark guilty of the
crimes beyond a reasonable doubt. As a result, the court rejected Mr. Clark's claim that the
evidence was insufficient to support his conviction. Id. at 804-{9.

The court of appeals also rejected Mr. Clark's claim that his Fifth Amendment rights
were violated because he was not provided with a pretrial hearing on the validity of the caveat.
The court assumed, without deciding, that the caveat constituted a pretrial restraint ofassets
sufficient to trigger Mr. Clark's procedural due process rights. Id. at 800 (citing the Tenth
Circuit's prior decision in United States v. Jones, 160 F.3d 641 (1Oth Cir. 1998)).r It found,
however, that Mr. Clark had waived his rights to a hearing by failing to ask the district court for
one when he leamed ofthe caveat in July 2008. Id. at 802-03. Accordingly, the appellate court
rejected Mr. Clark's due process claim. Id.

Finally, the Court concluded that the placement ofthe caveat did not impermissibly
infringe on Mr. Clark's Sixth Amendment right to counsel. Id. at 804. As with his due process
claims, the court found that Mr. Clark failed to properly raise his Sixth Amendment claims in the
disftict coff. Moreover, the court of appeals found it "significant" that the district court had
ruled "$225,241.81 of equity in Mr. Clark's home-the property subject to the govemment's
caveat-to be forfeitable property" because the money used to remodel the home and to pay the
mortgage was directly traceable to the conspiracy of which he was convicted. Id. The court of
appeals noted that the Sixth Amendment does not require that the government allow forfeitable
property to be used to pay a defendant's legal fees. Id. For that reason, among others, the court
dismissed Mr. Clark's Sixth Amendment claims. Id.

IIL This Action

Mr. Clark filed this action on October 13,2015. See Compl., ECF No. 1. He alleges that
the govemment effected a taking of his private property without just compensation in violation
of the Fifth Amendment when it recorded a caveat on his residence. Id. flfl 40, 46. Mr. Clark
further alleges that "a government coercion transpired when the bank was directly prohibited
from loaning plaintiffany money on his equity interest in the property." Id. fl 60 (citing the
February 2009 letter from govemment to bank (Compl. Ex. A)). He requests monetary damages
ofat least $750,000. Id. f 69.

On December 14,2015, the govemment filed a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(bxl) or in the altemative, motion to dismiss for failure to state
a claim under Rule 12(b)(6). ECF No. 5. Mr. Clark filed his response on January 21,2016.ECF
No. 7. For the reasons set forth below, the govemment's motion is GRANTED and the
complaint is DISMISSED without prejudice.

' In United States v. Jones, the district court had granted an ex parte motion by the government
to freeze some ofthe defendant's assets pending trial. 160 F.3d at 644. The court ofappeals held
in that case that "the proper balance ofprivate and govemment interests [under the due process
clause] requires a post-restraint, pre-trial hearing but only upon a properly supported motion by a
defendant." ld,. at 647 .

l
 DISCUSSION

I. Motion to Dismiss under RCFC l2(bxl)
A. Standard for Motion to Dismiss for Lack of Jurisdiction

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 Integration. Inc. v. United States, 659 F.3d 1 159, 1 163 (Fed. Cir. 201 1). The
court may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.
United States, 933 F .2d 991, 993 (Fed. Cir. 1991). It may therefore consider matters outside of
the pleadings in ruling on a motion to dismiss pursuant to RCFC 12(bX1). See Reynolds v. Army
and Airforce Exch. Serv.,846F.2d746,747 (Fed. Cir. 1988) (finding that to determine
jurisdiction the "court may consider relevant evidence in order to resolve the factual dispute").

It is well established that complaints that are filed by p1q se plaintiffs are held to "less
stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,404 U.S. 519,
520 (1972). Nonetheless, even p1q se plaintiffs must persuade the court that jurisdictional
requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 499 (2004), affd, 98
Fed. App'x 860 (Fed. Cir. 2004).

B. Jurisdiction Over Plaintiff s Claims
1. Tucker Act

Under the Tucker Act, this Court is granted jurisdiction to "render judgment upon any
claim against the United States founded . . . upon the Constitution . . . for liquidated or
unliquidated damages in cases not sounding in tort." 28 U.S.C. $ 1a91(a)(1). The Tucker Act
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). However, the Tucker Act does not confer any
substantive rights on a plaintiff. United States v. Testan,424IJ.S.392,398 (1976). Therefore, a
plaintiff seeking to invoke the court's Tucker Act jurisdiction must identifu 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). In that regard, "[i]t is undisputed that the Takings
Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker Act
jurisdiction." Id. at 1309; see also Moden v. Unired States,404 F.3d 1335, 1341 (Fed. Cir. 2005)
(holding that the Court of Federal Claims has jurisdiction under the Tucker Act "to the extent the
[plaintiffhas alleged] a nonfrivolous takings claim founded upon the Fifth Amendment").

In this case, as noted, Mr. Clark has alleged that the govemment effected a taking of his
property (i.e., his residence) when it recorded a caveat on his home with the Tulsa county clerk,
advising that the United States claimed an interest in the home "for the reason that the orooenv
may be subject to forfeiture ro the Unired Slates pursuanr to l8 U.S.C. $$ 981 and/or SbZ.': FIe
also alleges that the government's conduct in connection with the recording ofthe caveat was
"coercive" in nature, and that its coercive conduct also effected a taking ofhis property without
just compensation.
 The govemment argues with some force that neither a forfeiture, much less a caveat that
is recorded in anticipation ofa potential forfeiture, is a "taking" under the Fifth Amendment.
Def.'s Mot. at 15-18; see also Bennis v. Michigan,516 U.S. 442,452 (1996) ("The govemment
may not be required to compensate an owner for property which it has already lawfully acquired
under the exercise of govemmental authority other than the power of eminent domain.");
AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008) ("Property seized and
retained pursuant to the police power is not taken for a 'public use' in the context ofthe Takings
Clause."); Crocker v. United States,37 Fed. Cl. l9l, 194 (1997), affd 125 F.3d 1475 (Fed. Cir.
1997) (forfeiture pursuant to federal drug laws is not a taking). Those arguments, however, go to
the question of whether Mr. Clark has stated a claim for reliefunder RCFC l2(bX6). Because the
Court cannot say that Mr. Clark's claims are "so insubstantial, implausible, foreclosed by prior
decisions, or otherwise completely devoid of merit as not to involve a federal controversy," the
legal claims he has articulated fall within this Court's Tucker Act jurisdiction. Moden,404 F.3d
at 1340 (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)); see also
Gould. Inc. v. United States ,67 F.3d925,929 (Fed. Cir. 1995) (observing that "[a] dismissal for
lack ofjurisdiction means that the subject-matter ofthe dispute is one that the court is not
empowered to hear and decide" while "[a] dismissal for failure to state a claim . . . is a decision
on the merits which focuses on whether the complaint contains allegations, that, ifproven, are
sufficient to entitle a party to relief').

On the other hand, Mr. Clark's complaint also appears to challenge the underlying
legality ofthe govemment's recording of the caveat in a number ofrespects. He alleges that the
government lacked a legal basis for the caveat at the time it was imposed, Compl. fl 51, that the
caveat was "improperly utilized" because the property was not connected to criminal activity at
the time the caveat was imposed, id. fl 52, that the indictment did not include forfeiture
allegations to support the placement of the caveat, id. fl 53, that the grandjury did not find
probable cause "to support the caveat's existence," id. ,lf!i 54-55, and that the govemment had
other tools available to ensure the property's availability in case of forfeiture but "for reasons
unknown" chose the caveat, id. tltl 55-57. But see Pl.'s Resp. to Def.'s Mot. to Dismiss (Pl.'s
Resp.) at 3 (arguing, in apparent contradiction to the assertions in his complaint, that the "caveat
was a lawful mechanism . . . and not even a seizure"), ECF No. 7.

This Court, of course, lacks jurisdiction to consider these challenges to the validity of the
criminal forfeiture procedures. Vereda. Ltda. v. United States,271F.3d 1367,1374-:75 (Fed. Cir.
2001) (stating that the Court ofFederal Claims does not have jurisdiction over a plaintiffs
takings claim requiring a determination ofthe correctness ofthe administrative forfeiture),
crocker v. united States, 125 F.3d 1475,1477 (Fed. cir. 1997) (noting that the court ofFederal
Claims does not have jurisdiction to review procedural validity of a forfeiture of seized property
or money under the Controlled Substances Act); Maracalin v. United States, 52 Fed. CI,736,j43
(2002) (Court of Federal Claims lacks jurisdiction over actions challenging the validity of
criminal forfeitures). Therefore, for purposes ofdeciding Mr. Clark's takings claims, the Court
assumes that the govemment acted within its lawful authority with respect to all of the actions it
took in this case in connection with the forfeiture proceedings, including the recording of the
caveat and amended caveat with the County Clerk. See Rith Energ),. Inc. v. United States, 270
F.3d 1347, 1352-53 (Fed. Cir. 2001) (denying petition for rehearing).
 2. Statute of Limitations

As noted above, this Court has jurisdiction over takings claims such as Mr. Clark's under
the Tucker Act (regardless of whether those allegations could survive a motion to dismiss under
RCFC 12(bX6)). Takings claims, however, are subject to the six-year statute of limitations set
forth in 28 U.S.C. $ 2501, which provides that "[e]very claim of which the United States Court
ofFederal Claims has jurisdiction shall be baned unless the petition thereon is filed within six
years after such claim first accrues." The six year statute of limitations is not subject to equitable
tolling and is jurisdictional in nature. John R. Sand & Gravel Co. v. United States, 552 U.S. 130,
134 (2008).

A cause ofaction under the Tucker Act first accrues when "all events have occurred that
are necessary to enable the plaintiffto bring suit, i.e., when'all events have occurred to fix the
Govemment's alleged liability, entitling the claimant to demand payment and sue here for []
money."'Martinez v. United States, 333. F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (quoting
Nager Elec. Co. v. United States , 177 Ct. Cl. 234 (1996)); see also Shoshone Indian Tribe of
Wind River Reservation v. United States,672F.3d 1021, 1030 (Fed. Cir. 2012) (quoting
Hopland Band ofPomo Indians v. United States, 855 F.2d 1573,1577 (Fed. Cir. 1988) (claim
accrues on day that "plaintiffwas or should have been aware" of the events "which fix the
govemment's alleged liability")). A takings claim under the Fifth Amendment thus accrues
"'when [the] taking action occurs."' Navajo Nation v. United States, 631 F.3d 1268, 1273-74
(Fed. Cir. 20l l) (brackets in original) (quoting Goodrich v. United States, 434 F.3d 1329,1333
(Fed. Cir. 2006)); see also Casitas Mun. Water Dist. v. United Stares, 708 F.3d 1340, 1359 (Fed.
Cir. 2013) (citing Ingrum v. United States,560 F.3d l3l t, 1314 (Fed. Cir.2009) (.,[A] claim
alleging a Fifth Amendment taking accrues when the act that constitutes the taking occurs.")).

In this case, the gravamen of Mr. Clark's complaint is that the govemment effected a
"taking" of his property when it recorded a caveat on his home which wamed that it might be
subject to forfeiture under 18 U.S.C. $$ 981 and 982. By his own admission, however, Mr.
Clark became aware of the recording ofthe caveat at least as early as July of2008, when the
bank notified him of its existence as an explanation for its denial of his application for an equity
loan on his residence. See Compl. flfl 11-12; Clark,717 F.3d at 798.4 This is longer than six
years before Mr. Clark filed his complaint in this matter, on October 13,2015.5

" Because Mr. Clark had actual notice ofthe caveat more than six years before he filed his
complaint in this Court, it is unnecessary to address the govemment's argument that, under
Oklahoma law, Mr. Clark was under constructive notice when the govemment publically
recorded the caveat on July 10,2007-more than eight years before Mr. Clark filed his
complaint. See Def.'s Mot. at 1l (citing Okla. Stat. Ann. tit. 25, $ 13 "a person who has actual
notice ofthe circumstances sufficient to put a prudent [person] upon inquiry as to a particular
fact, and who omit to make such an inquiry with reasonable diligence, is deemed to have
constructive notice of the fact itself.")

s
The complaint was filed with the Clerk of the Court on October 13, 2015, but is dated October
1' 2015. Many courts have adopted what is known as the "prisoner mailbox rule" in determining
hling dates for actions brought by plaintiffs who are incarcerated. See Shame v. United States,
 Notwithstanding the foregoing, Mr. Clark argues in his opposition to the government's
motion to dismiss that the date that the oaveat was first recorded is not the date his cause of
action accrued. He states that his takings claim falls within the six year statute of limitations
because it was not until October 12,2009, that "all [the] events ha[d] occurred to fix the
Govemment's alleged liability." Id. (citing Martinez, 333 F.3d at 1303). He contends that the
placement ofthe caveat in 2007 was merely a first step in a "chain ofevents" that "subsequently
followed that are relevant to the accrual date equation." Id. Thus, he appears to argue that it was
not until October 12,2009 (or perhaps even2014, when he alleges he first became aware of the
February 2009 letter) that he fully appreciated the coercive effects that the government's
recording of the caveat had on his bank's willingness to extend a home equity line ofcredit to
him.

Mr. Clark's arguments lack merit. Even assuming that he did not fully appreciate the
effect that the caveat would have on his ability to secure a home equity loan until October 12,
2009 (or later), the critical point is that it is the caveat that constitutes the alleged "taking."
Therefore, the recording of the caveat fixed whatever liability the goverffnent might have under
the takings clause to compensate him and gave him the right to sue. By contrast, the allegedly
"coercive effect" that the caveat and amended caveat had on his bank in October 2009 is a
manifestation of the injury Mr. Clark claims that he suffered as a result of that earlier "taking."
Thus, the govemment's liability would have been fixed (and the limitations period initiated) as
ofthe date the caveat was filed, even ifthe extent ofthe injury Mr. Clark alleges he suffered as a
result ofthis "taking" was not yet known.

Moreover---even if the govemment's alleged "coercion" of Mr. Clark's bank were
somehow considered to itself be a "taking" of Mr. Clark's property-that claim would still be
barred by the statute of limitations. Thus, by Mr. Clark's own admission, he became aware of the
allegedly "coercive" effect ofthe caveat on his bank at least as early as July of2008, when, as
noted, the bank alerted him to the caveat's existence as an explanation for its denial ofhis
application for an equity loan on his residence. See Compl. flfl l1-12; Clark,717 F.3d at 798.

There is similarly no merit to Mr. Clark's attempt to avoid the bar of the statute of
limitations based on the govemment's alleged "fraudulent concealment" ofthe February 26,
2009 letter to his bank, discussed above. Mr. Clark characterized the letter in his complaint as a
"direc[t] wam[ing to] the bank . . . not to loan [him] any money on his property.', Compl. fl 23.
Mr. Clark argues that the letter supplies confirming evidence that "makes it crystal-clear about
the Defendant's coercion over the bank and explains the true reason why the bank would not
loan Plaintiff any money on his equity so he could hire the Securities attomey, even after the
caveat was removed on October 2,2009!" Pl.'s Resp. at 6. According to Mr. Clark, ,,it would be

1 1 1 Fed. Cl. 334,336 (2013) and cases cited therein. Under that rule, a submission bv an

incarcerated prisoner may be deemed filed with the court when it has passed into the control of
prison officials. Id.; see also Bemaugh v. United States, 168 F.3d 1319, *1 (Fed. Cir. 1998)
(citing Houston v. Lack, 487 u.s. 266 (1988) (endorsing prisoner mailbox rule) (unpublished
table decision). The court does not decide here whether the prisoner mailbox rule applies
because, for the reasons set forth herein, Mr. clark's claims are time-baned regardless of
whether an October 1st or October 13th filins date is used.
very safe to say that the Defendant ostensibly concealed this letter (fiom Plaintiffl and its
coercion over the bank." Id.

Mr. Clark's characterization of the February 26,2009 letter as an instrument ofcoercion
whose effects continued to be felt even after the caveat was unconditionally lifted at his
attomey's request, is highly implausible, given the letter's language and purpose.6 In fact, as
noted above, Mr. Clark contended before the Tenth Circuit that the loan had been denied because
ofhis financial distress, not the already released caveat. But even assuming that Mr. Clark's
characterization of the letter were reasonable, the govemment's failure to provide him with a
copy of the letter does not toll the statute of limitations.

To be sure, it is well established that even in cases against the United States, "the statute
of limitations can be tolled where the govemment fraudulently or deliberately conceals material
facts relevant to a plaintiffs claim so that the plaintiff was unaware of their existence and could
not have discovered the basis of his claim." Hopland Band ofPomo Indians , 855 F.2d at 1577 .
But in this case, for the reasons set forth above, Mr. Clark had sufficient facts upon which to
base his takings claim without regard to the contents ofthe February 26, 2009 letter. As
explained, he knew as early as February 2008 both that the caveat had been recorded and that the
bank was unwilling to extend him a home equity loan because ofthe caveat.

Further, and in any event, to establish "fraudulent concealment," a plaintiff must show
that the govemment had some affirmative statutory or regulatory obligation to disclose the
information it is accused of fraudulently concealing. Simmons Oil Corp. v. Tesoro Petroleum
Com.. 86 F.3d 1138, 1 143 (Fed. Cir. 1996). In this case, the Court is unaware of any affirmative
obligation on the govemment's part to disclose the letter at issue to Mr. Clark, whether statutory,
regulatory, or otherwise. Therefore, Mr. Clark's fraudulent concealment argument must be
rejected.

CONCLUSION

For the reasons stated above, the Court GRANTS the govemment's motion to dismiss,
and DISMISSES Plaintiff s complaint for lack ofjurisdiction, without prejudice. The Clerk is
directed to enter judgment accordingly.

Mr. Clark has also filed a "Motion for Leave to Conduct Discovery." ECF No. 12. The
discovery sought by Mr. Clark does not relate to the threshold jurisdictional issue; therefore, Mr.
Clark's motion to conduct discovery is DENIED.

o
In the February 26,2009letter, the government agreed to release the then-existing caveat to
allow Mr. Clark to consolidate his mortgages. The government noted in that letter that it would
republish an amended caveat after the new mortgage was recorded with the County Clerk. See
Def.'s Mot. Ex. 5. There is no indication in the record, however, that the govemment placed
similar conditions on its release ofthe amended caveat, and the Tenth circuit found that the
record in the case before it supported the govemment's argument that the amended caveat's
release was unconditional. Clark, 717 F.3d at 799 n5.
 l[r. Clark has also filed a Motion for Leave to Supplement the Pleadings. ECF No. 15.
That motion seeks leave to supplement his complaint to add a citation to Luis v. United States.
136 S. Ct. 1083 (2016). First, it is not necessary to supplement the oomplaint to bring new
authority to the Court's attention. Further, given the Court's lack ofjurisdiction over the
complaint the supplement Mr. Clark proposes would be futile. Mr, Clark's motion to
supplement the pleadings is, accordingly, DENIED.

ITIS SO ORDERED.

a-
ELAINED, KAPLAN
Judge

l0