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Pro Se
No. l6-108C FILED
(Filed: May 26,2016 | Not for Publication)
MAY 2 6 ?016
U.S. COURT OF
FEDERAL CLAIMS
RAY S. LIVINGSTON, Keywords: RCFC 12(b)(1); Motion to
Dismiss; Lack of Jurisdiction to Review
Plaintiff, State Action.
THE LTNITED STATES OF AMERICA,
Defendant.
Ray S. Livingstoz, Steubenville, OH,Plaintiff , pro se.
John Sinclair Groat, Trial Attomey, with whom were Claudia Burke, Assistant Director, Robert
E. Kirschman, -/r., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attomey
General, Commercial Litigation Branch, United States Department of Justice, Washington, DC,
for Defendant.
OPINION AND ORDER
KAPLAN, Judge.
The pro se plaintiff in this case, Ray Livingston, alleges that the Ohio Bureau of
Motor
Vehicles improperly and unjustly canceled his license to sell used cars. Compl., ECF No. 1. He
states that, although he had operated a used car dealership for thirty-one years, his license was
"unjustly revoked" in 2012 on the grounds that his place ofbusiness "didn't have eiectric[ity] or
a phone," "was too small," and because he is "not in business for selling cars." Id. fl 3. According
to Mr. Livingston, the cancellation of his license constituted a violation ofhis "civil rights under
the [United States] Constitution." Id. fl 4. In that regard, he observes that "[m]y building is the
only new building owned by an African American in Steubenville, Ohio with the name on it." Id.
Mr. Livingston seeks an order directing the restoration ofhis license and $75,000 in damages. Id.
fl3.
As revealed in the attachments to his complaint, Mr. Livingston brought an almost
identical action in the United States District Court for the Southem District of Ohio, Eastem
Division, which that Court dismissed for lack of subject matter jurisdiction. Livineston v. Ohio
Bureau of Motor Vehicles, No. 2:13-CV-0047,2013 WL 5297249 (S.D. Ohio Sept. 19, 2013),
aff d, No. 13-4140 (6th Cir. May 29,2014), petition for leave to file in forma pauperis denied,
No. 14-6063, 135 S. Ct. 398 (Oct. 14,2014).In his complaint to this Court, Mr. Livingston
alleges that the decision ofthe courts that dismissed his initial complaint were "under color" and
violated his civil rights. Compl. ,lJ 4.
He also alleges that after the Supreme Court denied his motion for leave to file in forma
pauperis on October 14,2014, and ordered him to pay the filing fee by November 4, 2014,he
sent a check for $300 to the Court for which he states he possesses a receipt showing November
4 as the date ofscheduled delivery. Id. fl 6. He further states that he sent several letters to Chief
Justice Roberts "so that he could help me with this matter," but that he received no response. !!.
Mr. Livingston states that his "complaint is against Jeffrey Atkins," an employee of the Office of
the Clerk of the U.S. Supreme Court who notified Mr. Livingston that his case in the Supreme
Court had been closed. Id. 'lf 6; see id. at 1 1 (Letter of January 23,2015 from Mr. Atkins to Mr.
Livingston). Mr. Livingston alleges further that he "never received a retumed receipt that the
papers were received." Id. fl 6,
The govemment has now moved to dismiss the present action in this Court for lack of
subject matter jurisdiction, pursuant to Rule 12(b)(1) ofthe Rules ofthe Court ofFederal Claims.
For the reasons set forth below, the govemment's motion is GRANTED.I
DISCUSSION
In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as
true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe
plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159,1163 (Fed. Cir. 2011). The
coud may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.
United States, 933 F.2d991,993 (Fed. Cir. 1991). It is well established that complaints that are
filed by pro se plaintiffs, like this one, are held to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kerner, 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), affd, 98 F. App'x 860 (Fed. Cir.2004).
Pursuant to the Tucker Act, the United States Court ofFederal Claims has 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) (2012). The Tucker Act serves as a waiver ofsovereign
immunity and a jurisdictional grant, but it does not create a substantive cause ofaction. Jan's
Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008). A
plaintiff, therefore, must establish that "a separate source of substantive law. . . creates the right
t Mr. Livingston
has also filed a motion for leave to proceed in forma pauperis. ECF No. 3. That
motion is GRANTED for the limited purpose of dismissing the case for lack ofjurisdiction.
to money damages." Id. (quoring Fisher v. united states,402F.3d 1167,1172 (Fed. cir. 2005)
(en banc in relevant part)).
This Court lacks jurisdiction under the Tucker Act to adjudicate the legality of a decision
by the state of ohio to revoke Mr. Livingston's business license or to award damages on the
basis of that adjudication because-notwithstanding that Mr. Livingston has named the United
States as the defendant-his allegations relate to the actions ofa state agency, the ohio Bureau
of Motor Vehicles. Under the Tucker Act, "ifthe reliefsought is against others than the United
States the suit as to them must be ignored as beyond the jurisdiction of the court." United States
v. Sherwood, 312 U.S. 584, 588 (1941); see also Vlahakis v. United States,215 Ct. Cl. 1018,
1018 (1978) (observing that "plaintiff s assertions concerning Illinois state officials and courts
are obviously beyond this court's jurisdiction").
For similar reasons, this Court lacks jurisdiction over any claims that Mr. Livingston
seeks to bring against Mr. Atkins, an employee of the Clerk's Office of the Supreme Court. "The
Tucker Act grants the Court ofFederal Claims jurisdiction over suits against the United States,
not against individual federal officials." Brown v. United States, 105 F.3d 621, 624 (Fed. Cir.
1997). Moreover, Mr. Livingston has not identified a source of substantive law that might create
a right to money damages against the United States based upon any action taken by Mr. Atkins.
Finally, to the extent that Mr. Livingston is arguing that the decisions ofthe district court,
court ofappeals, andior Supreme Court violated his civil rights, this Courl also lacks jurisdiction
over such claims. See Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (Court of
Federal Claims does not have jurisdiction to review the decisions of district courts or their clerks
relating to proceedings before those courts).
CONCLUSION
On the basis ofthe foregoing, the government's motion to dismiss for lack ofsubject
matter jurisdiction is GRANTED and this action is DISMISSED without prejudice. The Clerk is
directed to enter judgment accordingly.
IT IS SO ORDERED.
( Ll(./-,-
ELAINE D. KAPLAN
Judge