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Pro Se
No. l6-e3lc NOV - 3 2016
(Filed: November 3, 2016 | Not for Publication)
.Eor;Soorr;t?fi.
) Keywords: Pro Se Complaint; Tort
AROR ARK O'DIAH, ) Claims; Criminal Claims;
) Constitutional Claims; 42 U.S.C.
Plaintiff, ) gg 1983 and 1985; Breach of Contract.
)
v.)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
Aror Ark O'Diai, Brooklyn, NY, Plaintiff pro se.
Mollie L. Finnan, Tial Attomey, with whom were Brian A. Mizoguchi, Assistant
Director, Robert E. Kirschman, -Ir., Director, and Benjamin C. Mizer, Acting Assistant
Attomey General, Commercial Litigation Branch, U.S. Department of Justice,
Washington, DC, for Defendant.
OPINIONAND ORDER
This case is currently before the Court on the govemment's motion to dismiss the
complaint pursuant to Rule 12(bXl) of the Rules of the Court of Federal Claims (RCFC).
For the reasons discussed below, the govemment's motion to dismiss is GRANTED.I
BACKGROUND
This is the fourth complaint that the pro se plaintiff Aror Ark O'Diah has filed in
this Court. Mr. O'Diah's three prior complaints were dismissed in an unpublished
opinion the Court issued some four months before the present case was filed. O,Diah v.
United States, Case Nos. l5-332C,15-400C, 15-1000C,2016 WL 1019251 (Fed. Cl. Mar.
14,2016). As the Court noted when it dismissed Mr. O'Diah's previous complaints, Mr.
O'Diah has also filed many similar complaints in other jurisdictions.
' Mr. O'Diah has also filed a motion to proceed in forma pauperis along with his
complaint. The Court hereby GRANTS that motion solely for purposes of deciding the
pending motion to dismiss.
?01q leDB 0000 1011 1?P0
In this fourth complaint, Mr. O'Diah appears to repeat the grievances he
expressed in his prior three complaints, in some instances expanding upon them. These
include allegations of mental, physical, and emotional abuse, assault, attempted
kidnapping, attempted murder, false arrest, malicious prosecution, and unjust conviction
and imprisonment. See Compl. aI l-2, 4-5,8-9, 15,23-24, Dkt. No. 1. They also include
allegations by Mr. O'Diah that he has been subjected to cruel and unusual confinement
involving exposure to radioactive chemicals. See id. at 4, 15,23-24.In addition, Mr.
O'Diah repeats, and sometimes expands upon, prior claims of unlawfirl search, seizure,
and destruction of property, intentional misrepresentation and fraud with respect to his
business activities and child support obligations, "false and contrived statements and
perjured and fabricated testimonies," "retaliatory and discriminatory practices," and
"breaches of implied contract." See id. at 1,34, 17,23-24,26. Mr. O'Diartr also again
alleges, as he did in his prior three complaints, that all ofthese actions, and a conspiracy
to commit the same, have been carried out by a variety of federal entities, officers, and
agents; the state of New York; and state and local level officers and agents, as well as
private entities and his former attorneys. See id. at 2,4-7, 11-18,23-26,
This fourth complaint also includes new ailegations conceming actions ofthe
United States Postal Service, apparently in conspiracy with the Department ofJustice.
See id. at 1,7,2710. According to Mr. O'Diah, the Postal Service deliberately failed to
deliver and/or destroyed a notice of appeal of this Court's decision dismissing his three
earlier complaints. See id. at 27-30.
Mr. O'Diah claims the actions of which he complains resulted in deprivations of
his rights under the United States Constitution, including his rights under the First,
Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. See id. at l-2,4,9,10,291I,
36. He also alleges violations of42 U.S.C. $$ 19S3, 1985, and 1986, as well as intentional
misrepresentation and fraud, negligence, and undefined "joint breaches of fiduciary
duties." See id. at 1,34, 13,17-18,26,31. He also seeks to collaterally attack orders
and judgments by other courts. See id. at 6. Finally, Mr. O'Diah demands $400 billion in
damages and injunctive relief. See id. at 1,35-36.
DISCUSSION
I. Standards for Motion to Dismiss Under RCFC 12(bxl)
The Court of Federal Claims is a court of "limited jurisdiction.,, E4, Marcum
LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). The courr's primary grant of
jurisdiction is found in the Tucker Act, which gives the court jurisdiction ,,to render
judgment upon any claim against the United States founded either upon the constitution,
or any Act ofCongress 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. g 1491(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 plaintiff must identi& an independent source
ofa substantive right to money damages from the United States arising out of a 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 Pac. 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 Inteeration. Inc. v. United States, 659 F.3d 1159, 1163
(Fed. Cir. 2011). Further, it is well established that complaints frled 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. Bernard v. United
States, 59 Fed. Cl.497,499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir. 2004).
II. Application to Mr. O'Diah's Complaint
Applying these standards, the Court concludes that-for much the same reasons
that it dismissed Mr. O'Diah's previous complaint-it also lacks subject matter
jurisdiction over the claims contained in his fourth complaint, which-as best the Court
can understand them-are mostly identical to his previous claims.
First, the Court ofFederal Claims has no jurisdiction to entertain claims against
any defendant other than the United States. See United States v. Sherwood, 312 U.S. 584,
588 ( 1941) ("[]fthe relief sought is against others than the United States the suit as to
them must be ignored as beyond the jurisdiction ofthe court."). Accordingly, Mr.
O'Diah's claims against private entities, organs of state govemment, or any other parties
besides the United States 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, l7 F.3d 378,379 (Fed Cir. 1994). Nor does it extend to
any claims "sounding in tort." See 28 U.S.C. $ 1491(aX1); see also Keene Corp. v.
United States, 508 U.S. 200,214 (1993) ("[T]ort cases are outside the jurisdiction ofthe
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, mental, physical or emotional abuse, intentional
misrepresentation and fraud, breach offiduciary duties and so on, 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
which are based on constitutional provisions that are "money-mandating." See Brown,
105 F.3d at 623; 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 give rise to a
substantive right to money damages. See United States v. Connolly,716 F.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 Pac. 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 Stares, No. 95-5127, 1995 WL
592017, at *2 (Fed. Cir. Oct. 6 1995) (per curiam) (Seventh Amendment); Trafny v.
United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (per curiam) (Eighth Amendment).
Similarly, the Court does not possess jurisdiction to entertain Mr. O' Diah's
claims ofalleged civil rights violations premised upon, among other statutes, sections
1983 and 1985 of Title 42 of the United States Code. See. e.s., Jefferson v. United States,
104 Fed. Cl. 81, 89 (2012) (citing multiple cases holding that the Court ofFederal Claims
lacks jurisdiction to entertain claims brought under 42 U.S.C. $$1983 or 1985).
Furthermore, this Court lacks jurisdiction to review decisions of the Federal
district courts and state courts. Joshua, 17 F.3d at 379 (holding that this Court "does not
have jurisdiction to review the decisions ofdistrict courts . . . relating to proceedings
before those courts"); Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1034 (8th Cir.
1999) (explaining lower Federal courts lack jurisdiction to review state court judgments).
Thus, to the extent Mr. O'Diah asks this Court to review decisions of state and Federal
courts in New York or elsewhere, those claims must be dismissed for lack of
jurisdiction.2
Finally, although this Court possesses jurisdiction under the Tucker Act to
entertain claims founded on conftacts with the United States, Mr. O'Diah has not
adequately alleged the existence of a contract with the United States. See Kam-Almaz v.
United States, 682 F.3d 1364,1368 (Fed. Cir. 2012) (to allege the existence ofa contract
with the United States, a plaintiff must allege "(1) mutuality of intent, (2) consideration,
(3) an unambiguous offer and acceptance, and (4) actual authority on the part ofthe
govemment's representative to bind the government in contract" (quoting Hanlin v.
United States,316 F.3d 1325,1328 (Fed. Cir. 2003))). Mr. O'Diah's allegations also do
not describe any of the terms of the purported contract. Accordingly, Mr. O'Diah has
failed to establish a basis for this Court to exercise jurisdiction pursuant to its authority to
entertain claims based on the breach ofan express or implied contract with the United
States. See Kroll v. Finne4v,242 F.3d 1359,1362 (Fed. Cir. 2001) C'A court must
dismiss a complaint for lack ofsubject matter jurisdiction when the alleged basis for
exercising federal jurisdiction is 'so attenuated and unsubstantial as to be absolutely
devoid of merit."' (quoting Hagans v. Lavine, 415 U.S. 528, 536-37 (1974))); Trauma
'In his complaint, citing RCFC 59 and 60, Mr. O'Diah also appears to ask for
reconsideration of this Court's March 14, 2016 Opinion and Order dismissing his prior
three complaints. But those rules allow a party to request a new trial or reconsideration of
the Court's decision by filing a motion in the case for which such new trial or
reconsideration is sought, not through a collateral attack in some new case.
4
Serv. Grp. v. United States. 104 F.3dll2l, 1325 (Fed. Cir. 1997) (rcquiring a 'lvell-
pleade.dallegatiod' of an express contact 'to overcome challenges to jurisdiction").
CONCLUSION
For the reasons disoussed above, the government's motion to dismiss is hereby
GRANTED and Mr. O'Diab's complaint is DISMISSED without prejudice. The Clerk
is directed to enter judgnent aocordingly.
IT IS SO ORDEREI}.
c-lu-'
ELAINED. KAPLAN
Judge