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No. 16-1126L (Pro Se)
(Filed: February 13,2017 | Not for Publication) FEB r 3 2017
U.S. COURT OF
FEDERAL CLAIMS
Keywords: Pro Se Complaint; Motion to
KEVIN LEIGH MOORE, Dismiss; RCFC 12(b)(1); RCFC 12(b)(6);
Tucker Act.
Plaintifi
THE UNITED STATES OF AMERICA,
Defendant.
Kevin Leigh Moore, Careywood, ID, Plaintiff Pro Se.
Dayene D. Il allcer, Tnal Attomey, Environment
and Natural Resources Division, U.S.
Depanment of Justice, Washington, DC, for Defendant, with whomwas Jeffrey H. Wood, Acting
Assistant Attomey General.
OPINION AND ORDER
KAPLAN, Judge.
The pro se plaintiff in this case, Kevin Leigh Moore, filed a complaint in this Court on
September 12,2016. Much of the complaint is handwritten and difficult to read and./or
understand. It appears that Mr. Moore seeks damages for unspecified claims related to a
"watershed drainage area" and "culvert sizing." Currently before the Court is the govemment's
motion to dismiss the complaint. For the reasons discussed below, the govemment's motion is
GRANTED and the complaint is DISMISSED.I
BACKGROUND
As noted above, Mr. Moore filed a handwritten complaint whose legal basis is difficult, if
not impossible, to discem. In the complaint, he notes that he is suffering from an "ongoing
'nuisance' - impounding/flooding." Compl. at 1, Docket No. 1 . Mr. Moore asserts that the "core
issue is watershed drainage arealculvert sizing" and that "constitutional law (5th amen [sic] prop.
rights) and environmental law(s) - require[] 'remedial action."' Id. He additionally alleges that a
number of"entities" have "abrogat[ed] their due diligence . . . instead of stepping up." Id. Mr.
I Mr. Moore has frled a motion to proceed in forma pauperis. Docket
No. 3. The Court
GRANTS that motion solely for purposes of dismissing his complaint.
?01,q 1e0B 0008 1013 Es?h
Moore then also indicates that a train derailment in March 2016 due to a "compromised rail bed"
is the "latest incident" for which he apparently seeks redress. Id. at 2.
Mr. Moore continues in his complaint by alleging that Bonner County (presumably
Bonner County, Idaho) has "broken/violated their swom oath(s) to/for federal, state, co[unty]
laws (guidelines) and to the service of protecting life, liberty, [and] justice, (sacrocont [sic]
property rights and environmental integrity)." Id. at 3. He also describes allegations against
"IDT,"'IDEQ," "IDNR," and the state of Idaho. Id. at 5. Mr. Moore asserts that "[t]hese entities
became complicit. . . in'variance' of 1998 reconstruction of said conveyance mistake of
calculation of drainage area." Id. He further alleges that "IDT" allowed construction to occw
"without typical permitting." Id. Mr. Moore states as well that a 1998 permit from "COE" was
involved in this issue. Id. at 6.
Additionally, Mr. Moore complains of an "inadequate conveyance," in which .,COE,
IDWR, IDEQ, BC SC, BC RB, BC PZ, FEMA, EPA and others" "each hav[e] their own
particular connection." See id. at 7. He also asserts that three "404's" were negligently issued in
1998, which resulted in "undue, unnatural water accumulation," which has led to Mr. Moore.'not
hav[ing] the reasonable due for the 'enjoying' of [his] own personal property (5th Amend-
inverse condemnation/regulatory taking)." Id.
Mr. Moore also attached to the complaint a number of documents and photographs,
including state regulations, state permit applications, emails, ald maps. See id. at 9-44. On the
Form 2 Cover Sheet with his complaint, Mr. Moore indicated that the nature of his suit was for a
taking, and he identified the Department of Defense and Environmental Protection Agency as the
relevant federal agencies. Docket No. 1-1.
On November 14,2016, the govemment filed a motion to dismiss pursuant to Rules
12(bXl) and l2(b)(6) of the Rules of the Court of Federal Claims (RCFO.2 Docket No. 5. Mr.
Moore failed to file a response and the Court issued an order to show cause as to why Mr.
Moore's claim should not be dismissed for failure to prosecute or to follow the RCFC. order,
Docket No' 6. Mr. Moore did not file a timely response to the order to show cause and the Court
initially dismissed Mr. Moore's complaint on January 31,2017, pursuant to RCFC 4l(b). See
Order, Docket No. 9. The Court, however, received a belated document from Mr. Moore, which
it deemed a response to both the order to show cause and the govemment's motion. See id. It
therefore vacated the original dismissal and entry ofjudgment and reopened the case to proceed
to a decision on the governrnent's motion. See id.
Mr. Moore's response stated that he had been "put on a maintenance schedule" but
realized that this was a "lie" and "stonewalling." Pl.'s Response at l, Docket No. 10. He also
asserted that he had presented a "preponderance of evidence" to "numerous entities includins
-
2
The govemment's motion also included an altemative request for a more definite statement
pursuant to RCFC 12(e). Def.'s Mot. to Dismiss or for a More Definite statement (Def.'s Mot.)
at l.
COE, EPA, FEMA, etc." Id. He requested unspecified injunctive relief as well as
"reparations/restitution." Id.
DISCUSSION
I. The Government's Motion to Dismiss Pursuant to RCFC 12(b)(1)
The govemment has moved to dismiss Mr. Moore's complaint on the grounds that the
Court lacks subject matter jurisdiction over it. Def.'s Mot. at 1. 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 ofthe plaintiff. Trusted Intesration. Inc. v.
United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). However, ifa movant disputes the basis of
the Court's jurisdiction, the allegations in the complaint are not controlling and the Court may
review evidence extrinsic to the pleadings. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573,
1583-84 Ged. Cir. 1993).
It is well-established that cornplaints that are filed by pro se plaintiffs, like this one, are
held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,
404 U.S. 519, 520 ( 1972). Nonetheless, a plaintiff bears the burden of establishing subject matter
jurisdiction by a preponderance ofthe evidence. Brandt v. United States, 710 F.3d 1369,1373
(Fed. Cir. 2013); see also Rerrnolds v. Armv & Air Force Exch. Serv.,846F.2d746,748 (Fed,.
Cir. 1988). Therefore, even pro se plaintiffs must persuade the Court that jurisdictional
requirements have been met. Bernard v. United States, 59 Fed. Cl. 497 , 499, af? d, 98 F. App'x
860 (Fed. Cir. 2004); see also Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 2014)
("[T]he leniency afforded to a pro se litigant with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements." (quotation and citation omitted)).
The Tucker Act grants the United States Court of Federal Claims the power "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. $ 1491(a).It serves as a waiver of sovereign immunity and a jurisdictional
gant, but it does not create a substantive cause of action. 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 to money damages." Id. (quoting
Fisher v. United States , 402 F .3d 1167 , 1172 (Fed. Cir. 2005) (en banc in relevant part)); Rick's
Mushroom Serv." Inc. v. United States , 521 F .3d 1338, 1343 (Fed. Cir. 2008) (stating that a
"plaintiffmust look beyond the Tucker Act to identi$ a substantive source of law that creates
the right to recovery ofmoney damages against the United States" (citation omitted)).
Here, Mr. Moore's concems appear to be primarily based on actions allegedly taken (or
not taken) by the state ofldaho, one of its political subdivisions, and a number of state agencies.
See Compl. at 3, 5,7 . All of these claims must be dismissed, as the Court has no jurisdiction over
claims against any defendant other than the United States. See United States v. Sherwood, 312
U.S. 584, 588 (1941) ("[]f the relief sought is against others than the United States the suit as to
them must be ignored as beyond the jurisdiction of the court."); Jiron v. United States, 118 Fed.
Cl. 190, 198-99 (2014) ("h is well settled that the United States is the only proper defendant in
the United States Court of Federal Claims." (quotation omitted)).
With respect to the United States as a defendant, it is difficult to identifu any claims for
money damages from the federal government. While at times Mr. Moore alludes to federal
agencies such as FEMA or the EPA, or perhaps the U.S. Army Corps ofEngineers, he does not
make any allegations that he is entitled to money damages based on any conduct on their part.
That is, Mr. Moore fails to identifu any substantive source of law creating the right to money
damages from the United States for most of the allegations he attempts to make in his complaint.
Further, to the extent he is asserting claims for nuisance or negligence, both are tort claims
outside the jurisdiction ofthe Court.28 U.S.C. $ 1491(a); Keene Corp. v. United States,508
U.S. 200, 214 (1993) ("[T]ort cases are outside the jurisdiction ofthe Court of Federal
Claims....").
On the other hand, Mr. Moore does at times make passing references to a taking i-n
violation of the Fifth Amendment. See Compl. at 7. The Takings Clause of the Fifth Amendment
is a money-mandating source of law for purposes ofTucker Act jurisdiction. Jan's Helicopter
Serv.. Inc., 525 F.3d at 1309. For the Court to have subject matter jurisdiction over such a claim,
however, the allegation must be ofa taking of property by the federal eovemment. See id. As
discussed below, Mr. Moore does not allege any facts in his complaint to support an
uncompensated taking ofhis property by the federal govemment. For that reason, the Court lacks
subject matter jurisdiction over this claim as well.
Even if, as the govemment generously interprets the complaint, Mr. Moore is making an
allegation that the taking resulted from the issuance of Section 404 permits by the U.S. Army
Corps of Engineers, see Def.'s Mot. at24, such a claim would be baned by the statute of
limitations, also depriving the Court ofsubject matter jurisdiction. "Every claim of which the
United States Court ofFederal Claims has jurisdiction shall be barred unless the petition thereon
is filed within six years after such claim first accrues." 28 U.S.C. $ 2501. The Tucker Act's six-
year statute of limitations is jurisdictional in natwe. Shoshone Indian Tribe of the Wind River
Reservation v. United States,672 F.3d 1021, 1029 (Fed. Cir. 2012) (citing John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, i36-39 (2008)). Mr. Moore alleges that the "404"
permits were issued in 1998. Compl. at 7. He also indicates that as far back as 2007 he was
contacting the "entities" named in his complaint regarding this "contention." See id. Thus, his
complaint, filed September 12,2016, is baned by the statute of limitations with respect to this
alleged taking.
Accordingly, for the reasons discussed above, the Court lacks subject matter jurisdiction
over the allegations contained in Mr. Moore's complaint and it must be dismissed pursuant to
RCFC 12(bX1).
II. The Government's Motion to Disrniss Pursuant to RCFC 12(bX6)
To the extent Mr. Moore's complaint can be construed as asserting any claims over
which this Court has jurisdiction, it must also be dismissed for failing to state a claim upon
which relief can be granted. When considering a motion to dismiss for failure to state a claim
under RCFC 12(b)(6), the court accepts as true the complaint's undisputed factual allegations
and construes them in the light most favorable to the plaintiff. Ashcroft v. Iobal,556U.5.662,
678 (2009). The court also draws all reasonable inferences in favor ofthe non-moving party.
Sommers Oil Co. v. United States,241F.3d,1375,1378 (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 plaintifPs
claim must be plausible on its face. Id. at 570; see also Acceptance Ins. Cos.. lnc. 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 Twombly, 550 U.S. at 556).
Here, Mr. Moore does not plead in the complaint any factual content identiling
misconduct on the part ofthe United States or any federal govemment actor, much less factual
content that would allow the Court "to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678. When Mr. Moore alludes to a taking in his
complaint, he fails to plead what action resulted in the taking or who performed that action. See
Compl. at 1, 7. In other words, any allegation that the United States is liable for an
uncompensated taking under the Fifth Amendment is not plausible on the face of Mr. Moore's
complaint. He also fails to plead sufficient factual allegations to identiff any otler cause of
action which could provide a basis for relief. For these reasons, Mr. Moore has failed to state a
claim upon which reliefcan be granted and, accordingly, his complaint must be dismissed.
CONCLUSION
For the reasons discussed above, the govemment's motion to dismiss is GRANTED and
the complaint is DISMISSED without prejudice. Because the Court grants the govemment's
motion to dismiss, the govemment's motion for a more definite statement is DENIED as moot.
The Clerk is directed to enter judgment accordingly. Each party shall bear its own costs.
IT IS SO ORDERED.
ELAINED. KAPLAN
Judge