Elleby v. United States

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Filed: November 3,2017 Nov - 3 20t7
NOT FOR PUBLICATION
U.S. COURT OF
FEDEMLCLAIMS
TAYE LAMONTE ELLEBY, Pro se; Rule 12(bXl); Subject-Matter
Jurisdiction.
Plaintiff,

THE UNITED STA'I'ES,

Defendant.

Taye L. Elleby, Walkhill, NY, plaintiffpro se.

Nathanael Il. Yale,Trial Attorney, Patricia M. McCarthy, Assistant Director, Robert E.
Kirschman, -/r., Director, Chad A. Readler, Acting Assistant Attomey General, Commercial
Litigation Branch, Civil Division, United States Department ol'Justice, Washington, DC, for
defendant.
MEMORANDUM OPINION AND ORDER

GRIGGSBY. Judec

I. INTRODUCTION

Plaintiff pro se, Taye Lamonte Elleby, brought this action alleging various constitutional
and procedural challenges to his criminal conviction and subsequent incarceration for sex
trallicking and promoting prostitution. See generally Compl. In the complaint, plaintiff alleges
that he has been unjustly convicted ofthese crimes because of coerced witness testimony and the
alleged improper actions ofthe judge that presided over his case, in violation of the Sixth,
Seventh, and Fourtcenth Amendments to the United States Constitution. See id. at l-3. Plaintiff
also challenges the dccision ofthe United States District Court for the Southem District ofNew
York to dismiss a civil suit that plaintiff filed to obtain compensation for his alleged unjust
conviction. Id. al2. The govemment has moved to dismiss this matter for lack of subject-matter
jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court ofFederal Claims

?01,7 l,'J50 000[ ],,3t{t 1,08b
('RCFC'). See generally Def. Mot. For the reasons set forth below, the Court GRANTS the
govemment's motion to dismiss and DISMISSES the complaint. RCFC l2(b)(l).

II. FACTUAL AND PROCEDURAL BACKGROUNDI

A. Factual Background

Plainriff pro.se,'faye Lamonte Elleby, was convicted of sex trafficking and promoting
prostitution by the Supreme Court ofthe State ofNew York, New York County, and he is
currently incarcerated in a New York state prison. Compl. at2; see also People v. Elleby,No.
02135-2013 (N.Y.S. filed May 17, 2013) (certificate of disposition indictment). Plaintiff s

oomplaint is difficult to follow. But it appears that plaintiff alleges various constitutional and
procedural challenges to his criminal conviction and subsequent incarceration. See generally

Compl.

Specifically, plaintiff alleges that he was falsely arrested and has been unjustly convicted
due to coerced witness testimony and the alleged improper actions ofthejudge that presided
over his criminal case, in violation ofthe Sixth, Seventh, and Fourteenth Amendments to the
United States Constitution. Id. at l-2. Plaintiff also alleges that the United States District Court
for the Southem District of New York improperly dismissed a civil suit that plaintiff filed to
obtain compensation for his alleged unjust conviction. Id.at2. Laslly, plaintiff alleges what
appears to be a "sovereign citizen" claim, namely, that that the govemment has fraudulently

issued bonds in his name by "pooling them together and making mortgage backed securities."

td.

As relief, plaintiff requests that the Court "void any and all contract[ual] obligations or
bonds." 1d. at 3. Plaintiff also seeks to recover punitive damages in the amount of $30 million
and "nominal damages" in the amount of $2 million "per defendant." 1d.

I The facts recited herein are taken from the complaint ("Compl."). Unless otherwise stated, the fact are
undisputed.
 B. ProceduralBackground

Plaintilf commenced this action on March 14, 2017 . See generally Compl. On June 30,
2017 , the government moved to dismiss the complaint for lack of subject-mattcr jurisdiction,
pursuant to RCFC I 2(b)( I ). See gene rally Def . Mot.

On July 17, 2017 , plaintiff attempted to file a document entitled "plaintiff s motion to
proceed," which the Court retumed to plaintiff unfrled. See Order, dated July 18,2017. On

August 8, 2017 , the Court issued an Order directing plaintiffto show cause for why he failed to
file a timely response to the govemment's motion to dismiss. See generally Order to Show
Cause, dated August 8,2017. On August 18, 2017, plaintiff filed a response to the Court's Order
to Show Cause stating that he intended for his motion to proceed to serve as plaintiff s response
to the govemment's motion to dismiss. See generally PL Resp. to Order to Show Cause; Pl.
opp.

On August 30,2017 , plaintiff filed his motion to proceed as a response to the
govemment's motion to dismiss by leave of the Court. See generally Pl. Opp. On September
29,2011, the govemment filed a reply in support of its motion to dismiss. See ger erally Def .
Reply.

The government's motion to dismiss having been fully briefed, the Court resolves the
pending motion.

III. LEGAL STANDARDS

A. Pra Se Litigants

Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleadings requirements leniently. Beriont v, GTE Labs.,Inc.,535 F.App'x
919,925-26 n.2 (Fed. Cir. 2013) (citingMcZeal v. Sprint Nextel Corp.,501 F.3d 1354, 1356
(Fed. Cir. 2007)).

When determining whether a complaint filedby a pro se plaintiff is sufficient to survive a

motion to dismiss, this Court alfords more leeway under the rules to pro se plaintiffs than to
plaintiffs who are represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972)
(holding that pro se complaints, "however inartfully pleaded," are held to "less stringent
standards than formal pleadings drafted by lawyers"); Matthews v. Uniled States,750 F.3d 1320,
1322 (Fed. Cir.2014). But, there "is no duty on the part ofthe trial court to create a claim which

fthe plaintiffl has not spelled out in his pleadings," Lengen v. United States, I 00 Fed. Cl. 3 I 7,

328 (201l) (brackets existing) (internal quotation omitted).
Whrle "a pro se plaintiff is held to a less stringent standard than that of a plaintiff
represented by an attorney, . . . the pro se plaintiff, nevertheless, bears the burden of establishing

the Court's jurisdiction by a preponderance ofthe evidence." Riles v. United States,93 Fed. Cl.
163, 165(2010)(citingTaylorv.UnitedStates,303F.3d1357,1359(Fed.Cir.2002)). Andso,
the Court may excuse ambiguities, but not defects, in the complaint. Colbertv. United States,
617 F. App'x 981,982 (Fed. Cir. 2015); see also Demes v. United States,52 Fed. Cl. 365, 368
(2002) ("[T]he leniency afford,ed, pro se litigants with respect to mere formalities does not relieve
them of j urisdictional requirements.").

B. Subject-Matter Jurisdiction, RCFC 12(bXl)

When deciding a motion to dismiss based upon lack of subject-matter jurisdiction
pursuant to RCFC l2(b)( I ), the Court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor. ,See

Erickson v. Pordus,55l U.S.89,94 (2007); RCFC 12(bX1). But, plaintiff bears the burden of
establishing subject-matter jurisdiction, and must do so by a preponderance of the evidence.
Reynolds v. Army&Air Force Exch. Serv.,846F.2d'746,748 (Fed. Cir. 1988). Should the
Court determine that "it lacks jurisdiction over the subject matter, it must dismiss the claim."
Matthews v. Unired States,72Fed. CL.274,278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute. . . ." Kokkonen v

Guardian Life Ins. Co. ofAm.,511L U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:

[A]ny 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. $ la9l(a)(1) (2012). The Tucker Act, however, is "a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages . . . . [T]he

Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists." United States v Testan, 424U.5.392,398 (1976). To pursue a

substantive right against the United States under the Tucker Act, a plaintiff must identifu and
plead a money-mandating constitutional provision, statute or regulation, or an express or implied

contract with the United States. Cabral v. United States, 3I 7 F. App'x 979,981 (Fed. Cir. 2008).

Specifically relevant to this matter, the Court "does not have jurisdiction to review tlle
decisions ofdistrict courts or the clerks ofdistrict courts relating to proceedings before those
courts." Joshua v. United States,17 F.3d,378,380 (Fed. Cir. 1994); see also Jones v. United
Srares, No. l5-1044,2016 WL 447144, at *1 (Fed. Cl. Feb.4, 201,6). lt is also well-established
that the Court does not possess jurisdiction to review or to consider criminal matters. .See

Cooper v. United States,104 Fed. Cl. 306, 311-12 (2012) (holding that this Court cannot review
criminal matters).

C. Contracts With The United States

Lastly, under the Tucker Act, the Court possesses jurisdiction to consider claims based
"upon any express or implied contract with the United States." 28 U.S.C. $ 1491(a)(1). But, the
Court does not possess jurisdiction to consider claims against the United States "based on
contracts implied in law." See, e.g. United States v. Mitchell,463 U.S. 206,218 (1983) (citing
Merrittv. UnitedStates,26T U.5.338,341 (1925));Aboov. UnitedStates,86 Fed. Cl. 618,626,
alf'd,347 F. App'x 581 (Fed. Cir. 2009). And so, to bring a valid contract claim against the
United States in this Court, the underlying contract must be either express or implied-in-fact.
Aboo, 86 Fed. CI. at 626-27 .

To establish the existence ofeither an express or implied-in-fact contract with the United
States, a plaintiff must show: (l) mutuality of intent; (2) consideration; (3) lack of ambiguity in
the offer and acceptance; and (4) actual authority to bind the govemment in contract on the part

ofthe govemrnent official whose conduct is relied upon. Kam-Almaz v. United Stdtes,682 F.3d
1364, 1368 (Fed. Cir.2012);see e.g. Flexfab, L.L.C. v. UnitedStares,424F.3d, 1254,1265 (Fed.
Cir. 2005) (citations omitted) (The "govemment consents to be sued only by those with whom it
has privity of contract."). A plaintiff must suppo( a contract claim with well-pleaded allegations
going to each element ofa contract to pursue a contract claim under the Tucker Act. See
Crewzers Fire Crew Transp. Inc. v. United States, T4l F.3d 1380, 1382 (Fed. Cir. 2014)
(emphasis added) (holding that to invoke the jurisdiction of this Court under the Tucker Act, a
plaintiff must present a well-pleaded allegation that its claims arose out of a valid contract with
the United States); see a/so RCFC 9(k) ("ln pleading a claim founded on a contract or treaty, a
party must identily the substantive provisions of the contract or treaty on which the party
relies."). In addition, a government official's actual authority to bind the United States must be
express or implied. Roy v. United Stares, 38 Fed. Cl. 184, 188-89, appeal dismissed, 124 F .3d

224 (Fed. Cir. I 997). And so, "the [g]ovemment, unlike private parlies, cannot be bound by the

apparent authority of its agents."2 Id. at 187.

IV. DISCUSSION

The govemment has moved to dismiss this matter for lack of subj ectmatter jurisdiction
upon the grounds that: (1) plaintifffails to assert a money-mandating constitutional provision to
establish jurisdiction under the Tucker Act; (2) the Court may not consider plaintiff s civil rights
claim based upon 42 U.S.C. $ 1983; (3) the Court may not review district court proceedings; (4)
plaintifffails to assert a non-frivolous unjust conviction claim under 28 U.S.C. $ 1a95; (5)

plaintiff s claim that the government holds bonds in his name is insufficient to invoke the
Court's jurisdiction; and (6) plaintifffails to assert a non-frivolous claim that he has a valid
contract with the government. Def. Mot. at2-5;Def . Reply at 3.

For the reasons discussed below, the Court does not possess subject-matter jurisdiction to
consider any of plaintiff s claims. I And so, the Court GRANTS the govemment's motion to
dismiss and DISMISSES the complaint. RCFC 12(bX1).

2
A government official possesses express actual authority to bind the United States in contract "only
when the Constitution, a statute, or a regulation grants it to that agent in unambiguous terms." Jumah v.
United States,90 Fed. Cl. 603,612 (2009), affd,385 F. App'x 987 (Fed. Cir. 2010) (intemal citations
omitted); seealsoCityof El Centro v. United States,922 F.2d 816, 820 (Fed. Cir. 1990). On the other
hand, a government official possesses implied actual authority to bind the United States in contract "when
the employee cannot pedorm his assigned tasks without such authority and when the relevant agency's
regulations do not grant the authority to other agency employees." SGS-92-X003 v. United States,74 Fed.
Cl. 637 , 652 (2006) (citations omitted). In addition, when a government agent does not possess express
or implied actual authority to bind the United Stales in contract, the government can still be bound by
contract if the conlract was ratified by an official with the necessary authority. Janowsky v. United States,
133 F.3d 888, 891-92 (Fed. Cir. 1998).

3
The gouernrnent has also moved to dismiss plaintiff s complaint for failing to assert "'a sho( and plain
statement ofthe grounds for the court's j urisdiction, "' pursuant to RCFC 8(a)(l). ,Sea Def. Mot. at 3. The
Court observes that it grants parties proceeding pro se Erealer leeway than litigants represented by
counsef in drafting the complaint. See Haines v. Kerner,404 U.S. 5 19, 520-21 (1972).
 A. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Claims

l. The Court May Not Entertain Plaintiff s Constitutional Claims

As an initial matter, the Court may not entertain plaintifls constitutional claims, because
these claims are not based upon money-mandating sources of law. In the complaint, plaintiff
alleges that he has been unjustly convicted and sentenced to incarceration, in violation ofthe
Sixth, Seventh, and Foufteenth Amendments to the United States Constitution. See generally
Compl. The Court may not consider plaintiff s claims.

Indeed, it is well-established that the Court does not possess jurisdiction to consider
claims based upon the Sixth Amendment to the tJnited States Constitution. Godfrey v. United
States 131 Fed. Cl. I 1 |, 120 (2017) (holding the court does not have jurisdiction to adjudicate
civil claims in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments because

they are not money-mandating). This Cou( has also long held that the Seventh Amendment is
not a money-mandating source of law that can be relied upon to establish jurisdiction under the
Tucker Act. Harris v. United States, I 18 Fed. Cl. 180, 190(2014). In addition, the Federal
Circuit has held that this Court does not possess subject-matter jurisdiction to consider claims
based upon thc equal protection and due process clauses of the Fourteenth Amendment. See

LeBlanc v. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995); see also Quailes v. United States,
25 Cl. Ct. 659, 664, alf'd,979 F.2d 216 (Fed. Cir. 1992) (citation omitted) ("This court does not
have jurisdiction . . . because neither the due process or equal protection clauses ofthe
Constitution 'obligate the United States to pay money damages."'). And so, the Court must
dismiss plaintifls constitutional claims for lack of subject-matter jurisdiction. RCFC l2(bX1).

2. The Court May Not Consider Plaintiff s Civil Rights Claim

The Court is similarly without jurisdiction to consider plaintiffs civil rights claim based
upon Section 1983. In the complaint, plaintiff alleges that a judge for the United States District

Courl for the Southern District of New York violated 42 U.S.C. $ 1983, by dismissing plaintiff s

unjust conviclion case before the district court. See Compl. at 2. This Court has long recognized
that j urisdiction over civil rights claims broughl pursuant to Section 1983 "is vested exclusively
in the district courts." See, e.g. Taylor v. United States, 130 Fed. Cl. 570, 572, affd, 666 F.
App'x 896 (Fed. Cir. 2016) (citations omitted); see also Marlin v. United States,63 Fed. Cl. 475,
476 (2005) (holding "jurisdiction over claims under the Civil Rights Act resides exclusively in
the district courts."). And so, the court may not entertain plaintiff s civil rights claim inthis
action. RCFC 12(bX1).

3. The Court May Not Review Proceedings Before A District Court

To the extent that plaintiff seeks a review of the district court's decision to dismiss his
unjust conviction case, the Court is also precluded lrom considering this claim. The Federal
Circuit has held that this Court does not possess subject-matter jurisdiction to review the
decisions ofdistrict courts relating to proceedings before those cottts. Joshua, 17 F.3d at 380
(Court lacks jurisdiction to entertain appeal of district court review of state criminal
proceedings); see also Mora v. {Jnited states,ll8 Fed. Cl. 713, 716 (2014) ("[T]his court does

not have jurisdiction to review the decisions of state courts, federal bankruptcy courts, federal
district courts, or federal circuit courts of appeals. "); Jones, No. I 5- 1044, 2016 WL 447144, at

*1; Cqrter v. United states,228 Ct. Cl.898,900 (1981). And so, the court must dismiss

plaintiff s challenge to the district court's decision. RCFC 12(b)(l)'

4. The Court May Not Consider Plaintiff s Unjust Conviction Claim

Plaintifls unjust conviction claim is also jurisdictionally precluded, because plaintiff has

not established -or even alleged-that his criminal conviction has been reversed or set aside in
the complaint, plaintiff alleges that he has been unjustly convicted due to a false arrest and
witness coercion. comp. at l-2. But, plaintiffdoes not allege that a court has set aside or

reversed his criminal conviction for sex trafficking and promoting prostitution.
Id at l: see also

Def. Mot. at 4.

This court may "renderjudgment upon any claim ior damages by any person unjustly
convicted of an offense against the United States and imprisoned." 28 U.S.C. $ 1495. But, a
plaintiff seeking to challenge a criminal conviction as unjust under Section 1495 must also

of
[h]is conviction has been reversed or set aside" with a certificate
.,allege and prove that . . .

innocence from the court that ordered such a reversal. 28 U.S.C. $ 2513 Salman
v. United

states,69 Fed. cl. 36, 39 (2005) (citing Lucas v. united States,228 CI. Cl.862, 863 (1981)

(..1'he unjust conviction statutes do not give th[is] Court authority to review and overtum

convictions entered by a court of competent jurisdiction'")
 Here, plaintiffhas not alleged that his conviction has been set aside or reversed, nor has
plaintiff provided a certificate ofinnocence. See Compl. at 1;Def. Mot. at4-5. Given this, the
Court must dismiss plaintiffs unjust conviction claim.a RCFC 12(bxl) and (b)(6).

5. Plaintiffs Sovereign Citizen Claim Is Jurisdictionally Precluded

As a final matter, the Court must also dismiss plaintiff s "sovereign citizen" claim,
because this claim is jurisdictionally precluded under the Tucker Act. In the complaint, plaintiff

appears to allege, among other things, that the govemment has fraudulently issued bonds in his

name without plaintiif s consent. Compl. at 2. Plaintiff s claim appears to be based upon the

ideology ofthe "sovereign citizen movement," which seeks to recover money purportedly paid to
the government in the form oftaxes. see, e.g., Gravntt v. United states, i00 Fed. cL.279,282
(201 1) (explainingpro se prisoner's allegation ofnot consenting to citizenship and requesting a
refund from the govemment for his federal taxes that are held within a trust account); Troxelle v.
{Jnited states, No. 10-312C, 2010 WL 3982349, at
*i (Fed. cl. oct. 6,20i0) (unpublished
opinion) (describing the plaintiffs allegations that the issuance ofhis birth certificate and social
security number created debts that the govemment was required to repay to him)'

As the government notes in its motion to dismiss, this Court has held that such claims are
.,frivolous," because "[n]either birth certificates nor social security numbers recognize or impose

contractual rights, obligations, or duties[.]" Riverav. united States,l05 Fed. Cl.644'650
(2012) (quoting Gravatt, 100 Fed. cl. at 286); see also Def . Mot. at 5. Plaintiffalso does not

establish the elements necessary to show that he has either an express or implied-in-fact contract
with the government in the complaint. s'ee compl. at2-3; see also Total Med. Mgmt., Inc. v.

Llnited States,104 F.3d 1314, 1319 (i997) (To establish an express or implied-in-fact conhact
with the govemment, plaintiff must allege facts which demonstrate "a mutual intent to contract
including offer, acceptance, and consideration; and authority on the part of the government
representative who entered or ratified the agreement to bind the United States in contract.").

presided over
4
This Court also may not consider a claim against the New York state courtjudge that
plaintiff s criminal tiial, orclaims against the other individuals named inthe complaint. Stephenson v.
'unitecl existing) (citations omitted) ("[T]he only proper
st'ttes,58 Fed. Cl. ls6, 190 (2003) (emphasis
Jefendant forany matter before this court is the United States, not its offrcers, nor any other individual'");
see also Comql. at 1-2.
And so, the Court must also dismiss plaintiffs "sovereign citizen" claim for lack of subject-
matter jurisdiction. RCFC 12(bxl).

V. CONCLUSION

In sum, even the most generous reading of plaintiff s complaint makes clear that the
Court does not possess subject-matter jurisdiction to consider any of plaintiff s claims. And so,
the Court must dismiss this matter for lack of subject-matter jurisdiction, pursuant to RCFC
12(bX1).

In light of the foregoing, the Court GRANTS the govemment's motion to dismiss and
DISMISSES the complaint.

The Clerk's Office is directed to ENTER final judgment in favor of the government

DISMISSING the comPlaint.

No Costs.

IT IS SO ORDERED.

10