Embrey v. United States

In the Anited States Court of Federal Clans

No. 19-740C
(Filed December 11, 2020)
NOT FOR PUBLICATION

Ce a ee ee ee ee a

WILLIAM J.R. EMBREY,
Plaintiff,

Y.

THE UNITED STATES,

Defendant.

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a i ee ee ee ee ee ee

MEMORANDUM OPINION AND ORDER

WOLSKI, Senior Judge.

Plaintiff William J.R. Embrey, proceeding pro se, alleges that the government
unlawfully held him in prison for an additional 508 days past the expiration of his
sentence. Mister Embrey requests $254,000 in damages, $1 million in punitive
damages, and attorney's fees. Alternatively, plaintiff has moved for the transfer of
his case to another court. The government moved to dismiss the case for lack of
subject-matter jurisdiction under Rule 12(b)(1) of the Rules of the United States
Court of Federal Claims (RCFC). For the reasons stated below, the motion to
dismiss the case is GRANTED and the motion to transfer the case is DENIED.

I. BACKGROUND

On April 24, 2000, the United States District Court for the Western District
of Missouri sentenced plaintiff to 262 months’ imprisonment for being a felon in
possession of a firearm.! Compl. at 3, ECF No. 1. Prior to that, however, plaintiff
was held for 508 days in presentence detention. Plaintiff maintains the Federal
Bureau of Prisons (BOP) credited those 508 days against his sentence, which,

! The Court takes judicial notice of prior proceedings involving Mr. Embrey. See
generally United States v. Embrey, 250 F.3d 1181 (8th Cir. 2001).

combined with good time credit, apparently would have allowed him to reenter
society on June 24, 2017. Compl. at 3~4 (citing, inter alia, 18 U.S.C. § 3585(b)); Exs.
A-C, ECF No. 1-1. When that date came to pass, however, the BOP did not release
plaintiff. Compl. at 4. Mister Embrey claims that he notified the BOP and other
authorities multiple times about his release date, yet these protestations fell on deaf
ears. Id. The BOP subsequently released plaintiff on November 18, 2018. Id.
Consequently, plaintiff maintains that he was illegally imprisoned from June 24,
2017 until November 13, 2018---a prison overstay of 508 days. Id.

Mister Embrey thus filed the complaint in this court, seeking $500 per day of
his alleged prison overstay, $1 million in punitive damages, attorney’s fees, and
other relief. Compl. at 8.2 Plaintiff accuses the government of gross neghgence;
false imprisonment; violating his Fourth Amendment rights through unlawful
seizure; violating his Fifth Amendment rights by denying him due process; and
violating his Eighth Amendment right to be free from cruel and unusual
punishment. See id. at 1-3. Mister Embrey contends that the government's failure
to release him from prison on June 24, 2017, violated 18 U.S.C. §§ 3624(a) and
A001(a). Id. at 7. Plaintiff maintains that this court has jurisdiction under Article
III, Section 2 of the United States Constitution; the Fourth, Fifth, and Eighth
Amendments: several United States Supreme Court cases;? the Federal Tort Claims
Act, 28 U.S.C. § 1846; and 28 U.S.C. §§ 1831, 1651{a), 1491-1509, and 2679(a). Id.
at 3-4.

The government has moved to dismiss the case for lack of subject-matter
jurisdiction under RCFC 12(b)(1), arguing that Mr. Embrey has failed to identify a
money-mandating law that was purportedly violated. Def.’s Mot. to Dismiss (Def.’s
Mot.), ECF No. 8, at 1, 3-5. Mister Embrey responded to the government’s motion,
reiterating his contentions that this court has jurisdiction under the previously-
asserted sources of law. See Pl.’s Pro Se Objs. & Answer to Def.’s Mot. (Pl.’s Resp.),
ECF No. 12, at 4—-5.4 In that paper, Mr. Embrey also requests that the Court

2 Our court is not authorized to award punitive damages, see Hoffland v. United
States, 231 Ct. Cl. 922, 923—24 (1982), nor may pro se litigants receive an award of
attorney's fees, see Naekel v. Dep’t of Transp., 845 F.2d 976, 981 (Fed. Cir. 1988).

3 Specifically, in the order raised in the complaint, these cases are: Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); Butz v.
Economou, 488 U.S. 478 (1978); Marbury v. Madison, 5 U.S. (1 Cranch) 187 (1808);
and Bell v. Hood, 327 U.S. 678 (1946).

1 The one statute that was mentioned in the complaint but omitted from Mr,
Embrey’s response paper was 28 U.S.C. § 2679(a).

2.

transfer his case to a court of competent jurisdiction if the Court determines it lacks
jurisdiction.® Id. at 8. The government replied, explaining that none of the
constitutional provisions relied upon by plaintiff confers jurisdiction on this court to
hear Mr. Embyey’s claims. Def.’s Reply, ECF No. 13, at 3. At no point in its reply
did the government challenge, much less address, Mr. Embrey’s motion in the
alternative to transfer his case.

Plaintiff subsequently filed a sur-reply by leave of the Court. See Pl.’s Pro Se
Answer to the Def.’s Reply (P1.’s Sur-reply), ECF No. 14. Therein, Mr. Embrey
repeats his contention that the Court possesses jurisdiction to hear his claims under
Bivens and Article ITI, Section 2, while also suggesting that Article VI, Section 1,
Clauses 2 and 3 of the U.S. Constitution (the Supremacy and Oaths Clauses,
respectively) may also be bases for this court’s jurisdiction.® Jd, at 3. He also
renews his request in the alternative for a transfer of the case. Id. at 3~4.

II. DISCUSSION

A, Standard of Review

Under RCFC 12(b)(1), this court must dismiss claims that do not fall within
its subject-matter jurisdiction. When considering a motion to dismiss a case for lack
of subject-matter jurisdiction under RCFC 12(b)(1), courts will accept as true all
factual allegations made by the non-moving party and draw all reasonable
inferences in the light most favorable to that party. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Airport Rd. Assocs., Lid. v. United States, 866 F.3d 1346, 1351 (Fed.
Cir, 2017) (quoting Pixton v. B & B Plastics, Inc., 291 F.3d 13824, 1326 (Fed. Cir.
2002)) (stating that courts must “view the alleged facts in the complaint as true,
and if the facts reveal any reasonable basis upon which the non-movant may
prevail, dismissal is inappropriate.”); CBY Design Builders v. United States, 105
Fed. Cl. 308, 325 (2012).

5 The Court construes Mr. Embrey’s filing to contain a motion in the alternative to
transfer his case. See Erickson v. Pardus, 551 U.S, 89, 94 (2007) CA document filed
pro se is ‘to be liberally construed[.]”) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).

6 Although plaintiff does not include these two clauses in the section of the sur-
reply discussing jurisdiction, the language of the sur-reply reads as an exhortation
that the Court act to provide redress. See Sur-reply at 3 (‘This Court (Judge) is
obligated under Article TIT[,] Section 2, and Article VI[,] Clauses 2-3 [sic] of the
Constitution of the United States... and its Oath of Office ... te protect Plaintiff
and his constitutional rights under that Constitution.”). Consequently, the Court
construes this is an assertion that these clauses provide for our jurisdiction.

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A pro se litigant’s complaint is to be construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 98 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (“Our previous decisions have
made clear that pro se filings must be read liberally.”) (citations omitted). With due
regard to the leniency a court must afford to plaintiffs proceeding without the
assistance of counsel, see, e.g., Castro v. United States, 540 U.S. 375, 381-82 (2003);
Estelle, 429 U.S. at 106; Haines v. Kerner, 404 U.S. 519, 520-21 (1972), they are not
relieved of the bedrock requirement of pleading sufficient facts to state a claim
within this court's jurisdiction by a preponderance of the evidence. See Henke v.
United States, 60 F.3d 795, 799 (Fed. Cir. 1995); Reynolds v. Army & Atr Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936); Taylor v. United States, 113 Fed. CL. 171, 173
(2018) ({F]ailures to comply with the Court’s jurisdictional requirements are not
excused.”). Thus, it is plaintiff's burden to invoke this court’s jurisdiction (in cases
not involving an alleged breach of contract by the federal government) by
identifying a money-mandating source of law which was allegedly violated by the
United States. See United States v. Mitchell, 463 U.S. 206, 216-17 (1983),

B. Analysis

Like many individuals who proceed in our court without the assistance of
counsel, Mr. Embrey appears to misunderstand the purpose of the Court of Federal
Claims and the jurisdiction given to it by Congress. Our court is primarily
empowered, under the Tucker Act, to hear cases brought against the United States
government by parties alleging the breach of a contract or the violation of laws
requiring the federal government to pay money damages. See 28 U.S.C. § 1491(a);
Mitchell, 463 U.S. at 216-17; Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.
2013) (“To be cognizable under the Tucker Act, the claim must be for money
damages against the United States, and the substantive law must be money-
mandating.”), As we shall see, although Mr. Embrey cites the Tucker Act, Compl.
at 2, he fails to allege that the federal government violated a money-mandating
provision of law.

As defendant notes in its motion to dismiss the case, this court is empowered
to hear prison-related claims for money damages in the limited context of an
overturned, unjust conviction. See Def.’s Mot. at 4 (citing Humphrey v. United
States, 52 Fed. Cl. 598, 596 (2002)). Mister Embrey does not allege that he suffered
an unjust conviction; instead, he appears to bring the two tort claims of gross
negligence and false imprisonment, for which he cites several portions of Title 28 of
the U.S. Code in support of our jurisdiction. See Compl. at 2. But claims sounding
in tort are expressly excluded from the jurisdiction granted to our court by
Congress. See 28 U.S.C. § 1491(a) (restricting our court’s jurisdiction to “cases not
sounding in tort”); see also Robleto v. United States, 634 F. App’x 306, 308 (Fed. Cir.

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2015) (‘Congress has provided that the United States District Courts have
‘exclusive jurisdiction’ to determine the lability of the United States under the
Federal Tort Claims Act.”); Wood v. United States, 961 F.2d 195, 197 (Fed. Cir.
1992) (“[T}he Claims Court has jurisdiction over all ... claims [against the United
States based on the Constitution, federal statutes, federal regulations, and
contracts with the United States], while the district courts have .. . exclusive
jurisdiction over tort claims for any amount if they fall within the Federal Tort
Claims Act.”). The Court therefore cannot hear these two claims.

To the extent Mr. Embrey brings constitutional claims, those, too, must fail.
The Court lacks jurisdiction to hear his Fourth Amendment claim. See Brown v.
United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (“Because monetary damages are
not available for a Fourth Amendment violation, the Court of Federal Claims does
not have jurisdiction over such a violation.”); Dupre v. United States, 229 Ct. CL.
706, 706 (1981) (per curiam) (holding that the Fourth Amendment does not
“obligate the United States to pay money damages”). Mister Embrey’s claim that
the government violated his Fifth Amendment due process rights also fall outside
the ambit of our jurisdiction. See LeBlanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir, 1995) (holding that the Fifth Amendment Due Process Clause is not “a
sufficient basis for jurisdiction” because it does not “mandate payment of money by
the government.”).? Similarly, the Eighth Amendment is not money-mandating,
and thus Mr. Embrey’s claim under that provision falls outside of this court’s
jurisdiction. See Trafny v. United States, 503 F.8d 1339, 1340 (Fed. Cir, 2007) (per
curiam) (“The Court of Federal Claims does not have jurisdiction over claims arising
under the Eighth Amendment, as the Eighth Amendment is not a ‘money-
mandating provision.”) (citation omitted).

Next, the Court lacks jurisdiction over Mr. Embrey’s Bivens claims as well.®
The Bivens remedy fashioned by the Supreme Court created a constitutional right of
action against federal government officials in their individual capacities for
violations of a plaintiff's constitutional rights. See Carlson v. Green, 446 U.S. 14, 18
(1980). Importantly, this individual-centered remedy contravenes the grant of
jurisdiction found in the Tucker Act. See Brown, 105 F.3d at 624 (“The Tucker Act
grants the Court of Federal Claims jurisdiction over suits against the United States,

7 The Due Process Clause can only be the basis for our jurisdiction when a plaintiff
alleges an illegal exaction of money, see Aerolineas Argentinas v. United States, 77
F.3d 1564, 1573 (Fed. Cir. 1996), which is not the case here.

8 The Court assumes, without deciding, that plaintiffis attempting to plead more
than one Bivens claim, since he has asserted multiple violations of his constitutional
rights. In any event, Mr. Embrey did not include individual federal government
actors as defendants in this case.

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not against individual federal officers.”) (citing 28 U.S.C. § 1491(a)) (emphasis
added); see also United States v. Sherwood, 312 U.S. 584, 588 (1941) ([I]t has been
uniformly held... that [the Court of Federal Claims’] jurisdiction is confined to
money judgments in suits brought for that relief against the United States.”) (citing
United States v. Alire, 73 U.S. (6 Wall.) 573 (1862)) (emphasis added); Gallo-
Rodriguez v. United States, 513 F. App’x 971, 973 (Fed. Cir. 2013) (quoting Brown).
Therefore, the Court cannot entertain Mr. Embrey’s Bivens claims.

Mister Embrey also cites three portions of the main body of the Constitution
in support of our jurisdiction, but none can advance his case. He makes bare
assertions, without any explanation, that Article III, Section 2 of the Constitution
provides this court with jurisdiction to hear his case. See Pl.’s Sur-reply at 2-3; Pi.’s
Resp. at 4; Compl. at 8. Presumably, plaintiff is invoking the first clause of that
section, concerning the extent of federal judicial power, and not the clauses
regarding Supreme Court jurisdiction or criminal trials by jury. The problem with
this argument is that our court was established by Congress under Article I of the
Constitution and is thus not one of the inferior courts exercising Jurisdiction under
Article III. See 28 U.S.C, § 171(a) (declaring this court “to be a court established
under article I of the Constitution of the United States”); Sharpe v. United States,
112 Fed. Cl. 468, 475 (2018) (citing Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir.
1994)); see also Freytag v. Comm’r, 501 U.S. 868, 888-90 (1991) (discussing Article I
judicial power). Although the case or controversy requirements of Article ITI apply
to our cases that are subject to review by the Federal Circuit, which is itself an
Article IIT court, see Technical Innovation, Inc. v. United States, 93 Fed. Cl. 276, 278
(2010), Article III is not, strictly speaking, the source of our jurisdiction. Congress,
acting under Article I, instead is the source of our jurisdiction, even though it
assigned us a portion of the judicial power recognized by Article III. See Jan’s
Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1805 (Fed. Cir. 2008). In any event, in
creating our jurisdiction, Congress limited the range of cases we can hear to those
involving money-mandating sources of law. Id. at 1306; 28 U.S.C. § 1491(a). Article
III, Section 2 does not contain any substantive right to money damages paid by the
federal government.

Additionally, plaintiff has designated the Supremacy and Oaths Clauses of
the Constitution as purported jurisdictional grants. Neither serves this function,
however. The Supremacy Clause states the truism that the Constitution and
federal laws constitute “the supreme Law of the Land,” and that “Judges in every
State” are bound to obey federal law. See U.S. CONST, art. VI, cl. 2. The plain text
of the clause does not mandate the payment of compensation. See Treviito v. United
States, 557 F. App’x 995, 998 (Fed. Cir. 2014); see also United States v. Connally,
716 F.2d 882, 887 (Fed. Cir. 1983) (en banc) (denying claims based on constitutional
provisions that “neither explicitly nor implicitly obligate the federal government to
pay damages.”), The Supremacy Clause cannot therefore provide the Court with

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jurisdiction. See, e.g., Norington v. United States, No. 16-1020C, 2016 WL 6879549,
at *1 (Fed. Cl. Nov. 22, 2016). The same analysis applies to the Oaths Clause,
which demands that several enumerated government officials swear an oath to
uphold the Constitution; it, too, does not obligate the federal government to pay
money damages. See U.S. Const. art. VI, cl. 3; Taylor v. United States, 139 Fed. Cl.
4, 8 (2018) (“An oath of office, however, is not a contract, and in any event, claims
arising from the alleged failure to abide by that oath sound in tort.”), aff'd, 747 F.
App’x 863 (Fed. Cir. 2019); Nie v. United States, 124 Fed. Cl. 334, 343-44 (2015)
(dismissing Oaths Clause claim); cf. Connolly, 716 F.2d at 887 (explaining that the
“literal terms” of a constitutional provision must require money damages to come
under our jurisdiction). Therefore, the Oaths Clause cannot support our
jurisdiction. See, e.g., Haddad v. United States, No. 15-1075C, 2016 WL 5660266, at
*4 (Fed. Cl. Sept. 30, 2016). In sum, the Court has not been empowered by
Congress to consider any constitutional issue in the complaint, as no constitutional
provision Mr. Embrey has identified can support our court’s jurisdiction.

Finally, the various statutes plaintiff cites do not establish our jurisdiction.
Section 1331 of title 28 confers “original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States” upon the federal district
courts. See 28 U.S.C. § 1331. It does not apply to our court, however, and so does
not provide the necessary jurisdiction to proceed. See Ali v. United States, No. 19-
586C, 2019 WL 3412318, at *4 (Fed. Cl. July 29, 2019); see also Ledford v. United
States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (explaining that the Court of Federal
Claims is not a “district court”). Plaintiff also cites section 1346(b) of title 28, the
Federal Tort Claims Act (FTCA), which states:

[T]he district courts... shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages... for injury
or loss of property... caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office of employment, under circumstances where the
United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred,

28 U.S.C. 13846(b)(1) (emphasis added). This statute similarly cannot serve as a
basis for our court’s jurisdiction for two reasons: our court cannot entertain actions
“sounding in tort,” nor is our court a district court. 28 U.S.C. § 1491(a)(1); Ledford,
297 F.3d at 1382; Khalil v. United States, 133 Fed. Cl. 390, 392 (2017).°

9 Although Mr. Embrey does not discuss it in his response or sur-reply, another
provision from the FTCA, 28 U.S.C. § 2679(a), is identified in the complaint as a
source of our jurisdiction. Compl. at 2. But as discussed above, our court does not

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Mister Embrey also invokes the All Writs Act, 28 U.S.C. § 1651, to establish
our jurisdiction. Although this Act applies to all courts---not simply district
courts---it does not apply unless the court at issue already possesses Jurisdiction
over a matter. See 28 U.S.C. § 1651(a) [AJ] courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.”) (emphasis added); see also
Bishay v. United States, No. 19-347C, 2019 WL 1149953, at *1 n.1 (Fed. Cl. Mar. 12,
2019); Sanders v. United States, No. 18-979C, 2018 WL 6190375, at *3 n.6 (Fed. Cl.
Nov. 28, 2018). Because our court does not otherwise have jurisdiction over this
case, 28 U.S.C. § 1651 is irrelevant.

Plaintiff indiscriminately (and conveniently) cites sections 1491 through 1509
of Title 28 in attempting to establish our jurisdiction over his case. Compl. at 2;
Pl.’s Resp. at 4. These are the statutes granting and withdrawing our court’s
jurisdiction over various matters, almost none of which can be implicated by the
allegations of Mr. Embrey. Plainly, sections 1500-02 and 1509 concern matters
that are not within our jurisdiction and cannot therefore be the basis for
entertaining plaintiff's claims. And it is clear that nearly all of the rest have
nothing to do with this case---namely, sections 1492 (congressional reference), 1494
(unsettled accounts), 1496 (disbursing officers), 1497 (oyster growers), 1498 (patent
and copyright), 1499 (iquidated contractors’ damages), 1503 (set-offs payable to the
government), 1505 (tribal claims), and 1507-08 (tax cases). See also Sanders, 2018
WL 6190375, at *3 (“Listing federal statutes is not enough to confer jurisdiction on
this court.”).

As discussed above, the Tucker Act, 28 U.S.C. § 1491(a), is the primary
waiver of sovereign immunity enabling matters to be brought within the
jurisdiction of our court, but “to invoke jurisdiction under the Tucker Act, a plaintiff
must identify a contractual relationship, constitutional provision, statute, or
regulation that provides a substantive right to money damages,” Khan v. United
States, 201 F.3d 1375, 1377 (Fed. Cir. 2000), which Mr. Embrey has failed to do.
See, e.g., United States v. White Mountain Apache Tribe, 587 U.S. 465, 472 (2007)
(explaining the need for a separate, substantive right to money damages in order to
invoke Tucker Act jurisdiction). Plaintiff alleges that the government's failure to
release him from prison on June 24, 2017, violated 18 U.S.C. § 4001(a), which states
“InJo citizen shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress”; and 18 U.S.C. § 3624(a), which requires that “[a]
prisoner shall be released by the Bureau of Prisons on the date of the expiration of
the prisoner’s term of imprisonment, less any time credited...” Compl. at 7; Pl’s

have jurisdiction over claims sounding in tort. Therefore, “this court does not have
jurisdiction over plaintiff’s claims pursuant to 28 U.S.C. § 2679.” Utley v. United
States, 144 Fed. Cl. 578, 578 (2019).

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Resp. at 1, 5. But subsection 4001(a) does not mandate the payment of money when
violated. See 18 U.S.C. § 4001(a); Sharpe v. United States, 112 Fed. Cl. 468, 476
(2018) (holding 18 U.S.C. § 4001(a) “is not money mandating”). Nor does subsection
3624(a), which contains no language even suggesting an entitlement to money
damages. See 18 U.S.C. § 8624(a).10

Besides the Tucker Act, the only other jurisdictional grant that remotely
relates to plaintiff’s case is 28 U.S.C. § 1495, which provides for damages for unjust
conviction and imprisonment. But as the government notes in its motion, our court
must strictly construe that statute. See Def.’s Mot. at 4 (citing Vincin v. United
States, 468 F.2d 930, 933 (Ct. Cl. 1972) and Brown v. United States, 42 Fed. Cl. 139,
141—42 (1998)). The statute cannot apply to Mr. Embrey’s case, as it requires the
allegation that a claimant was “unjustly convicted of an offense against the United
States,” 28 U.S.C. § 1495, which plaintiff has not pleaded, see Compl. at 3.
Moreover, a claim under this statute can only be based on a conviction that was
overturned by a court order or pardon issued because of the claimant’s actual
innocence, 28 U.S.C. § 2513(a)(1), which is obviously not this case,!!

For the reasons discussed above, the Court concludes that it lacks subject-
matter jurisdiction over the claims asserted by Mr. Embrey.

C. Plaintiff’s Motion to Transfer the Case

When a plaintiff has failed to state a claim that falls within the subject-
matter jurisdiction of this court, dismissal is the normal course. See RCFC 12(b)(1),
(h)(3); Martinez v. United States, 281 F.3d 1376, 13880 (Fed. Cir. 2002).
Nevertheless, Mr. Embrey’s filings and federal law counsel the Court to consider
transferring this case. See 28 U.S.C. § 1631 (‘Whenever a civil action is filed in a
court... and that court finds that there is a want of jurisdiction, the court shall, if
it is in the interest of justice, transfer such action... to any other such court ...in

10 The Federal Circuit, in a non-binding decision, treated a different subsection of
this statute, regarding the furnishing of prisoners with an amount of money upon
release, as money-mandating. Dorrough v. United States, 13 F. App’x 954, 955
(Fed. Cir. 2001) (per curiam). But see Carroll v. United States, 100 Ct. Cl. 486, 439—
40 (1944) (finding no entitlement to payments under an earlier version of the
statute). Plaintiff does not allege a violation of that particular provision, 18 U.S.C.
§ 3624(d)(2).

11 Although not itself a money-mandating basis for jurisdiction, the statute cited by
Mr. Embrey requiring credit for prior custody, 18 U.S.C. § 3585(b), see Compl. at 3,
7, can reduce the amount of damages due under the unjust conviction statute. See
Crooker v. United States, 828 F.3d 1857, 13862 (Fed. Cir. 2016).

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which [it]... could have been brought ....”) (emphasis added); see also Tex. Peanut
Farmers v. United States, 409 F.3d 1870, 1874-75 (Fed. Cir. 2005) (stating that the
Court of Federal Claims should consider whether transfer is appropriate once it
determines it lacks jurisdiction). This court may transfer a case to a district court if
a plaintiff can demonstrate three elements: “(1) the transferor court lacks
jurisdiction; (2) at the time the case was filed, it could have been brought in the
transferee court; and (3) such transfer is in the interest of justice.” Melds v. United
States, 141 Fed. Cl. 628, 632 (2019) (citing Sanders v. United States, 34 Fed. Cl. 75,
81-82 (1995)).

A transfer is not in the interest of justice when it is “far from clear that the
federal district court would be able to entertain the plaintiffs’ claims as a result of
the plaintiffs’ failure to first exhaust mandatory administrative remedies.” Ace
Prop. & Cas. Ins. Co. v. United States, 60 Fed. Cl. 175, 187 (2004). Moreover, “a
court should not transfer a case if the transfer would be futile.” Hletcher v. United
States, No. 10-203C, 2010 WL 2640337, at *2 (Fed. Cl. June 30, 2010) (citing
Husband v. United States, 90 Fed. Cl. 29, 35 (2009)). Thus, “[ijf [a] hmited review
reveals that the case is a sure loser in the potential transferee court, then the
transferor court should dismiss the case.” Joslyn v. United States, 420 F. App’x 974,
979 (Fed. Cir. 2011) (citing Phillips v. Setter, 173 F.3d 609, 611 (7th Cir. 1999)).

1. The FTCA Claims

Regarding plaintiffs FTCA claims, the first transfer element is satisfied,
because the Court lacks jurisdiction over tort claims. As for the second element,
however, the FTCA claims could not have been filed in any federal district court at
the time Mr. Embrey filed the complaint. Under the FTCA:

An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail.

28 U.S.C. § 2675(a) (emphasis added).

In a case that was initially brought by a prisoner pro se, the Supreme Court
has held that the presentment requirement of “[t]he FTCA bars claimants from
bringing suit in federal court until they have exhausted their administrative
remedies.” McNeil v. United States, 508 U.S. 106, 113 (1998). As the Federal

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Circuit has explained, in an unpublished decision, this clause “requires the claimant
to notify the agency of the claim and request money damages” prior to filing a
complaint, otherwise transfer of an FTCA claim to a district court is not warranted.
Mone v. United States, 766 F. App’x 979, 985 (Fed. Cir. 2019); see also Montano

Elec. Contractor v. United States, 114 Fed. Cl. 675, 681-82 (2014) (“[Plaintiff] has
not filed an administrative claim as required, and as a result, no district court could
exercise jurisdiction over his tort claims.”).12

Based on the allegations in the complaint and accompanying exhibits, it
appears that Mr. Embrey never submitted an administrative demand to the Bureau
of Prisons for money damages to compensate him for the allegedly-unlawful length
of his prison confinement.!3 Without allegations, much less support, of presentment
of his money damages claim, Mr. Embrey has not demonstrated that he exhausted
his administrative remedies with the BOP, and thus no court would have subject-
matter jurisdiction over his FTCA claims. See Mone, 766 F. App’x at 985.
Accordingly, the Court denies plaintiff's request that this claim be transferred to a
federal district court. See Jan’s Helicopter Serv., 525 F.3d at 1803-04 (“A case may
be transferred under section 1631 only to a court that has subject matter
jurisdiction.”); cf. Langan v. United States, 143 Fed. Cl. 416, 424 (2019) (declining to
transfer claim on jurisdictional grounds, under a law with a similar exhaustion
requirement)./4

12 Because the exhaustion requirement has been held to be a jurisdictional
prerequisite by the Supreme Court, this approach is taken by all federal courts,
including the regional courts of appeal for both district courts in which Mr. Embrey
might have filed his complaint. See Schaffer by Schaffer v. A.O. Smith Corp., 36
F.3d 1097 (6th Cir. 1994) (Table) (per curiam); Mader v. United States, 654 F.3d
794, 805 (8th Cir. 2011) (en banc).

13 Mister Embrey does allege that he “properly notified [t]he United States, by and
through its Director of Bureau of Prisons,” “other United States employees,” and the
“United States Attorney General,” of their alleged duty to release him from prison
after June 24, 2017 passed. Compl. at 4. Even accepting this allegation as true for
the purposes of the motion to dismiss, the Court determines this is insufficient to
establish presentment to the BOP of Mr. Embrey’s damages claim. At no point in
his papers has plaintiff alleged that he served the agency a demand for money
damages. See 28 C.F.R. § 14.2(a) (“[A] claim shall be deemed to have been
presented when a Federal agency receives from a claimant ... written notification
of an incident, accompanied by a claim for money damages in a sum certain... .”)
(emphasis added).

14 The Court also notes that Congress has specifically excluded from the FTCA
claims “arising out of... false imprisonment,” other than those against,

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2. The Bivens Claims

The Court also considers whether transfer of Mr. Embrey’s Bivens claims is
warranted. As stated above, the Court lacks subject-matter jurisdiction over Bivens
claims, thereby satisfying the first transfer factor. But just as a transferee court
would not possess jurisdiction over the FTCA claims, neither would it have
jurisdiction over the Bivens claims. Plaintiff seems to misunderstand the nature of
the Bivens remedy. In Bivens, the Supreme Court implied a cause of action for
damages against individual federal narcotics agents because no other remedy was
available to the plaintiff. Bivens, 403 U.S. at 397. Of note, Mr. Bivens could not
have sued the United States or its agencies, which retained sovereign immunity
from suit. Id. at 410 (Harlan, J., concurring). In the absence of a congressional
waiver of sovereign immunity, then, the Supreme Court fashioned a right of action
against federal officials in their individual capacities for money damages to
vindicate their constitutional rights. Id. (‘For people in Bivens’ shoes, it is damages
or nothing.”).

As the foregoing shows, under Bivens, plaintiff has sued the wrong party. By
coming to our court, Mr. Embrey has chosen to sue the United States, rather than
individual BOP officials who were responsible for his alleged 508-day prison
overstay.!5 But the United States, as the sovereign, remains immune from suit
unless it waives its sovereign immunity. Loeffler v. Frank, 486 U.S. 549, 554 (1988),
Bivens does not alter that calculus. Indeed, in naming the United States as the sole
defendant, Mr. Embrey’s Bivens claim suffers from a fatal jurisdictional defect, such
that no transferee court would possess jurisdiction over that claim. See Wolf v.
United States, 127 F. App’x 499, 501 (Fed. Cir. 2005) (affirming dismissal of Bivens
claims because “Bivens actions , .. cannot be maintained against the United
States.”) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994)); Bd. Mach.,
Inc. v. United States, 49 Fed. Cl. 325, 333 n.10 (2001); Stebbins v. United States, 554
F. App’x 14, 14 (D.C. Cir. 2014) (per curiam) (“To the extent appellant attempted to
raise his claims pursuant to Bivens... these claims fail because the United States
is not a proper Bivens defendant.”); Burford v. Runyon, 160 F.3d 1199, 1203 (8th

“investigative or law enforcement officers.” 28 U.S.C. § 2680(h). Thus, even had
Mr. Embrey exhausted his administrative remedies, transfer would likely be futile.

18 Mister Embrey did, however, make sporadic general references to Bureau of
Prisons employees. See Compl. at 4 (“[Plaintiff], on several occasions, properly
notified [t]he United States, by and through its Director of Bureau of Prisons, and
other United States employees... .”); Pl.’s Resp. at 5 (“Defendant through its prison
officers do [sic] not possess legal authority to extend the sentencing court’s sentence
of imprisonment... .”) (emphasis removed).

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Cir. 1998) (“It is well settled that a Bivens action cannot be prosecuted against the
United States and its agencies because of sovereign immunity.”); Wilson v. United
States, 35 F.3d 567 (6th Cir. 1994) (Table) (affirming dismissal of Bivens claim on
jurisdictional grounds because plaintiff “named the United States as the only
defendant and a Bivens action does not lie against the United States.”). Because no
court would have jurisdiction over Mr. Embrey’s Bivens claims asserted against the
United States, his request that these be transferred to another court is denied.

III. CONCLUSION

In sum, the Court lacks subject-matter jurisdiction over all claims presented
in the complaint, and transfer of those claims to a federal district court is not
warranted under the circumstances. Accordingly, defendant’s motion to dismiss the
case is GRANTED and My. Embrey’s motion in the alternative to transfer the case
is DENIED.!® The Clerk shall close the case.

be httze.

vie RJ. WOLSK
Ssemior Judge

IT IS SO ORDERED.

16 Mister Embrey’s application to proceed in forma pauperis is GRANTED, and he
is thus relieved from having to pay the filing fee.

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