In the United States Court of Federal Claims
No. 20-570
(Filed: March 22, 2021)
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DERRICK MICHAEL ALLEN, SR., *
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Plaintiff, * Rule 12(b)(1); Subject-Matter
* Jurisdiction; Pro Se; Housing
v. * Discrimination
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THE UNITED STATES, *
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Defendant. *
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Derrick Michael Allen, Sr., Durham, NC, pro se.
Joshua Ethan Kurland, U.S. Department of Justice, Washington, DC, counsel for Defendant.
ORDER AND OPINION
DIETZ, Judge.
On May 5, 2020, Derrick Michael Allen, Sr., a pro se plaintiff, filed a complaint alleging
housing discrimination based on denial of housing applications and seeking monetary
compensation for out-of-pocket expenses, economic loss, loss of housing opportunity, emotional
distress, and other damages pursuant to 42 U.S.C. § 3612(g)(3)(c). Compl. at 6, ECF No. 1.
Plaintiff also filed an Application to Proceed In Forma Pauperis on May 5, 2020, ECF No. 2,
and a Motion for Appointment of Counsel on May 18, 2020, ECF No. 7. On June 26, 2020,
Defendant filed a motion to dismiss the complaint for lack of subject-matter jurisdiction pursuant
to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims. Def.’s Mot. to
Dismiss [hereinafter Def.’s MTD], ECF No. 9. Plaintiff filed his Response to Defendant’s
Motion to Dismiss on June 26, 2020. Pl.’s Opposition Mot. to Dismiss [hereinafter Pl.’s Resp.],
ECF No. 10. Defendant filed its Reply on July 10, 2020. Def.’s Reply in Support of its Motion to
Dismiss [hereinafter Def.’s Reply], ECF No. 11.
For the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED, and
Plaintiff’s Application to Proceed In Forma Pauperis is GRANTED. Because the case is
dismissed, Plaintiff’s Motion for Appointment of Counsel is DENIED AS MOOT.
I. BACKGROUND
Mr. Allen claims he was denied housing because of an inaccurate sex offender record.
Compl. at 3. As a result of such denial, Mr. Allen submitted a housing discrimination complaint
to the United States Department of Housing and Urban Development (HUD), and he alleges that
HUD has not contacted him regarding his complaint. Id.; see also Compl., Attach 1. Mr. Allen
also claims he “was denied public housing with the Town of Chapel-Hill in North Carolina”
because of inaccurate information derived from the FBI Criminal Justice Information Services
Division.” Compl. at 4. Mr. Allen seeks “monetary compensation, for out of pocket expense(s),
economic loss, los[s] of housing opportunity, emotional distress, and other damages pursuant to
42 U.S.C. 3612(g)(3)(C).” Id. at 6.
The government argues in its Motion to Dismiss that “none of the claims raised by [Mr.
Allen] are within this Court’s power to decide.” Def.’s MTD at 1. Specifically, the government
asserts that Mr. Allen’s complaint focuses on claims of housing discrimination, deprivation of
Fifth and Fourteenth Amendment rights, and alleged violations of various civil rights statutes and
that such claims are not within this Court’s limited jurisdiction. Id. at 1-2. Further, to the extent
Mr. Allen’s claim is based on actions by the Town of Chapel Hill in North Carolina, such claim
is likewise outside the scope of this Court’s jurisdiction. Id. at 2.
In response, Mr. Allen asserts that this Court has jurisdiction under 28 U.S.C. § 1491(a)
“to adjudicate Plaintiff’s claim for infringements of plaintiff rights in the matter of [h]ousing
[d]iscrimination[.]” Pl.’s Resp. at 1, ECF No. 10. Mr. Allen appears to argue that, because HUD
is a federal agency, actions against it are within the purview of this Court. Id. at 2-3.
II. LEGAL STANDARDS
Rule 12(b)(1) governs dismissal of claims for lack of subject-matter jurisdiction. See
RCFC 12(b)(1); Martin v. United States, 99 Fed. Cl. 627, 631 (2011) (“The [C]ourt’s ‘general
power to adjudicate in specific areas of substantive law . . . is properly raised by a [Rule]
12(b)(1) motion.’”) (citing Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999)).
“Jurisdiction is a threshold matter that must be resolved before the Court can take action on the
merits.” Remote Diagnostics Techs. LLC v. United States, 133 Fed. Cl. 198, 202 (2017) (citing
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). In deciding a motion to dismiss
for lack of subject-matter jurisdiction, the Court accepts all factual allegations in the complaint
as true and construes those allegations in the light most favorable to the plaintiff. Estes Express
Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014).
Pleadings from pro se plaintiffs are held to more lenient standards than pleadings drafted
by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (stating it is settled law that the allegations of
such a complaint, “however inartfully pleaded” are held “to less stringent standards than formal
pleadings drafted by lawyers”); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, “[d]espite this permissive standard, a pro se plaintiff must still satisfy the court’s
jurisdictional requirements.” Trevino v. United States, 113 Fed. Cl. 204, 208 (2013), aff’d, 557 F.
App’x 995 (Fed. Cir. 2014) (citations omitted); see also Shelkofsky v. United States, 119 Fed. Cl.
133, 139 (2014) (“[W]hile the court may excuse ambiguities in a pro se plaintiff’s complaint, the
court ‘does not excuse [a complaint’s] failures.’”) (quoting Henke v. United States, 60 F.3d 795,
799 (Fed. Cir. 1995)); Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)
(“[A] court may not similarly take a liberal view of that jurisdictional requirement and set a
different rule for pro se litigants only.”). Plaintiffs, whether pro se or not, have the burden of
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establishing by a preponderance of evidence that this Court has jurisdiction over their claims.
Alston-Bullock v. United States, 122 Fed. Cl. 38, 40 (2015) (citing Taylor v. United States, 303
F.3d 1357, 1359 (Fed. Cir. 2002)).
The United States Court of Federal Claims has limited jurisdiction. See Massie v. United
States, 226 F.3d 1318, 1321 (Fed. Cir. 2000) (“[T]he Court of Federal Claims, like all inferior
federal courts, is a court of jurisdiction limited by what Congress allows.”). It is well settled that
this Court may hear a claim against the United States only if Congress has specifically and
unambiguously waived the government’s sovereign immunity for such a suit. United States v.
Testan, 424 U.S. 392, 397-98 (1976). Indeed, this Court’s jurisdiction is defined by the Tucker
Act, which waives the sovereign immunity of the United States for non-tort claims for damages
founded upon the Constitution, an Act of Congress, an executive department regulation, or an
express or implied contract with the United States. See 28 U.S.C. § 1491(a)(1). The Tucker Act
is a jurisdictional statute and “does not create any substantive right enforceable against the
United States for money damages.” Testan, 424 U.S. at 398. To recover against the government,
a plaintiff must identify a “substantive right created by some money-mandating constitutional
provision, statute or regulation that has been violated, or an express or implied contract with the
United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en
banc).
III. DISCUSSION
A. Defendant’s Motion to Dismiss
Mr. Allen, a pro se plaintiff, is entitled to a liberal construction of his pleadings. The
Court accordingly construes Mr. Allen’s complaint to assert three claims: (1) a housing
discrimination claim in which he argues that he was denied housing based on inaccurate
information and that HUD failed to address his housing discrimination complaint; (2) a claim
alleging the Town of Chapel Hill, North Carolina, denied him public housing because of
“inaccurate information derived from the FBI Criminal Justice Information Services Division[;]”
and (3) a due process claim. Compl. at 1-2. Because each of Mr. Allen’s claims fails to satisfy
jurisdictional requirements, the Court is unable to proceed to the merits, and his claims must be
dismissed.
1. Housing Discrimination Claim
Mr. Allen primarily alleges housing discrimination based on the denial of housing
applications. See Compl. at 3-4. He asserts that this Court has jurisdiction pursuant to the Tucker
Act and makes mention of 42 U.S.C. § 1982 (Civil Rights Act) and 42 U.S.C. § 3604 (Fair
Housing Act). See Compl. at 1. The government moves to dismiss Mr. Allen’s housing
discrimination claims as beyond the Court’s limited grant of jurisdiction. See Def.’s MTD at 1.
The government argues that claims arising under Section 1982 of the Civil Rights Act and the
Fair Housing Act must be brought in a United States district court. Id. at 2. In response, Mr.
Allen appears to argue that because HUD is a federal entity, its actions or—as Mr. Allen
argues—its inactions are within this Court’s jurisdiction. See Pl.’s Reply at 2-3. Mr. Allen further
renews his assertion that this Court has jurisdiction under the Tucker Act to adjudicate his
housing discrimination claims. See id. at 1-2. We disagree with Mr. Allen.
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This Court is not a federal district court, but rather a special federal court of limited
jurisdiction. See Humphrey v. United States, 52 Fed. Cl. 593, 598 (2002) (referencing Doko
Farms v. United States, 13 Cl. Ct. 48, 59 (1987)). 28 U.S.C. § 1343(a)(4) provides that United
States district courts “shall have original jurisdiction” over alleged civil rights violations. 28
U.S.C. § 1343(a)(4). It is well-established that United States district courts have exclusive
jurisdiction over such claims. Clarke v. United States, No. 10-283C, 2010 WL 2143675, at *2
(Fed. Cl. May 24, 2010), aff’d, No. 2010-5133, 2010 WL 4569961 (Fed. Cir. Nov. 5, 2010).
Similarly, the Fair Housing Act directs litigants to commence a civil action in a United States
district court. See 42 U.S.C. § 3613; Fennie v. United States, No. 12–272C, 2013 WL 151685, at
*1 (Fed. Cl. Jan. 4, 2013); see also Allen v. United States, No. 14-179C, 2014 WL 3767128, at
*3 (Fed. Cl. July 30, 2014) (stating this Court cannot exercise jurisdiction over Fair Housing Act
claims). As the government highlights, see Def.’s MTD at 2, claims arising under the Civil
Rights Act and Fair Housing Act should be brought in a United States district court, not the
Court of Federal Claims. See Bush v. United States, 627 F. App'x 928, 930 (Fed. Cir. 2016)
(noting that claims alleging violations of the Fair Housing Act are outside the scope of this
Court’s jurisdiction). The fact that Mr. Allen’s claims are against a federal agency does not alter
the reality that this Court lacks jurisdiction over his housing discrimination claims.
2. Claims Against Entities other than the United States
Mr. Allen alleges he was denied public housing by the Town of Chapel Hill, North
Carolina, because of inaccurate information “derived” from the Federal Bureau of Investigations
(FBI) Criminal Justice Information Services Division. Compl. at 4. The government moves to
dismiss these claims because this Court’s jurisdiction is limited to suits against the United States,
not states or private parties. Def.’s MTD at 2. We agree with the government.
This Court’s jurisdiction is confined to reviewing claims for money damages against the
United States itself, and a suit must be dismissed for lack of jurisdiction “if the relief sought is
against others than the United States.” United States v. Sherwood, 312 U.S. 584, 588 (1941)
(citations omitted). While the complaint names the United States as the defendant, Mr. Allen
directs certain allegations at the Town of Chapel Hill, North Carolina. See Compl. at 4. Since the
Town of Chapel Hill is neither a federal entity nor an agent of the federal government, the Court
lacks the requisite jurisdiction to hear Mr. Allen’s claims against it. 1 See Marshall v. United
States, 223 Ct. Cl. 650, 651 (1980).
3. Fifth and Fourteenth Amendment Violation Claims
Mr. Allen claims he “can demonstrate an [sic] los[s] of liberty which warrants attention
to . . . the [Fifth] and [Fourteenth] [A]mendment[.]” Compl. at 1. The government argues these
constitutional claims are beyond the jurisdiction of this Court because it “is well settled that the
Due Process Clauses of both the Fifth and Fourteenth Amendment . . . do not provide a cause of
1
Even assuming that Mr. Allen’s claim against the Town of Chapel Hill is a result of inaccurate information
obtained from the FBI, a federal agency, this Court still lacks jurisdiction over claims against the Town of Chapel
Hill, North Carolina. See Conerly v. United States, 137 Fed. Cl. 140, 142 (2018) (“Plaintiff's claim is against a
locality, over which this Court has no jurisdiction.”).
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action under the Tucker Act. See Def.’s MTD at 3 (citing Smith v. United States, 709 F.3d 1114,
1116 (Fed. Cir. 2013)). We agree with the Government.
In this Court, subject-matter jurisdiction is not established by simply alleging a
constitutional violation. Sykes v. United States, 105 Fed. Cl. 231, 234 (2012) (quotations
omitted). Rather, the constitutional provision alleged to have been violated must be money
mandating. Id. (citing Ferreiro v. United States, 501 F.3d 1349, 1351-52 (Fed. Cir. 2007)). This
Court has no jurisdiction over claims based upon the Due Process Clauses of the Fifth and
Fourteenth Amendments because these constitutional provisions “do not obligate the [f]ederal
[g]overnment to pay money damages.” Id. Accordingly, this Court lacks jurisdiction to hear Mr.
Allen’s claims based on the Fifth and Fourteenth Amendments.
B. Application to Proceed In Forma Pauperis
Mr. Allen filed an application to proceed in forma pauperis on May 5, 2020. See Mot. for
Leave to Proceed In Forma Pauperis [hereinafter IFP], ECF No. 2. Pursuant to 28 U.S.C. §
1915, federal courts are permitted to waive filing fees under certain circumstances. See 28 U.S.C.
§ 1915(a)(1). Under the statute, a plaintiff is eligible to proceed in forma pauperis if he or she is
“unable to pay such fees or give security therefor.” Moore v. United States, 93 Fed. Cl. 411, 413
(2010) (quoting 28 U.S.C. § 1915(a)(1)). “[T]he threshold for a motion to proceed in forma
pauperis is not high[.]” Id. at 414. “Unable to pay such fees” means that “paying such fees would
constitute a serious hardship on the plaintiff, not that such payment would render plaintiff
destitute.” Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (2007) (citing Adkins v. E.I. DuPont de
Nuemours & Co., 335 U.S. 331, 339 (1948)); see also Moore, 93 Fed. Cl. at 413 (stating the
determination of what constitutes “unable to pay” is left to the discretion of the presiding judge
based on the information submitted by the plaintiff). In his application, Mr. Allen states that he is
not currently employed, has a very small amount of money in his bank accounts, has various
recurring expenses (including school loans and child support), and has outstanding debts for
medical and dental bills. IFP at 1-2. The Court finds that Mr. Allen has sufficiently demonstrated
financial hardship if he is required to pay the Court’s filing fees. Accordingly, Mr. Allen’s
Motion for Leave to Proceed In Forma Pauperis is granted.
IV. CONCLUSION
For the reasons set forth in this opinion, Defendant’s Motion to Dismiss is GRANTED,
and Plaintiff’s Application to Proceed In Forma Pauperis is GRANTED. Plaintiff’s Motion for
Appointment of Counsel is DENIED AS MOOT. The Clerk of Court is DIRECTED to enter
judgment accordingly.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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Allen v. United States
Combined Opinion