Davis v. United States

In the United States Court of Federal Claims
No. 20-1071
(Filed: 20 May 2022)
NOT FOR PUBLICATION

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DONALD LEWIS DAVIS, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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Donald Lewis Davis, pro se, of Fairton, New Jersey.

Sonia W. Murphy, Trial Attorney, with whom were Lisa L. Donahue, Assistant Director,
Martin F. Hockey, Jr., Acting Director, Brian M. Boynton, Acting Assistant Attorney General,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, all of Washington,
D.C., for defendant.

OPINION AND ORDER

HOLTE, Judge.

Pro se plaintiff Donald Lewis Davis filed a complaint alleging illegal exaction and a
violation of due process against the United States Department of the Treasury. The government
moves to dismiss plaintiff’s claims for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Rules of the Court of Federal Claims. For the following reasons, the Court:
(1) grants in part and denies in part the government’s motion to dismiss; and (2) denies as moot
plaintiff’s motion for leave to obtain a copy of cases to respond to the Court’s order of
supplemental briefing.

I. Background

A. Factual History

The Court draws the following facts from plaintiff’s filings, “accept[ing] all well-pleaded
factual allegations as true and draw[ing] all reasonable inferences in [the nonmovant’s] favor.”
Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000); see also Hamlet v. United States,
873 F.2d 1414, 1416 (Fed. Cir. 1989) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (“In
passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject
matter or for failure to state a cause of action, unchallenged allegations of the complaint should
be construed favorably to the pleader.”).

Plaintiff is an inmate of a federal correctional institution in Fairton, New Jersey. See Pet.
Under 28 U.S.C. § 1491 for the Refund of Money Erroneously Received (“Compl.”) at 2, ECF
No. 1; Appl. to Proceed In Forma Pauperis (“Pl.’s IFP Appl.”), ECF No. 8; Am. Compl. (RCFC
15(a)(1)(B)) (“Am. Compl.”) at 7, ECF No. 10. On 21 December 2019 and 20 January 2020,
plaintiff requested the United States Bureau of Prisons (“USBOP”) withdraw $400.00 “from
[his] Prisoner Trust Fund Account, to be sent to” Sheliqua Fuller. Am. Compl. at 8. After
neither “United States Treasury check for . . . $400.00 . . . reached the aforesaid destination[,]”
plaintiff asked “the USBOP to cancel” both checks. Id. at 8–9. Following plaintiff’s
cancellation request, both $400.00 disbursements were “returned to [plaintiff’s] Prisoner Trust
Fund Account on [10 June 2020].” Id. at 9.

On 16 June 2020 and 23 June 2020, plaintiff “again requested the USBOP to withdraw
$400.00 from [his] Prisoner Trust Fund Account, to be sent to Sheliqua Fuller at a different
address.” Id. “Of the two $400.00 requests that w[ere] withdrawn from [his] Prisoner Trust
Fund Account,” plaintiff states “only one . . . check for $400.00 [was] received by Sheliqua
Fuller.” Id. at 12 n.3. Plaintiff contends he “was notified that Sheliqua Fuller received a United
States Treasury check for $400.00 . . . , but when she cashed it, the United States Treasury
viewed it as a payment over one of the [21 December 2019 and 20 January 2020] cancell[ed
checks].” Id. at 9–10 (footnote omitted). Plaintiff contends the “payment over one of the [21
December 2019 and 20 January 2020] cancellations” resulted in an additional “$400.00 [being]
illegally withdrawn [on 28 July 2020] from [his] Prisoner Trust Fund Account into the pockets of
the United States Treasury”—constituting an “illegal exaction.” Am. Compl. at 10. When
plaintiff “presented this error to the prison officials[,] . . . they said that Sheliqua Fuller cashed
one of the . . . checks that” plaintiff cancelled, “without providing [p]laintiff Davis any proof.”
Id. As remedy, plaintiff seeks “to have the United States Treasury notify the USBOP of its said
error, and to have the $400.00 that was illegally withdrawn from [his] Prisoner Trust Fund
Account . . . returned to [his] Prisoner Trust Fund Account.” Id.

B. Procedural History

Plaintiff filed his initial request for relief on 17 August 2020, and on the same day, he
filed a motion for leave to file all papers in written print. See Compl.; Mot. for Leave to File All
Papers in This Action in Written Print, ECF No. 2. Plaintiff later filed an application to proceed
In Forma Pauperis and a form for prisoner authorization of payment of filing fees. See Pl.’s IFP
Appl. The government then filed its initial motion to dismiss. See Def.’s Mot. to Dismiss, ECF
No. 9. On 10 November 2020, plaintiff filed an amended complaint, to which the government
responded by filing its most recent motion to dismiss on 8 December 2020. See Am. Compl.;
Def.’s Mot. to Dismiss Pl.’s Am. Compl. (“Def.’s MTD”), ECF No. 13. Plaintiff then responded
to the government’s motion to dismiss and the government replied in support of its position. See
Pl.’s Reply to Def.’s 12-8-20 Mot. to Dismiss (“Pl.’s MTD Resp.”), ECF No. 15; Def.’s Reply in
Supp. of its Mot. to Dismiss Pl.’s Am. Compl. (“Def.’s MTD Reply”), ECF No. 16.

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 On 16 June 2021, the Court issued an Order: (1) ordering supplemental briefing; (2)
denying as moot the government’s first motion to dismiss; and (3) staying the government’s
second motion to dismiss until the conclusion of supplemental briefing. See Order, ECF No. 17.
Plaintiff responded by filing a motion for leave to obtain a copy of cases to address the Court’s
order of supplemental briefing, and the government responded to plaintiff’s request by providing
copies of the cases. See Pl. Davis’ Mot. for Leave to Obtain a Copy of the Cases that this Court
Ordered Him to Address (“Pl.’s Mot. for Cases”), ECF No. 18; Def.’s Resp. to Pl.’s Mot. for
Leave to Obtain a Copy of the Cases that the Court Ordered Him to Address (“Def.’s Resp.
Supplying Cases”), ECF No. 19. 1 The government filed its supplemental brief on 21 July 2021,
and plaintiff responded on 31 August 2021. See Def.’s Suppl. Briefing Pursuant to the Court’s
Order of June 16, 2021 (ECF No. 17) (“Def.’s Suppl. Br.”), ECF No. 22; Pl.’s Suppl. Resp. Br.,
ECF No. 27. The government replied to plaintiff’s response on 29 September 2021. See Def.’s
Reply to Pl.’s Suppl. Resp. Br., ECF No. 28.

II. Parties’ Arguments on the Government’s Motion to Dismiss

A. The Government’s Arguments

The government moves to dismiss plaintiff’s amended complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims
(“RCFC”). See Def.’s MTD. The government argues the Court lacks subject matter jurisdiction
because plaintiff’s “claim seeking notification of the USBOP’s alleged ‘mistake’ and a return of
the four hundred dollars to his commissary [sic] account does not fall within the Court’s limited
Tucker Act jurisdiction.” Id. at 2. “In order to assert a valid illegal exaction claim,” the
government asserts, “a plaintiff must show: (1) money was taken by the government; and (2) the
exaction violated a provision of the Constitution, a statute, or a regulation.” Id. at 3 (citing Piszel
v. United States, 121 Fed. Cl. 793, 799 (2015), aff’d, 833 F.3d 1366 (Fed. Cir. 2016)). To fulfill
subject matter jurisdiction, the government contends: “[A] claimant must demonstrate that the
statute or provision causing the exaction itself provides, either expressly or by necessary
implication, that the remedy for its violation entails a return of money unlawfully exacted.” Id.
(quoting Wagstaff v. United States, 105 Fed. Cl. 99, 111 (2012)).

In its motion to dismiss, the government notes: “[Plaintiff] identifies 31 U.S.C. § 1321 as
providing the basis for this Court’s jurisdiction over his claim.” Id. (citing Am. Compl. at 3).
The government argues, “this [c]ourt has previously determined [in Spengler v. United States]
that 31 U.S.C. §§ [sic] 1321 is not a ‘money-mandating source of law’ sufficient to invoke the
[c]ourt’s jurisdiction, and it should find the same here.” Id. (citing Spengler v. United States,
127 Fed. Cl. 597, 603 (2016), aff’d, 688 F. App’x 917 (Fed. Cir. 2017)). The government further

1
In its 16 June 2021 Order, the Court ordered “supplemental briefing addressing the application of the following:
(1) Salter v. United States, No. 10-318C, 2011 WL 6890645 (Fed. Cl. Dec. 29, 2011); (2) Salter v. United States
[(“Salter II”)], 119 Fed. Cl. 359 (2014); and (3) Fiduciary Obligations Regarding Bureau of Prisons Commissary
Fund, 19 Op. O.L.C. 127 (1995).” Order at 4. Plaintiff subsequently filed a motion “seeking to obtain a copy of”
the supplemental briefing cases, because “[he could not] access [the cases] on the Electronic Law Library available
to the prison population.” Pl.’s Mot. for Cases at 2. The government “d[id] not object to plaintiff’s request,
and . . . attached the cases requested by Mr. Davis to [its] response.” Def.’s Resp. Supplying Cases at 1. As the
government supplied plaintiff with copies of the cases, the Court denies as moot plaintiff’s motion for leave to
obtain a copy of the cases.

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asserts: “though the Commissary and Prisoner Trust Funds are ‘classified as a “trust” under 31
U.S.C. § 1321(a), . . . such classification alone is not sufficient to establish that Congress
intended to impose specific fiduciary obligations on the United States that would subject it to a
claim for monetary damages for their breach.’” Def.’s MTD at 4–5 (citing Spengler, 127 Fed.
Cl. at 601).

Without citing any supporting case law, the government proclaims: “While the claims of
the plaintiff in Spengler related to the Commissary and Welfare Fund, and not to the Prisoner
Trust Fund like Mr. Davis’s claim, the [c]ourt’s holding is equally applicable here.” Def.’s MTD
Reply at 2. In its 16 June 2021 Order, the Court ordered supplemental briefing seeking a more
thorough review of the jurisdictional issue. See Order at 4. In its supplemental brief, the
government concedes, “the Court may interpret 31 U.S.C. § 1321(a)(21) as imposing a fiduciary
duty upon the United States.” Def.’s Suppl. Br. at 5. Although, the government argues, “even if
a fiduciary duty exists, ‘the Court must . . . determine whether [31 U.S.C. § 1321(a)(21)] can be
fairly interpreted as mandating compensation for damages sustained as a result of a breach of the
duties [31 U.S.C. § 1321(a)(21)] imposes.’” Id. (citing Spengler v. United States, 688 F. App’x
917, 921 (Fed. Cir. 2017)).

Additionally, the government argues dismissal for lack of subject matter jurisdiction is
proper because: (1) “this [c]ourt has held that ‘withdrawals from [a] plaintiff’s prison account
are regulated by statute and not by contract,’” id. at 6 (citing Dudley v. United States, 61 Fed. Cl.
685, 688 (2004)); and (2) “it is well-established that this Court does not process [sic] jurisdiction
over an alleged violation of rights under the Due Process Clause of the Fifth Amendment
because it is not money-mandating.” Def.’s MTD Reply at 3 (citing James v. Caldera, 159 F.3d
573, 581 (Fed. Cir. 1998)).

B. Plaintiff’s Arguments

Plaintiff argues this Court has subject matter jurisdiction because “this claim is founded
upon a regulation of the USBOP, USBOP Program Statement No. 4500.12, titled, Trust
Fund/Deposit Manual; a regulation of the United States Treasury, the United States Treasury
Financial Manual; 31 U.S.C. § 3702(c); and/or, an implied contract with the United States.”
Pl.’s MTD Resp. at 3 (quoting Am. Compl. at 2). “This is an illegal exaction claim[,]” plaintiff
asserts, where “the United States Treasury illegally demanded the withdrawal of $400.00 from
the Prisoner Trust Fund Account that the [USBOP] has created for his use.” Am. Compl. at 2.

Plaintiff contends, “[t]he very fact that Prisoner Trust Fund accounts are ‘trust funds,’
implies that any monies that are deposited into such accounts are to be held in trust by the
USBOP”; thus, “this illegal exaction claim could be considered alone as being founded upon an
‘implied contract with the United States.’” Id. at 4 (quoting 28 U.S.C. § 1491(a)(1)). In his
response to the government’s motion to dismiss, plaintiff notes Spengler is distinguishable and
the government’s reliance on it is misguided, because “[he] is not claiming to be a beneficiary of
the USBOP Commissary Fund,” but instead “is claiming that $400.00 of his personal money was
illegally exacted from his Prisoner Trust Fund Account.” Pl.’s MTD Resp. at 5. In plaintiff’s
supplemental brief, he further comments: “[T]he United States acknowledges that 31 U.S.C.
§ 1321(a)(21) imposes a fiduciary duty upon it, and that the said fiduciary duty is sufficient to

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support Tucker Act jurisdiction.” Pl.’s Suppl. Resp. Br. at 2. Relying on Judge Wolski’s
opinion in Salter and the government’s acknowledgement of a fiduciary duty in its supplemental
brief, plaintiff asserts: “31 U.S.C. § 1321(a)(21) imposes a fiduciary duty upon the United
States, [therefore,] this Court should . . . conclude that it has the subject-matter jurisdiction to
entertain [his] illegal exaction claim.” Id. at 4–5 (citing Salter, 2011 WL 6890645).

Plaintiff also states, “if this Court finds that none of the various sources [plaintiff]
identified . . . which his said illegal exaction claim is founded upon . . . gives this Court
jurisdiction, . . . then [plaintiff] asks this Court to consider . . . the validation of an illegal
exaction claim under the 5th Amendment.” Pl.’s MTD Resp. at 5–6. “An illegal exaction under
the Due Process Clause exists . . . if money has been ‘improperly exacted or retained’ by the
government[;] . . . . [t]hus, this Court should conclude that it has jurisdiction over this case.” Id.
(quoting Casa de Cambio Comdiv S.A., de C.V. v. United States (“Casa de Cambio”), 291 F.3d
1356, 1363 (Fed. Cir. 2002)).

III. Legal Standard of the Government’s Motion to Dismiss

In considering a motion to dismiss for lack of subject matter jurisdiction, “a judge must
accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551
U.S. 89, 94 (2007), “and draw all reasonable inferences in favor of the plaintiff,” Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995)). Plaintiff “bears the burden of establishing subject
matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citations omitted). “If the Court of Federal Claims
determines that it lacks subject matter jurisdiction, it must dismiss the claim.” Kissi v. United
States, 493 F. App’x 57, 58 (Fed. Cir. 2012) (per curiam) (citing RCFC 12(h)(3)).

“[T]he Court of Federal Claims, like all federal courts, is a court of limited jurisdiction.”
Terran ex rel. Terran v. Sec’y of Health & Hum. Servs., 195 F.3d 1302, 1309 (Fed. Cir. 1999).
Under the Tucker Act,

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an 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)(1) (2018). Pro se complaints are held to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (citation
omitted); however, this court has long recognized “the leniency afforded to a pro se litigant with
respect to mere formalities does not relieve the burden to meet jurisdictional requirements,”
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007) (citations omitted). A pro se plaintiff—
like any other plaintiff—“bears the burden of establishing the Court’s jurisdiction by a
preponderance of the evidence.” Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)).

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IV. Analysis

A. Jurisdiction Over Plaintiff’s Illegal Exaction Claim

An illegal exaction occurs “when ‘the plaintiff has paid money over to the [g]overnment,
directly or in effect, and seeks return of all or part of that sum’ that ‘was improperly paid,
exacted, or taken from the claimant in contravention of the Constitution, a statute, or a
regulation.’” Aerolineas Argentinas v. United States, 77 F.3d 1564, 1572–73 (Fed. Cir. 1996)
(quoting Eastport S. S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967)) (finding
plaintiffs could maintain an illegal exaction suit under the Tucker Act when the government
compelled airlines to shoulder costs which the government had a legal duty to bear); see also id.
at 1573 (quoting Clapp v. United States, 117 F. Supp. 576, 580 (Ct. Cl. 1954)) (“[A]n illegal
exaction has occurred when ‘the [g]overnment has the citizen’s money in its pocket.’”), cert.
denied, 348 U.S. 834. “The Tucker Act provides jurisdiction to recover an illegal exaction by
government officials when the exaction is based on an asserted statutory power.” Id. at 1573
(citing Eastport S. S. Corp., 372 F.2d at 1007–08) (citation omitted).

The Federal Circuit recently clarified: “Allegations of subject matter jurisdiction [in
illegal exaction claims], to suffice, must satisfy a relatively low standard—must exceed a
threshold that ‘has been equated with such concepts as “essentially fictitious,” “wholly
insubstantial,” “obviously frivolous,” and “obviously without merit.”’” Boeing Co. v. United
States, 968 F.3d 1371, 1383 (Fed. Cir. 2020) (quoting Shapiro v. McManus, 577 U.S. 39, 40
(2015)). “Thus, to establish Tucker Act jurisdiction for an illegal exaction claim, a party that has
paid money over to the government and seeks its return must make a non-frivolous allegation
that the government, in obtaining the money, has violated the Constitution, a statute, or a
regulation.” Id.; see Owens v. United States, No. 99-5021, 1999 U.S. App. LEXIS 18341, at *5
(Fed. Cir. Aug. 6, 1999) (quoting Aerolineas Argentinas, 77 F.3d at 1572) (“Tucker Act claims
may be made for recovery of monies that the government has required to be paid contrary to
law. . . .”). The Federal Circuit reaffirmed: “We have, since [Norman v. United States, 429 F.3d
1081 (Fed. Cir. 2005)], assumed jurisdiction over statutory illegal exaction claims with no regard
for whether the statutes were ‘money-mandating.’” 2 Boeing Co., 968 F.3d at 1384 (citations

2
In its supplemental brief, the government states: “The specific question before the Court is whether 31 U.S.C.
§ 1321(a)(21) is a money-mandating source of law sufficient to invoke the Court’s jurisdiction under the Tucker
Act.” Def.’s Suppl. Br. at 1 (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). The government
further asserts, “[r]esolution of this question turns on a two-[part] inquiry: (i) whether 31 U.S.C. § 1321(a)(21)
imposes a ‘fiduciary duty’ on the United States, and if so; (ii) whether the statute ‘mandat[es] compensation for
damages sustained as a result of a breach’ of the fiduciary duty the statute imposes.” Id. (citing Spengler, 688 F.
App’x at 921). As mentioned supra, the Federal Circuit clarified: “We have, since Norman, assumed jurisdiction
over statutory illegal exaction claims with no regard for whether the statutes were ‘money-mandating.’” Boeing Co.,
968 F.3d at 1384 (first citing Am. Airlines, Inc. v. United States, 551 F.3d 1294, 1296 (Fed. Cir. 2008); then citing
Lummi Tribe of the Lummi Rsrv., Washington v. United States, 870 F.3d 1313, 1317–19 (Fed. Cir. 2017); and then
citing Virgin Islands Port Auth. v. United States, 922 F.3d 1328, 1333–34 (Fed. Cir. 2019)). The government’s
reliance on superseded law is misplaced; therefore, the Court follows the recent Federal Circuit decision in Boeing
Co. In this court, Judge Solomson recently applied the Boeing Co. jurisdictional rule in Gulley. See Gulley v.
United States, 150 Fed. Cl. 405, 419 (2020) (citing Boeing Co., 968 F.3d at 1384) (“To resolve any remaining
ambiguity in the law, the Federal Circuit explained [in Boeing Co.] that ‘[w]e have, since Norman, assumed
jurisdiction over statutory illegal exaction claims with no regard for whether the statutes were ‘money-
mandating . . . .’”).

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omitted); see Gulley, 150 Fed. Cl. at 419–20 (applying the Federal Circuit’s clarification in
Boeing Co. and holding “[plaintiff] was not required to identify a money-mandating source of
law to support his putative illegal exaction claim”); Perry v. United States, 149 Fed. Cl. 1, 32
(2020) (finding “no basis to engraft money-mandating requirements onto illegal exaction
claims”), aff’d, No. 2020-2084, 2021 WL 2395075 (Fed. Cir. July 13, 2021). Thus, the Court’s
jurisdiction over allegations of illegal exaction requires nonfrivolous facts demonstrating: (1)
plaintiff paid money to the government, either directly or in effect; and (2) the sum was obtained
in contravention of the Constitution, a statute, or a regulation. Boeing Co., 968 F.3d at 1383;
Aerolineas Argentinas, 77 F.3d at 1572–73.

To satisfy the first element of the illegal exaction test, plaintiff “must make a non-
frivolous allegation,” Boeing Co., 968 F.3d at 1383, “[he] paid money over to the [g]overnment,
directly or in effect, and seeks return of all or part of that sum,” Aerolineas Argentinas, 77 F.3d
at 1572 (quoting Eastport S. S. Corp., 372 F.2d at 1007). Plaintiff’s transaction history in his
amended complaint shows $400.00 was withdrawn from his Prisoner Trust Fund Account on 16
June 2020 and $400.00 was withdrawn on 23 June 2020. Am. Compl. at 13. Of these two
withdrawals, plaintiff alleges “only one . . . check for $400.00 has been received by Sheliqua
Fuller.” Id. at 12 n.3. On 28 July 2020, another $400.00 was withdrawn from plaintiff’s
Prisoner Trust Fund Account. Id. at 13. Plaintiff alleges, “the United States Treasury illegally
[withdrew] $400.00 from [his] Prisoner Trust Fund Account [on 28 July 2020],” id. at 2, and he
seeks to have the $400.00 “returned to [his] Prisoner Trust Fund Account,” id. at 10.
“[A]ccept[ing] as true all of the factual allegations contained in the complaint,” Erickson, 551
U.S. at 94, plaintiff adequately shows he “paid money over to the [g]overnment, directly or in
effect, and seeks return of all or part of that sum,” Aerolineas Argentinas, 77 F.3d at 1572
(quoting Eastport S. S. Corp., 372 F.2d at 1007). See Boeing Co., 968 F.3d at 1383 (quoting
Shapiro, 577 U.S. at 40) (“Allegations of subject matter jurisdiction, to suffice, . . . must exceed
a threshold that ‘has been equated with such concepts as “essentially fictitious,” “wholly
insubstantial,” “obviously frivolous,” and “obviously without merit.”’”); Trusted Integration,
Inc., 659 F.3d at 1163 (citing Henke, 60 F.3d at 797) (“In determining jurisdiction, a court
must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all
reasonable inferences in favor of the plaintiff.”).

Under the second element of the illegal exaction test, the sum must be “improperly paid,
exacted, or taken from the claimant in contravention of the Constitution, a statute, or a
regulation.” Aerolineas Argentinas, 77 F.3d at 1573 (quoting Eastport S. S. Corp., 372 F.2d at
1007); see id. (citing Eastport S. S. Corp., 372 F.2d at 1007–08) (noting “the exaction [must be]
based on an asserted statutory power”). Plaintiff broadly asserts a host of statutes and
regulations which he contends solidify the government’s unlawful conduct. 3 See Am. Compl. at

3
Plaintiff asserts his “claim is founded upon a regulation of the USBOP, USBOP Program Statement No. 4500.12,
titled, Trust Fund/Deposit Manual; a regulation of the United States Treasury, the United States Treasury Financial
Manual; 31 U.S.C. § 3702(c); and/or, an implied contract with the United States.” Pl.’s MTD Resp. at 3 (quoting
Am. Compl. at 2). Quoting USBOP Program Statement No. 4500.12, plaintiff notes, “Congress designated the
‘funds of federal prisoners’ and ‘commissary funds’ as ‘trust funds’ (31 U.S.C. [§] 1321). Monies acc[ru]ing to
these funds were appropriated and disbursed in compliance with the terms of the trust.’” Am. Compl. at 3 (emphasis
omitted) (citation omitted). Plaintiff further argues “31 U.S.C. § 1321(a)(21) imposes a fiduciary duty upon the
United States.” Pl.’s Suppl. Resp. Br. at 5. For the sake of clarity, the Court focuses its analysis on plaintiff’s
argument section 1321(a)(21) mandates some fiduciary duty; the Court does not discuss the extent of this duty.

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2–7; Pl.’s MTD Resp. at 3–6. In response, the government claims “[plaintiff] identifies 31
U.S.C. § 1321 as providing the basis for the Court’s jurisdiction over his claim.” Def.’s MTD at
3 (citing Am. Compl. at 3).

Section 1321(a) classifies ninety-one different government plans “as trust funds.”
31 U.S.C. § 1321(a) (2018). Subsection (a)(21) covers “Funds of Federal prisoners,” and
subsection (a)(22) covers “Commissary funds, Federal prisons.” Id. §§ 1321(a)(21)–(22).
“Amounts . . . received by the United States Government as trustee shall be deposited in an
appropriate trust fund account in the Treasury. . . . [A]mounts accruing to these funds are
appropriated to be disbursed in compliance with the terms of the trust.” Id. § 1321(b)(1). Both
parties offer extensive background undergirding the creation of Prisoner Trust Funds and
Commissary Trust Funds—highlighting the differences between the two funds. See Def.’s MTD
at 4 (citing Spengler, 127 Fed. Cl. at 601) (“The Commissary and Welfare Fund consists of
revenues generated by the sale of goods at prison commissaries. . . . The Prisoners Trust Fund,
on the other hand, consists of personal monies prisoners earn working in the prison and money
that is sent to them . . . while they are incarcerated.”); Am. Compl. at 2–4; see also 19 Op.
O.L.C. at 128–29 (internal citations omitted) (“[T]he [Department of Justice] established the
Commissary Fund in order to finance the purchase of the articles to be sold in the commissaries,
pay the salaries of commissary employees, and retain certain commissary system profits. . . .
New rules, promulgated in 1932 . . . . continued to deny inmates any entitlement to commissary
earnings.”).

In its motion to dismiss, the government cites Spengler to argue, “though the
Commissary and Prisoner Trust Funds are ‘classified as a “trust” under 31 U.S.C.
§ 1321(a), . . . it is well established that such classification alone is not sufficient to establish that
Congress intended to impose specific fiduciary obligations on the United States.’” Def.’s MTD
at 4–5 (citing Spengler, 127 Fed. Cl. at 601). Without any additional support, the government
asserts, “[w]hile the claims of the plaintiff in Spengler related to the Commissary and Welfare
Fund, and not to the Prisoner Trust Fund like Mr. Davis’s claim, the [c]ourt’s holding is equally
applicable here,” because “[b]oth . . . are classified as trust funds pursuant to 31 U.S.C.
§[§] 1321(a)(21)[–](22).” 4 Def.’s MTD Reply at 2. As plaintiff notes, “[t]he claims of Spengler
are entirely different from [his] illegal exaction claim. [He] is not claiming to be a beneficiary of
the USBOP Commissary Fund . . . . [He] is claiming . . . [his] money was illegally exacted from
his Prisoner Trust Fund Account.” Pl.’s MTD Resp. at 5.

4
As the Court noted in its 16 June 2021 Order:

The court in Spengler agreed with the court in Salter that Prisoners Trust Fund accounts are distinct
from Commissary Fund accounts: “As contrasted with the monies held in the Prisoner’s Trust Fund,
the monies in the Commissary Fund do not in any sense belong to the prisoners; in fact, Circular
No. 2244 expressly denies inmates any entitlement to the earnings of the Commissary.”

Order at 3 (quoting Spengler, 127 Fed. Cl. at 602). Thus, although the government looks to Spengler for support,
the court in Spengler acknowledges key differences between Prisoner Trust Funds and Commissary Trust Funds.
See Spengler, 127 Fed. Cl. at 601 (internal citations omitted) (“The Commissary and Welfare Fund consists of
revenues generated by the sale of goods at prison commissaries. The Prisoners Trust Fund, on the other hand,
consists of personal monies prisoners earn working in the prison and money that is sent to them . . . while they are
incarcerated.”).

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 In Salter, a similarly situated plaintiff argued “31 U.S.C. § 1321(a)(21) and Circular No.
2244 impose fiduciary obligations upon the [US]BOP concerning Prisoner Trust Fund accounts,”
and “the [USBOP] breached its fiduciary duty as trustee of his Prisoners Trust Fund account.”
Salter, 2011 WL 6890645, at *1 (citation omitted). In denying the government’s motion to
dismiss, Judge Wolski held: “31 U.S.C. § 1321 and Circular No. 2244 impose fiduciary
obligations upon the [US]BOP concerning Prisoners Trust Fund accounts, sufficient to support
jurisdiction over the matter.” 5 Id. at *2. In the Office of Legal Counsel (“OLC”) Opinion the
government cites for support, OLC states:

Although we have established that 31 U.S.C. § 1321 and the rules set forth in
Circular No. 2244 pertaining to the Commissary Fund do not impose fiduciary
obligations on the [US]BOP with respect to the Commissary Fund, we believe that
31 U.S.C. § 1321 and the rules set forth in Circular No. 2244 pertaining to the
Prisoners’ Trust Fund do impose fiduciary obligations on the [US]BOP with
respect to moneys contained in inmates’ Prisoners’ Trust Fund accounts.

19 Op. O.L.C. at 137–38 (emphasis added). 6 In “acknowledg[ing] OLC’s view that 31 U.S.C.
§ 1321(a)(21) does impose a fiduciary duty upon the United States,” Def.’s Suppl. Br. at 4 (citing
19 Op. O.L.C. at 139), the government concedes: “[T]he Court may interpret 31 U.S.C.
§ 1321(a)(21) as imposing a fiduciary duty upon the United States,” id. at 5. For these reasons,
the Court finds “31 U.S.C. § 1321 and Circular No. 2244 impose fiduciary obligations upon the
[US]BOP concerning Prisoners Trust Fund accounts, sufficient to support jurisdiction.” Salter,
2011 WL 6890645, at *2; 19 Op. O.L.C. at 137–39. Therefore, having established both
plaintiff’s withdrawn sum from his Prisoner Trust Fund account, and the government’s fiduciary

5
In discussing Salter, the government notes in its supplemental brief: “After surviving the [RCFC 12(b)(1)]
jurisdictional hurdle, Mr. Salter’s case proceeded to summary judgment, where it was dismissed.” Def.’s Suppl. Br.
at 3 (citing Salter II, 119 Fed. Cl. 359); compare Salter, 2011 WL 6890645, at *1–2 (denying the government’s
motion to dismiss without discussing the particular fiduciary relationship), with Salter II, 119 Fed. Cl. at 361, 364
(reiterating the government owed plaintiff fiduciary duties in administering his prisoner trust fund account, and
granting the government’s motion for summary judgment after analyzing the facts and concluding “plaintiff has
failed to show conduct that would amount to coercion or duress” sufficient to “constitute a breach of the
government’s fiduciary duties as trustee of an inmate’s trust fund account”).
6
OLC discusses in depth the “distinctions between the [Prisoner Trust Fund and Commissary Trust Fund]”:

First, the moneys in inmates’ Prisoners’ Trust Fund accounts are truly personal funds. . . . [E]ach inmate’s
Prisoners’ Trust Fund account contains money he or she brought into prison, received from a person
outside the prison, or earned while in prison. Accordingly, Circular No. 2244 establishes an elaborate
accounting scheme to ensure that funds in inmates’ Prisoners’ Trust Fund accounts are properly
credited . . . and debited . . . . Second, unlike provisions of Circular No. 2244 pertaining to the
commissaries and Commissary Fund, provisions pertaining to the Prisoners’ Trust Fund require the
[US]BOP to act in the best interest of individual inmates in managing their Prisoners’ Trust Fund
accounts. . . . “[M]oney may be received and placed to the credit of the individual inmates in the
‘Prisoners’ Trust Fund,’ to be used for their benefit . . . .” Third, the [US]BOP has historically recognized
fiduciary obligations with respect to inmates’ Prisoners’ Trust Fund accounts, generally refusing “to allow
attachment or levy on the prisoners’ trust funds as inconsistent with the provisions of the trust.” . . . [OLC]
has stated that “[a] withdrawal of [Prisoners’ Trust Fund moneys] without the inmate’s consent . . . would
seem to constitute a breach of the terms of the trust.”

19 Op. O.L.C. at 138–39 (footnotes omitted) (internal citations omitted).

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obligations under 31 U.S.C. § 1321(a)(21), this Court is satisfied with subject matter jurisdiction
over plaintiff’s illegal exaction claim. Boeing Co., 968 F.3d at 1383; Aerolineas Argentinas, 77
F.3d at 1572–73; Salter, 2011 WL 6890645, at *2; 19 Op. O.L.C. at 137–39.

B. Jurisdiction Over Plaintiff’s Claim Under an Implied Contract Theory

Plaintiff contends his “claim is founded upon . . . an implied contract with the United
States.” Am. Compl. at 2. Citing the “history of the Prisoner Trust Fund Account . . . provided,”
id. at 2–3, in the USBOP Trust Fund/Deposit Manual, plaintiff asserts: “[His] illegal exaction
claim could be considered alone as being founded upon an ‘implied contract with the United
States.’” Id. at 4 (quoting 28 U.S.C. § 1491(a)(1)). In response, the government argues,
“nothing in the [US]BOP’s Trust Fund Manual provides for a remedy against the United States
for an erroneous withdrawal from an inmate’s Trust Fund account,” Def.’s Suppl. Br. at 6 (citing
Am. Compl. at 7–10), and “nothing in [31 U.S.C. § 1321(a)] provides for reimbursement for
withdrawal from an inmate’s Trust Fund account,” id. The government further asserts, “an
implied contract requires a ‘meeting of minds, which, although not embodied in an express
contract, is inferred, as a fact, from conduct of the parties showing, in the light of the
surrounding circumstances, their tacit understanding.’” Id. (quoting Hercules Inc. v. United
States, 516 U.S. 417, 424 (1996)). The government adds, “this Court has held that ‘withdrawals
from [a] plaintiff’s prison account are regulated by statute and not by contract.’” Id. (quoting
Dudley, 61 Fed. Cl. at 688).

The Tucker Act provides:

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an 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)(1). The Supreme Court has “repeatedly held that [Tucker Act] jurisdiction
extends only to contracts either express or implied in fact, and not to claims on contracts implied
in law.” Hercules Inc., 516 U.S. at 423 (citations omitted); see also Grady v. United States, 565
F. App’x 870, 871 (Fed. Cir. 2014) (citing United States v. Mitchell, 463 U.S. 206, 215 (1983))
(“The Tucker Act provides jurisdiction over implied-in-fact contract claims against the
government.”). “An agreement implied in fact is ‘founded upon a meeting of minds, which,
although not embodied in an express contract, is inferred, as a fact, from conduct of the parties
showing, in the light of the surrounding circumstances, their tacit understanding.’” Hercules
Inc., 516 U.S. at 424 (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597
(1923)).

“Plaintiff has the burden to prove the existence of an implied-in-fact contract.” Hanlin v.
United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (citing Pac. Gas & Elec. Co. v. United
States, 3 Cl. Ct. 329, 339 (1983), aff’d, 738 F.2d 452 (Fed. Cir. 1984)). Thus, for this Court to
possess jurisdiction based on an alleged agreement implied in fact, “a claimant must show
‘mutuality of intent to contract, offer and acceptance, and that the officer whose conduct is relied

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upon had actual authority to bind the government in contract.’” Ysasi v. Rivkind, 856 F.2d 1520,
1525 (Fed. Cir. 1988) (citing H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed.
Cir. 1984)). In his amended complaint, plaintiff argues the purpose and “history of the Prisoner
Trust Fund Account . . . provided” in the USBOP Trust Fund/Deposit Manual “shows . . . . [his]
illegal exaction claim could be considered alone as being founded upon an ‘implied contract with
the United States.’” Am. Compl. at 2–4.

Although pro se litigants are granted greater leeway than parties represented by counsel,
plaintiff fails to offer sufficient evidence “prov[ing] the existence of an implied-in-fact contract.”
Hanlin, 316 F.3d at 1328 (citing Pacific Gas & Elec. Co., 3 Cl. Ct. at 339); see Haines, 404 U.S.
at 520–21. The provisions in the USBOP Trust Fund/Deposit Manual quoted by plaintiff fail to
“show ‘mutuality of intent to contract, offer and acceptance, and that the officer whose conduct
is relied upon had actual authority to bind the government in contract.’” Ysasi, 856 F.2d at 1525
(citing H.F. Allen Orchards, 749 F.2d at 1575). Therefore, because plaintiff fails to properly
surmount the burden of proving an implied-in-fact contract, the Court does not possess subject
matter jurisdiction over his illegal exaction claim based on an implied contract theory. Hanlin,
316 F.3d at 1328; Ysasi, 856 F.2d at 1525; Hercules Inc., 516 U.S. at 423; Grady, 565 F. App’x
at 871.

C. Jurisdiction Over Plaintiff’s Due Process Claim

In the alternative, plaintiff “asks this Court to consider . . . the validation of [his] illegal
exaction claim under the 5th Amendment [of the] Constitution,” and he cites Casa de Cambio,
291 F.3d at 1363, for the proposition: “An illegal exaction under the Due Process Clause
exists . . . if money has been ‘improperly exacted or retained’ by the government.” Pl.’s MTD
Resp. at 6. Without responding to plaintiff’s asserted citation or distinguishing Casa de Cambio,
the government summarily responded: “[I]t is well-established that this Court does not process
[sic] jurisdiction over an alleged violation of rights under the Due Process Clause of the Fifth
Amendment because it is not money-mandating.” Def.’s MTD Reply at 3 (citing James, 159
F.3d at 581).

“The Tucker [A]ct . . . is itself only 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 Court of Federal Claims] whenever the substantive right
exists.” United States v. Testan, 424 U.S. 392, 398 (1976). Thus, alleged due process claims
typically do not supply the Court with jurisdiction because “the Due Process Clauses of the Fifth
and Fourteenth Amendments . . . . do not mandate payment of money by the government.”
LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). As plaintiff contends, however,
the Federal Circuit held in Casa de Cambio: “Our cases have established that there is no
jurisdiction under the Tucker Act over a Due Process claim unless it constitutes an illegal
exaction.” Casa de Cambio, 291 F.3d at 1363 (emphasis added) (first citing Murray v. United
States, 817 F.2d 1580, 1583 (Fed. Cir. 1987), cert. denied, 489 U.S. 1055 (1989); and then citing
Inupiat Cmty. of Arctic Slope v. United States, 680 F.2d 122, 132 (Ct. Cl. 1982)); see id. (citing
Testan, 424 U.S. at 401) (“An illegal exaction under the Due Process clause exists only if money
has been ‘improperly exacted or retained’ by the government.”); Norman, 429 F.3d at 1095
(quoting Aerolineas Argentinas, 77 F.3d at 1573) (“The Court of Federal Claims ordinarily lacks

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jurisdiction over due process claims under the Tucker Act . . . but has been held to have
jurisdiction over illegal exaction claims ‘when the exaction is based upon an asserted statutory
power.’”). “An illegal exaction involves a deprivation of property without due process of law, in
violation of the Due Process Clause of the Fifth Amendment to the Constitution.” Norman, 429
F.3d at 1095.

As the Court discusses supra Section IV.A., the Court is satisfied with subject matter
jurisdiction over plaintiff’s illegal exaction claim. Boeing Co., 968 F.3d at 1383; Aerolineas
Argentinas, 77 F.3d at 1572–73; Salter, 2011 WL 6890645, at *2; 19 Op. O.L.C. at 137–39.
Regarding plaintiff’s due process claim, the government only cites James, 159 F.3d 573, in
which plaintiff claimed, “in discharging him, the Army had wrongfully denied him a five-month
extension of his enlistment.” Id. at 575. Although the court in James stated, “it is well
established that the Court of Federal Claims lacks jurisdiction over [Due Process Clause]
claims,” id. at 573, James sought correction of his military service record, not an illegal exaction,
id. at 576. The government’s citation to James therefore is not decisive for this case, and the
government has not yet addressed Casa de Cambio or distinguished plaintiff’s illegal exaction
claim from illegal exaction claims rooted in the Due Process Clause. Casa de Cambio, 291 F.3d
at 1363. The Federal Circuit in Casa de Cambio affirmed the Court of Federal Claims’ decision
which, notably, did not deny plaintiff’s illegal exaction due process argument for lack of subject
matter jurisdiction, but rather, “for failure to state a claim because the government had not
required Casa to pay any money either to the government or to a third party.” Id. at 1358. As
the Court confirms jurisdiction over plaintiff’s illegal exaction claim, and the government
briefing fails to discuss Casa de Cambio, the Court need not decide the motion to dismiss
regarding plaintiff’s due process claims at this time.

V. Plaintiff’s Alternative Request for Transfer of Venue

In plaintiff’s amended complaint, he asserts: “if this Court finds that there is a want of
jurisdiction, then [he] respectfully prays that this Court transfer[] this action pursuant to 28
U.S.C. § 1631 to the proper court.” Am. Compl. at 7. The government responded in its motion
to dismiss, “this Court should not transfer Mr. Davis’ case to another court, . . . because Mr.
Davis has not exhausted his administrative remedies.” Def.’s MTD at 6. Further, the
government contends: “Mr. Davis’ failure to exhaust his administrative remedies would deprive
the district court of jurisdiction over his case, and therefore a transfer to district court pursuant to
28 U.S.C. § 1631 would be inappropriate.” Id. (citing Spengler, 127 Fed. Cl. at 605–06).

As the Court discusses supra Section IV.A., its jurisdiction over plaintiff’s illegal
exaction claim is properly satisfied. Therefore, transfer of venue pursuant to 28 U.S.C. § 1631 is
unnecessary, and plaintiff’s request for transfer is denied as moot.

VI. Conclusion

For the foregoing reasons, the Court: (1) GRANTS in PART and DENIES in PART
the government’s motion to dismiss; and (2) DENIES as MOOT plaintiff’s motion for leave to
obtain a copy of cases to respond to the Court’s order of supplemental briefing.

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IT IS SO ORDERED.

s/ Ryan T. Holte
RYAN T. HOLTE
Judge

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