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No. 16-1613
Fifed: March 9,2017 FILED
,t ,i *:t:* * * *!:f,l ,f + * * {. * * ** MAR - 9 2017
ANDRE EVERTON GRANT U.S. COURT OF
FEDERAL CLAIMS
Plaintiff,
v.
UNITED STATES,
Defendant.
* * {. {. * '* ti * '1. + * * * * * * {, ,* 'l'
Andre Everton Grant, pro se.
Peter A. Gwynee, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, for defendant. With him was Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and Glaudia Burke, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice.
OPINION
HORN. J.
FINDINGS OF FACT
On December 5, 2016 pro se plaintiff Andre Everton Grant filed a complaint in this
court titled'COMPLAINT FOR DAMAGES UNDER THE FEDERAL TORT CLAIMS ACT.'
Plaintiffs complaint alleges that the United States, acting through the United States
customs and lmmigrations service (uscls) and the United states lmmigration and
Customs Enforcement (lCE), acted negligently and violated his rights under the Fourth
Amendment to the United States Constitution when the United States government denied
his claim of "derivative citizenship" and attempted to deport him after he was imprisoned
in 2010. Plaintiff claims "$1 0,040,029' in damages, costs, and although appearing pro se,
requests attorney's fees.
Mr. Grant was born in Jamaica to Jamaican parents in 1985. On October 18'2010'
he was sentenced to 48 months imprisonment by the United States District Court for the
District of Maryland and, after ICE subsequently lodged an immigration detainer against
him, he was transferred to the Moshannon Valley Correctional Center (MVCC). Mr. Grant
?01q 1a00 0000 1013 h80'{
alleges that, immediately after he arrived at MVCC, he informed ICE that he was a United
States citizen. Mr. Grant alleges that, at the request of lCE, he filed an application for a
Certificate of Citizenship with USCIS, which was denied on June 13, 201 1. Mr. Grant,
however, alleges that he did not receive a copy of the denial letter from USCIS, as it was
returned to sender. According to Mr. Grant, after he eventually learned this through a
Freedom of Information Act request, he filed a new application with USCIS, arguing that
its negligence prevented him from receiving a denial letter and deprived him of his right
to appeal the denial of his previous application.
According to his complaint, ICE initiated removal proceedings against Mr. Grant in
May 2012 and on July 17, 2012, he had his first hearing before an immigration judge.
According to Mr. Grant, at this hearing the immigration judge stated that he believed Mr.
Grant may be a citizen and, at a subsequent hearing in October 2012, the immigration
judge instructed Mr. Grant's attorney to submit a brief explaining how Mr. Grant had
acquired his citizenship. On December 14,2012, ICE removed the immigration detainer
that had been placed on Mr. Grant. Mr. Grant then sought a transfer out of MVCC and to
a communig confinement center through the United States Bureau of Prisons
administrative appeals process, but this request was denied on the grounds that there
was still a chance that Mr. Grant could be deported. Mr. Grant alleges that while he was
in custody, on July 4,2013, his son died in Jamaica "with a sickness that would be
considered curable if he was in the United States." On December 6, 2013, ICE lodged a
new detainer on Mr. Grant, which it cancelled on December 12,2013.
According to plaintiff s complaint, on the day after the new detainer was cancelled,
December 13, 2013, Mr. Grant was released from MVCC. In February 2014, however,
ICE again initiated removal proceedings against Mr. Grant, which were postponed
pending his appeal of the denial of his application for a Certificate of Citizenship with
USCIS. ln an order dated March 25,2014, which plaintiff has attached as an exhibit to
his complaint, the USCIS Board of lmmigration Appeals ruled in favor of Mr. Grant,
concluding that he had acquired United States citizenship, effective February 27,200'1,
as a result of the passage of the Child Citizenship Act of 2000, Publ. L. No. 106-395, 114
Stat. 1631 (2000). Mr. Grant received his Certificate of Citizenship on April 16,2014, a
copy of which he also attaches to his complaint. Mr. Grant states that he filed a claim for
comoensation with USCIS on June 5.2014. but has heard no answer since.
Based on these circumstances, Mr. Grant alleges a number of causes of action
against USCIS and lCE. With regards to USCIS, Mr. Grant alleges that it acted negligently
when it denied his citizenship after, allegedly, failing to properly interpret relevant case
law and statutes, when it allegedly failed to pay for the postage on his June 13,2011
denial later. Mr. Grant also alleges that USCIS's actions resulted in the wrongful death of
his son in Jamaica. Finally, Mr. Grant alleges that USCIS's actions violated his "right to
liberty" under the Fourth Amendment to the United States Constitution and his "rights as
a United States Citizen to seek gainful employment and or [sic] go to school." With regards
to lCE, Mr. Grant alleges that it acted negligently in failing to "fully investigate all claims
of Citizenship" and that its "placing and cancelling of numerous immigration detainers" on
him constituted negligent infliction of emotional distress. Mr. Grant seeks $10,040,029.00
in damages, $10,000,000.00 for the emotional distress resulting from the alleged denial
of his rights and the death of his son and $40,029.00 for the costs of defending against
his deportation. Mr. Grant also requests that the court "take a look at the constitutionality
of the Board of lmmigration Appeals [BlA] policy as it pertains to precedence and Non-
precedent [sic] decisions, and issue an injunction for the BIA to make [his] case A [sic]
precedential decision." Finally, Mr. Grant seeks costs and, although filing pro se, also
seeks attorney's fees.
On February 2, 2017, defendant filed a motion to dismiss plaintiffs complaint for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United
States Court of Federal Claims (RCFC). In its motion, defendant argues that the court
lacks jurisdiction to hear plaintiffs' complaint because his allegations sound "exclusively"
in tort and that this court lacks jurisdiction to hear tort claims. Mr. Grant failed to file a
timely opposition to defendant's motion to dismiss. This failure, however, does not impact
the court's analysis because the result in the case is clear based on the established
jurisdictional principles applicable to this court, which dictate that the court is without
jurisdiction to hear the allegations raised by plaintiff.
DtscussroN
The court recognizes that plaintiff is proceeding pro se, without the assistance of
counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to
invoke review by a court, oro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'q denied, 405 U.S. 9a8 (972); see also Erickson v. Pardus, 551
U.S. 89, 9a Q007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429
U.S. 97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322(Fed.Cu.2014); Diamond v. United States, 115 Fed. C|.516, 524,affd,
603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1 909 (201 5). "However, "'[t]here is
no duty on the part of the trial court to create a claim which [the plaintiffl has not spelled
out in his [or her] pleading.""' Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scoqin v. United States, 33 Fed. Cl.285,293 (1995)
(quoting Clark v. Nat'l Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aft'd,443 F. App'x 542 (Fed. Cn.2011);
Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a pro se plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010)
(citing Huqhes v. Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359
(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[Wlhile 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)); Harris v. United
States, 113 Fed. Cl. 290, 252 (2013) ("Although plaintiffs pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
Cl. at 253)). Even given the rules which apply to pro se plaintiffs, plaintiffs complaint
currently before the court, although attempting to cite to a range of statutes and case law,
does not allege cause of action justiciable in this court.
Defendant, in a very summary, cut-and-paste motion has moved to dismiss
plaintiff's complaint pursuant to RCFC 12(bX1) for lack of subject matter jurisdiction.
Nonetheless, the defendant is correct about the failure of plaintiff to raise issues within
this court's jurisdiction. The Tucker Act, 28 U.S.C. S 1491 , grants jurisdiction to this court
as follows:
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) (2012). As interpreted bythe United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh's and reh'q en banc denied
(Fed. Cir.2007), cert. denied,552 U.S. 1142(2008); Palmerv. United States, 168 F.3d
1310,1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv., lnc. v.
United States, 521 F.3d'1338, 1343 (Fed. Cir.2008) ("[P]laintifi must. . . identify a
substantive source of law that creates the right to recovery of money damages against
the United States."); Golden v. United States, 118 Fed. C'.764,768 (2014).In Ontario
Power Generation. Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1 002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clappv. United States,127 Ct. C|.505, 117 F. Supp.576,580 (1954))... .
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.
1392,1 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario PowerGeneration. Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S.392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell, 463 U.S. at 217; Blueport Co.. LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts)."). "'lf the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint." (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters. lnc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteqration. Inc. v. United States.659 F.3d
1 1 59, 1 163 (Fed. Cir. 201 1 ).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiffls claim, independent of any
defense that may be interposed." Hollev v. United States ,124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'q
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McOaullev Inv. Grp., lnc. v. United States, 93 Fed. C|.710,
713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the pleader is entitled to relief." RCFC 8(aX1), (2) (2016): Fed. R. Civ. P. 8(a)(1), (2)
(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v.
Twomblv, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,
"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
support a claim." Bradlev v. Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir. 1998); see also
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cn.2007\ (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff s factual allegations must'raise
a right to relief above the speculative level' and cross 'the line from conceivable to
plausible."'Three S Consultino v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting
Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), atfd, 562 F. App'x 964 (Fed. Cir.), reh'q
denied (Fed. Cr. 2014). As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550
U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twomblv, 550 U.S. at 555)
Most of the causes of action alleged in Mr. Grant's complaint, if legally cognizable
at all, given the facts alleged, sound in tort, including negligence, negligent infliction of
emotional distress, and the wrongful death of his son in Jamaica. Indeed, Mr. Hood titled
his complaint'COMPLAINT FOR DAMAGES UNDER THE FEDEML TORT CLAIMS
ACT.' lt is clear that this court does not have jurisdiction to hear tort claims against the
United States. See 28 U.S.C. S 1a91(a)(1) ("The United States Court of Federal Claims
shall have jurisdiction . . . in cases not sounding in tort."); see also Keene Corp. v. United
States, 508 U.S. 200, 214 (1993) ("[T]ort cases are outside the jurisdiction of the Court of
Federal Claims today."); Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997) ("The
Court of Federal Claims is a court of limited jurisdiction. lt lacks jurisdiction over tort
actions against the United States."); Kant v. United States,123 Fed. Cl. 614, 616 (2015).
Indeed, the jurisdictional provision identified in plaintiffs complaint, the Federal Tort
Claims Act, 28 U.S.C. S 1346, makes tort claims against the United States the exclusive
purview of the United States District Courts. See 28 U.S.C. S 1346(bX1); see also Brown
v. United States,74 Fed. Cl. 546, 549 (2006) ("[T]he FTCA [Federal Tort Claims Act, 28
U.S.C. S 1 346(b)(1)l grants exclusive jurisdiction to the United States federal district
courts regarding tort claims against the United States Government.").
Plaintiff also alleges that the actions of USCIS violated his rights under the Fourth
Amendment to the United States Constitution. This court also has no jurisdiction over any
claim based on the Fourth Amendment. See LaChance v. United States, 15 Cl. CL 127,
130 (1988) ("[T]he fourth amendment does not mandate the payment of money by the
United States." (citing Shaw v. United States, 8 Cl. Ct. 796, 800 (1985))); Roberson v.
United States, 115 Fed. Cl.234,240 ("The Fourth Amendment is not money-mandating."
(citing Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997))), appeal dismissed,
556 F. App'x 966 (Fed. Cu.2014); Haka v. United States, 107 Fed. Cl. 111,113-14
(2012); Kam-Almaz v. United States, 96 Fed. Cl. 84, 89 (2011) ("[T]his Court does not
have jurisdiction to hear claims contesting the laMulness of a search and seizure because
due process and Fourth Amendment claims are reserved to the District Court." (citing
LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995))), aff'd, 682 F.3d 1364
(Fed. Cir. 2012).
Finally, plaintiff alleges that USCIS "violated [his] rights as a United States citizen
to seek gainful employment and or go to school." For this claim, plaintiff cites to insufficient
facts to support his allegation and to no regulation, statute, or constitutional provision that
can be interpreted as mandating he can claim the payment of money for an alleged
violation by the government of these alleged "rights." The court, thus, lacks jurisdiction to
hear defendant's claims based on these allegations.
The court notes that, along with his complaint, plaintiff has filed an Application to
Proceed ln Forma Pauperis. In order to provide access to this court to those who cannot
pay the filing fees mandated by RCFC 77 .1(c), 28 U.S.C. S 1915 (2012) permits a court
to allow a plaintiff to file a complaint without payment of fees or security, under specific
circumstances. Section 1915(a)(1) states that:
Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner[l] possesses [and] that the person is unable to pay
1A number of courts have reviewed the words of 28 U.S.C. 1915(a)(1), regarding in
S
forma pauperis applications by non-prisoner litigants in federal courts, and have
concluded that Congress did not intend for non-prisoners to be barred from being able to
proceed in forma pauperis in federal court. See,94=, Floyd v. United States Postal Serv.,
105 F.3d 274,275-76 (6th Cir.), reh'q denied (6th Cir. 1997); Schaqene v. United States,
37Fed. C|.661,663(1997),appeal dismissed,152F.3d 947(Fed.Cir. 1998); seealso
ln re Prison Litiqation Reform Act, 105 F.3d 1131 ,1134 (6th Cir. 1997) (discussing how
to administer in forma pauperis rights to a non-prisoner, thereby acknowledging the rights
of non-prisoners to applyfor in forma pauperis status); Leonard v. Lacv,88 F.3d 181,183
(2d Cir. 1996) (using "sic" following the word "prisoner" in 28 U.S.C. g 1915(a)(1)
seemingly to indicate that the use of that word was too narrow); Smith v. United States,
113 Fed. Cl.241 ,243(2013): Powell v. Hoover,956 F. Supp.564,566 (M.D. Pa. 1997)
(holding that a "fair reading of the entire section [28 U.S.C. S 191s(aX1)] is that it is not
limited to prisoner suits."). Moreover, 28 U.S.C. $ 1915(a)(1) refers to both "person" and
such fees or give security therefor. Such affidavit shall state the nature of
the action, defense or appeal and affiant's belief that the person is entitled
to reclress.
28 U.S.C. $ 1915(a)(1). Therefore, the statute at 28 U.S.C. $ 1915(a)(1) requires a person
to submit an affidavit with a statement of all the applicant's assets, and that the affidavit
state the nature of the action, defense or appeal and affiant's belief that the person is
entitled to redress. See id.
The standard in 28 U.S.C. S 1915(a)(1) for in forma pauperis eligibility is "unable
to pay such fees or give security therefor." Determination of what constitutes "unable to
pay" or unable to "give security therefor," and therefore, whether to allow a plaintiff to
proceed in forma pauperis is left to the discretion of the presiding judge, based on the
information submitted by the plaintiff or plaintiffs. See, e.q., Rowland v. Cal. Men's
Colony. Unit ll Men'sAdvisoryCouncil,506 U.S. 194,217-18 (1993); Roberson v. United
States, 115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App'x 966 (Fed. Cir. 2014);
Fuentes v. United States, 100 Fed. Cl. 85, 92 (201 1). This court and its predecessors
were established to make available a user friendly forum in which plaintiffs can submit
their legitimate claims against the sovereign, limited only by the legislative decision to
waive sovereign immunity as to the types of claims allowed. In fact, prominently posted
at the entrance to this courthouse are the words of Abraham Lincoln: "lt is as much the
duty of government to render prompt justice against itself, in favor of citizens, as it is to
administer the same, between private individuals."
Interpreting an earlier version of the in forma pauperis statute, the United States
Supreme Court offered the following guidance:
We cannot agree with the court below that one must be absolutely destitute
to enjoy the benefit of the statute. We think an affidavit is sufficient which
states that one cannot because of his poverty "pay or give security for the
costs . . . and still be able to orovide" himself and deoendents "with the
necessities of life." To say that no persons are entitled to the statute's
benefits until they have sworn to contribute to payment of costs, the last
dollar they have or can get, and thus make themselves and their
dependents wholly destitute, would be to construe the statute in a way that
would throw its beneficiaries into the category of public charges. The public
would not be profited if relieved of paying costs of a particular litigation only
to have imposed on it the expense of supporting the person thereby made
an object of public support. Nor does the result seem more desirable if the
effect of this statutory interpretation is to force a litigant to abandon what
"prisoner." The word "person" is used three times in the subsection, while the word
"prisoner" is used only once. This court, therefore, finds that the single use of the word
"prisoner" in the language of 28 U.S.C S 1915(aX1) was not intended to eliminate a non-
prisoner from proceeding in federal court in forma pauperis, provided that the civil litigant
can demonstrate appropriate need. Any other interpretation is inconsistent with the
statutory scheme of 28 U.S.C. S 1915.
may be a meritorious claim in order to spare himself complete destitution
We think a construction of the statute achieving such consequences is an
inadmissible one.
Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 33940 (1948) (omissions in
original).
In Fiebelkorn v. United States, for example, a Judge of the United States Court of
Federal Claims indicated that:
[T]he threshold for a motion to proceed in forma pauperis is not high: The
statute requires that the applicant be 'unable to pay such fees.' 28 U.S.C.
$ 1915(a)(1). To be 'unable to pay such fees' means that paying such fees
would constitute a serious hardship on the plaintiff, not that such payment
would render olaintiff destitute.
Fiebelkorn v. United States ,77 Fed. Cl. 59, 62 (2007); see also Fuentes v. United States,
100 Fed. Cl. at92; Havesv. United States,71 Fed. C|.366,369 (2006).
In his Application to Proceed ln Forma Pauperis, plaintiff states that he is presently
employed with a gross income of $42,000.00 a year and a net income of $31,000.00 a
year and that he financially supports a son and his mother. The court notes that plaintiffs
salary, although modest, is significantly above the established federal poverty line for a
family of either three or four, as defined by the United States Department of Health and
Human Services' Poverty Guidelines. See Annual Update of the HHS Poverty Guidelines,
82 Fed. Reg. 8831-03, 8832 (Jan. 31 , 2017) (listing the poverty line as $20,420.00 for a
family of three and $24,600.00 for a family of four). Review of prior decisions in this court
demonstrates that those granted in forma pauperis status generally have an income much
closerto the poverty line than plaintiffs. See, e.q., Fuentes v. United States, 100 Fed. Cl.
at 92 (finding that plaintiff's income of less than $24,000.00 was "not significantly above
poverty level" listed by federal guidelines as $14,7'10 for a family of two); Fiebelkorn v.
United States, 77 Fed. Cl. at 62 (finding that plaintiff's income was "only $823 above the
2007 Department of Health and Human Services Poverty Guidelines for three-person
families"). The court, thus, is skeptical that plaintiff is eligible to receive in forma pauperis
status. The court need not, however, make this determination because, as discusseo
above, the court has determined that it lacks jurisdiction to adjudicate the claims alleged
in plaintiffs complaint. Plaintiffls motion for leave to proceed in forma pauperis, therefore,
is denied as moot.
CONCLUSION
Because the court lacks jurisdiction to adjudicate any of the alleged causes of
action included in plaintiff's complaint. defendant's motion to dismiss is GRANTED.
o
Plaintiffs complaint is DISilISSED. Plaintiffs Application to Proceed ln Forma Pauoeris is
denied as If,OOT. The clerk shall enter JUDGIf,ENT consistent wlth this opinion.
IT IS SO ORDERED.
RIAN BLANK HO
Judge
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