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Filed: June 9, 2017
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NOT FOR PUBLICATION JUN - I 2017
U.S. COURT OF
FEDERAL CLAIMS
JEFFREY NATHAN SCHIRRIPA.
Pro se; RCFC (12)(b)(1); Subject-Matter
Plaintiff, Jurisdiction; RCFC 12(b)(6); Failure to
State a Claim; Pre-Award Bid Protest;
Unilateral Contract: Fifth Amendment
Takings; In Forma Pauperis.
THE UNITED STATES,
Defendant.
Jeffrey Nathan Schirripa,Kirnelon, NJ, plaintiffpro se.
Lauren S. Moore, Trial Attomey, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman,,./r., Director, Chad A. Readler, Acting Assistant Attomey General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judee
I. INTRODUCTION
Plaintiff, Jeffrey N. Schinipa, brings this action alleging pre-award bid protest, breach of
contract and takings claims against the united states, seeking to, among other things, enjoin the
govemment from enforcing the Controlled Substances Act in regards to cannabinoids and fiom
pursuing criminal charges against plaintiff . See generally Am. Compl. The govemment has
moved to dismiss this action for lack of subject-matter jurisdiction and for failue to state a claim
upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(bX6) of the Rules ofthe
united states court of Federal claims C'RCFC). see generally Def. Mot. In addition, plaintiff
has filed motions to proceed informa pauperls; for confidential altemative dispute resolution
proceedings; for a more definite statement; forjoinder ofparty; for a preliminary injunction;
pleading special matters; for leave to file a motion for judgment on the pleadings; for entry of
default; and for default judgment. For the reasons discussed below, the Court GRANTS the
?El,b 301,0 0tlEE q308 355h
government's motion to dismiss; GRANTS plaintiff s motion to proceed informa pauperis; and
DENIES as moot plaintiff s remaining motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Backgroundr
Plaintiffpro se, Jeffrey Schinipa, commenced this action on December 14,2016. See
generally Am. Compl. Plaintiff s amended complaint is difficult to follow. But, it appears that
plaintiffseeks certain monetary, declaratory and other injunctive reliefin connection with the
govemment's enforcement of the Controlled Substance Act, 2l U.S.C. $ 881(a), with respect to
cannabinoids. Id. at Prayer for Relief.
Specifically, plaintiff alleges that, on January 21,2015, he mailed a sample of
cannabinoids to the United States Department ofJustice and the United States District Court for
the District of New Jersey. Id. at3. Plaintiff also refers to U.S. Patent No. 6630507 inthe
amended complaint-a patent issued to Aidan Hampson, Julius Axelrod and Maurizio Grimaldi
penaining to the use of cannabinoids as antioxidants and neuroprotectants. Id. at2.
cannabinoids are found in the plant species cannabis sativa, or marijuana, which is a schedule
one controlled substance under the Controlled Substances Act. 21 U.S.C. g St2(c).
On February 18,2015, the goverffnent confirmed receipt of plaintiff s sample and the
Department of Justice informed plaintiff that mailing the sample could be construed as a
violation of21 U.S.c. g 8aa(a), which pertains to the possession ofa controlled substance,
andior 18 u.s.c. $ 1716, which prohibits knowingly mailing an item defined as nonmailable by
the statute. Am. compl. at 3. Plaintiff alleges that, by acknowledging the medicinal use of
cannabinoids in granting U.S. Patent No. 6630507 , the govemment's classification of
cannabinoids as a schedule one controlled substance is unconstitution al. Id. at2,4.
Plaintiff alleges in the amended complaint that he is bringing a pre-award bid protest
claim against the govemment, because "defendant failed to perform the obligatory duty of
' The facts recited herein are taken from the amended complaint ("Am. compl."); the govemment's
renewed motion to dismiss ("Def. Mot."); and plainti{Ps response thereto (,'pl. opp."). unl€ss otherwlse
stated herein, the facts are undisputed.
procuring (capturing) plaintiff s property as required by 50 U.S.C.A. g 212." Id. at 6.2 Plaintiff
also alleges that he has entered into a unilateral contract with the government, by sending his
sample ofcannabinoids to the government and the distdct court. Pl. Opp. at2. In addition,
plaintiff alleges that the govemment's potential enforcement ofthe Controlled Substances Act
with respect to the sample of cannabinoids that he sent to the govemment and the district court
constitutes a regulatory takings in violation of the Fifth Amendment of the United States
Constitution. Am. Compl. at 4.
B. Procedural History
On August 26,2016, plaintiff filed the complaint in this matter. See generally Compl.
On August 26,2016, plaintiff filed a motion for leave to proceed informa pauperis. See
generally Pl. Mot. to Proceed In Forma Pauperis.
On September 19,2016, plaintiff filed a motion for a confidential altemative dispute
resolution. see generally Pl. Mot. for confidential Altemative Disp. Resol. on october 3, 2016,
the govemment filed a response and opposition to plaintiff s motion for confidential altematrve
resolution. see generally Def. Resp. on october 13,2016,plaintiff filed a reply in support of
his motion for a confidential altemative dispute resolution. See generally pl. Reply.
On October 24,2016, the govemment filed a motion to dismiss plaintiff s complaint for
lack of subj ect-matter jurisdiction and failure to state a claim upon which reliefcan be granted,
pursuant to RCFC l2(bXl) and 12(b)(6). see generally Def. Initial Mot. on November 4,2016,
plaintiff filed a motion for a more definite statement. see generally pL Mot. for a More Definite
Statement. On November 8, 2016, the Court held plaintiff s motions for confidential altemative
'Title 50, United States Code, section 212 provides, in relevant part, that:
Whenever during any insurrection against the Government of the United States . . . , any
person, or his agent, aftomey, or employee, purchases or acquires, sells or gives, any
property ofwhatsoever kind or description, with intent to use or employ the same, or suffers
the same to be used or employed in aiding, abetting, or promoting such insu*ection or
.
resistance to the laws . . all such property shall be lawful subject of prize and capture
wherever found; and it shall be the duty of the president to cause the same to be seized.
confiscated, and condemned.
50 U.S.C.A. $ 212 (West 2017).
dispute resolution and for a more definite statement in abeyance, pending the resolution of
defendant's motion to dismiss. ,See Abeyance Order, November 8, 2016.
On December 14,2016, plaintiff filed an amended complaint. See generally Am. Compl.
On December 27, 2016, piaintiff filed an initial response and opposition to the govemment's
motion to dismiss. See generally PL Initial Resp. On January 17,2017 , plaintiff filed a motion
forjoinder ofparty. See generally Pl. Mot. for Joinder. On January 30,2017, plaintiff fileda
motion for a preliminary injunction. See generally Pl. Mot. for Prelim. Inj. On January 31,
2017, the Court held plaintiff s motions in abeyance pending resolution of the govemment's
motion to dismiss. See Abeyance Order, January 31,2017 .
On February 2,2017, the govemment filed a motion to dismiss plaintiff s amended
complaint and a response to plaintiff s motion for joinder. See generally Def. Mot. On March
13,2017, plaintiff filed a response and opposition to the government's renewed motion to
dismiss. See generally Pl. Opp. On March 27,2017, the govemment filed areply in support of
its renewed motion to dismiss the amended complaint. See generally Def. Reply.
On February 14,2017 , plaintiff filed a motion pleading special matlers. See generally pl.
Mot. Pleading Special Matters. On April 10,2017, plaintiff filed a prayer for leave to file a
motion for judgment on the pleadings. See generallyPL Mot. for Leave to File Mot. for
Judgment on the Pleadings. On May 5,2017, plaintiff filed a motion for entry of default. See
generally PL Mot. for Entry of Default. Also on May 5,2017, plaintiff filed a motion for default
judgment. See generally Pl. Mot. for Default Judgment.
The govemment's renewed motion to dismiss having been fully briefed, the Court
resolves this pending motion.
III, LEGALSTANDARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matterpro se, without the benefit ofcounsel. And so,
plaintiff is "not expected to frame issues with the precision of a common law pleadin g." Roche
v. U.S. Postal Serv,,828F.2d 1555, 1558(Fed.Cir. 1987). When determining whether a
complaint filed by a pro se plaintiff is sufficient to survive a motion to dismiss, this Court affords
more leeway under the rules topro se plaintiffs than to plaintiffs who are represented by counsel.
See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se complaints, "however
inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by
lawyers"); Matthews v. United States,750 F.3d 1320,1322 (Fed. Cir.2014). Bur, while rhe
court applies the pleading requirements leniently, there "'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 ."' Lengen v.
United States, 100 Fed. Cl. 317 , 328 (201 1) (citations omitted) (first set of brackets existing).
In addition, although "apro se plaintiffis held to a less stringent standard than that ofa
plaintiff represented by an attomey, . . . the pro se plaintiff, nevertheless, bears the burden of
establishingtheCourt'sjurisdictionbyapreponderanceoftheevidence...." Riles v. united
States,93 Fed. Cl. 163, 165 (2010) (citations omitted). Given rhis, the Court may excuse
ambiguities in the plaintilf s complaint, but the Court does not excuse the complaint's failures.
See Henke v. United Stotes,60 F.3d 795, 799 (Fed. Cir. 1995); see also Demes v. United States,
52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere
formalities does not relieve them ofjurisdictional requirements.") (citation omitted).
B. Jurisdiction And RCFC 12(bxl)
When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(bXl), 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 fayor. Ericl<.son v. Pardus,551U.S.89,94(2007);see also RCFC 12(b)(l). But,
plaintiff bears the burden ofestablishing subject-matter jurisdiction, and plaintiff must do so by a
preponderance ofthe evidence. Reynolds v. Army & Air Force Exch.\erv.,846F.2d746,749
(Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject-
matter, it must dismiss the claim." Matthews y. United Stdtes, 72 Fed. C\.274,2i8 (2006)
(citations omitted); see also RCFC l2(hX3).
In this regard, the United States Court ofFederal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute . . . .,' Kokkonen v.
Guardian Life Ins. Co. ofAm.,511 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:
[A]ny claim against the United States founded either upon the Constitution, or any
Act ofCongress or any regulation ofan executive department, or upon any express
or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.
28 U.S.C. $ 1491(aXl) (2011). The Tucker Act, however, is a 'Jurisdictional statute; it does not
create any substantive right enforceable against the ljnited States for money damages . . . . [T]he
Act merely confers jurisdiction upon lthe United States Court of Federal Claims] whenever the
substantive right exists." United States v. Testan,424U.5.392,398 (1976) (citation omitted).
And so, to pursue a claim against the United States under the Tucker Act, a plaintiff must
identify and plead a money-mandating constitutional provision, statute or regulation; an express
or implied contract with the United States; or an illegal exaction ofmoney by the United States.
Cabral v. United States,3lT F. App'x 979,981 (Fed. Cir. 2008) (citing Ftsher v. United States,
402 F .3d 1167 , 1172 (Fed. Cir. 2005)); Norman v. [Jnited States, 429 F .3d, 1081, 1095 (Fed. Cir.
2005). "[A] statute or regulation is money-mandating for jurisdictional purposes if it 'can fairly
be interpreted as mandating compensation for damages sustained as a result ofthe breach ofthe
duties [it] impose[s]."' Fisher,402 F.3d at 1173 (quoting (tnited States v. Mitchell,463 U.S.
206,217 (1983)) (brackets in original).
c. RcFc r2@x6)
When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted pursuant to RCFC 12(bX6), this Court must also assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant's
favor. see Ericlcon,55 1 u.s. at 94. In order to survive a motion to dismiss under RCFC
l2(bX6), a complaint must contain facts suflicient to "state a claim to reliefthat is plausible on
its face." Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (2007); see also Ashcrofi v. Iqbat,556
U.S. 662, 678 (2009). When the complaint fails to "state a claim to relief that is plausible on its
face," the court must dismiss the complaint. Iqbal,556 U.S. at 678 (citation omitted). on the
other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their
veracity," and determine whether it is plausible, based upon these facts, to find against the
defendant. Id. at 663-64,678-79 ("A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is tiable for the
misconduct alleged.").
D. Bid Protests
The Tucker Act grants this Court jurisdiction over bid protests brought by "an interested
party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract
or to a proposed award or the award ofa contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed procurement." 28 U.S.C. $ 1491(bX1). To have
standing to pursue a bid protest action, a protestor must be an "interested party." Id. And so, if
the Court determines that a protestor is not an interested party, the Court must dismiss the case.
Rex Servs. Corp. v. United States,448F,3d 1305, 1308 (Fed. Cir. 2006); see RCFC 12(b)(1).
The United States Court ofAppeals for the Federal Circuit has applied the Competition in
Contracting Act's ("CICA") definition of the term "interested party" in bid protest matters. lm.
Fed. ofGov. Employees, AFL-CIO v. United States,258 F.3d 1294, 1302 (Fed. Cir. 2001); see
a/so 31 U.S.C. g 3551 (2009); CGI Federal Inc. v. IlnitedStates,779F.3d1346,t34g (Fed. Cir.
2015). In this regard, GICA defines the term "interested party" to mean an "actual or prospective
bidder or offeror whose direct economic interest would be affected by the award of the contract
or by failure to award the contract." 3i u.s.c. $ 3551(2). The Federal circuit has held that,,,[a]
protest will, by its nature, dictate the necessary factors for a'direct economic interest."' .Sys.
App. &Techs., Inc.v. United States, 691 F.3d1374,1382(Fed. Cir.2012); Llteeks Marine, Inc.
v. United States,575 F.3d 1352, 136l-62 (Fed. Cir. 2009); see also Nat'l Air Cargo Grp., Inc. v.
united states, I 26 Fed. cl. 281 , 292 (20 I 6). To that end, the Federal circuit has also adopted
two tests to determine whether a protestor has a direct economic interest. In posraward bid
protests, a protestor must prove a substantial chance of winning the contract, to have a direct
economic interest that would be affected by the award ofthe contract. see orion Tech., Inc. v.
united states,704 F .3d 1344, 1348 (Fed. cir. 2013) (citing Rex servs. corp.,448 F.3d at 1307).
In pre-award bid protests, the protestor must show "a non-trivial competitive injury which can be
redressed byjudicial relief," to demonstrate a direct economic interest that would be affected by
the award of the contract. See llteel