Zhao v. United States

OPINION AND ORDER

In a complaint filed July 20, 2009, Qian Ibrahim Zhao, a detained foreign national, seeks compensatory and punitive damages stemming from an alleged encounter with an unknown individual who supposedly identified himself to Mr. Zhao as an agent of the Central Intelligence Agency (“CIA”). Compl. ¶¶ 8, 25-28. According to Mr. Zhao, the agent stopped him on a street in Washington, D.C., searched his person and belongings, detained and questioned him, and seized his personal property. Compl. ¶¶ 8-11. Mr. Zhao is currently being detained by officials of United States Immigration and Customs Enforcement at the Houston Contract Detention Facility. See Pl.’s Aff. appended to Pl.’s Mot. to Proceed In Forma Patuperis. The United States has moved to dismiss the complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) on the ground that this court lacks subject matter jurisdiction over Mr. Zhao’s claims. Def.’s Rule 12(b)(1) Mot. to Dismiss at 1 (“Def.’s Mot. to Dismiss”). Mr. Zhao has resisted this motion and included with his opposition requests to amend his complaint and to bifurcate proceedings. Pl.’s Opp’n to Def.’s Mot. to Dismiss [and] Pl.’s Mot. to Amend Original Complaint (“Pl.’s Opp’n”).1

BACKGROUND2

Mr. Zhao alleges that while making a movie in Washington, D.C. in 2004 he was stopped on the street by an unknown individual who identified himself to Mr. Zhao as a CIA agent. Compl. ¶ 8. Mr. Zhao avers that this person showed his badge but did not provide his name or contact information. Compl. ¶ 9. According to Mr. Zhao, the agent directed Mr. Zhao to put his hands up against a wall and proceeded forcibly to search his person and belongings. Compl. ¶¶ 8-9. Mr. Zhao alleges that he was then “falsely imprisoned” and questioned without his consent “for [a period of] more than four hours” before the agent seized his personal property including “a valid Chin[ese] passport, camcorder, camera, video tapes[,] note*98book[,] and all of the phone numbers saved in [his] cell phone.” Compl. ¶¶ 10-11. According to Mr. Zhao, the agent promised to return his property, and Mr. Zhao provided the agent a mailing address for this purpose. Compl. ¶ 12. Mr. Zhao avers that he submitted claims first to the CIA and then to the Department of Homeland Security in 2004 and 2009, respectively, and that only the CIA responded, denying his claim, but not in writing. Compl. ¶¶ 12, 14. Mr. Zhao asserts that sometime in 2008 his passport was passed by the CIA to the Department of Homeland Security, Immigration and Customs Enforcement, and is now in the possession of that agency at its office in Houston, Texas. Compl. ¶ 15. On March 1, 2009, Mr. Zhao submitted a written request to that office that his passport and other personal property be returned, Compl. Ex. 1, to which the responding official replied on March 18, 2009, that “[y]ou need to address [the matter] with the individuals [who] took your property.” Compl. Ex. 2. Mr. Zhao filed this action on July 20, 2009.

The complaint asserts several causes of action arising out of Mr. Zhao’s alleged encounter with a federal agent. See Compl. ¶¶ 17-22 (Causes of Action). Mr. Zhao seeks relief on constitutional grounds pursuant to the Fourth and Fourteenth Amendments for “unreasonable searches and seizures,” under the Fifth Amendment for violations of the Due Process and Equal Protection Clauses, and under the Ninth Amendment for violation of a right to privacy. Compl. ¶¶ 17, 22. Mr. Zhao also seeks to recover damages in tort for slander, defamation, invasion of privacy, and false imprisonment. Compl. ¶ 19.3

JURISDICTION

“Jurisdiction must be established as a threshold matter before the court may proceed with the merits of this or any other action.” OTI Am., Inc. v. United States, 68 Fed.Cl. 108, 113 (2005) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). As plaintiff, Mr. Zhao bears the burden of establishing that this court has jurisdiction to hear his claims. See McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

In determining whether subject matter jurisdiction exists over a particular claim, the court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. (See Henke v. United States, 60 F.3d 795, 797 (Fed.Cir. 1995)). However, the court is “ ‘not bound to accept as true a legal conclusion couched as a factual allegation,’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)), nor is it required to give credence to implausible allegations. See Ashcroft v. Iqbal, — U.S. —,—, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Although pleadings filed by pro se claimants such as Mr. Zhao are held to a less stringent standard of pleading than that applied to formal pleadings prepared by counsel, see Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), pro se claimants must nonetheless “affirmatively and distinctly” plead that the court has subject matter jurisdiction. Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925). If the court finds that it is without subject matter jurisdiction to decide a case on its merits, the court is required to either dismiss the action as a matter of law, see Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed.Cir. 1985), or to transfer it to another federal court that would have jurisdiction. See Gray v. United States, 69 Fed.Cl. 95, 102-03 (2005).

The Tucker Act grants this court “jurisdiction to render judgment upon any claim against the United States founded either *99upon 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 Tucker Act waives sovereign immunity, but it does not by itself confer a right to recovery. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (stating that the Tucker Act confers jurisdiction where a substantive right already exists). To establish such a right, the plaintiff must identify a substantive claim founded in some other source of law that “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing Testan, 424 U.S. at 400, 96 S.Ct. 948); see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 473, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (“[A] fair inference will do.”).

Mr. Zhao’s constitutional claims allege violations of Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures, Fifth Amendment rights to due process and equal protection, and a Ninth Amendment right to privacy. Compl. ¶¶ 17, 22.4 These constitutional provisions are not money-mandating sources of law. See, e.g., Crocker v. United States, 125 F.3d 1475, 1476 (Fed.Cir. 1997) (Fifth Amendment due process claim dismissed); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir. 1995) (Fifth and Fourteenth Amendment due process and equal protection claims dismissed); Del Rio v. United States, 87 Fed.Cl. 536, 539-40 (2009) (Fourth, Sixth, and Fourteenth Amendment claims dismissed); Schweitzer v. United States, 82 Fed.Cl. 592, 597-98 & n. 7 (2008) (Fourth, Fifth, Ninth, and Fourteenth Amendment claims dismissed); Ogden v. United States, 61 Fed.Cl. 44, 47 (2004) (Fourth and Ninth Amendment claims dismissed). Accordingly, the court lacks subject matter jurisdiction over Mr. Zhao’s constitutional claims.5

Mr. Zhao’s remaining claims all sound in tort. “[C]ases sounding in tort are *100not cognizable in the court of claims.” Schillinger v. United States, 155 U.S. 163, 169, 30 Ct.Cl. 480, 15 S.Ct. 85, 39 L.Ed. 108 (1894); see 28 U.S.C. § 1491(a)(1). Pursuant to the Federal Tort Claims Act (“FTCA”), district courts have exclusive jurisdiction to consider tort claims against the United States that fall within the purview of the FTCA. See 28 U.S.C. § 1346(b); Wood v. United States, 961 F.2d 195, 197 (Fed.Cir. 1992) (“[Djistrict courts have ... exclusive jurisdiction over tort claims for any amount if they fall within the [FTCA.]”). Consequently, this court lacks subject matter jurisdiction to address Mr. Zhao’s claims for slander, defamation, invasion of privacy, and false imprisonment,6 as these claims all sound in tort and are therefore within the exclusive jurisdiction of the district courts pursuant to the FTCA.7

As an alternative ground for dismissal for lack of jurisdiction, the government has invoked 28 U.S.C. § 1500, which bars this court’s exercise of jurisdiction to consider a cause of action, where, at the time of filing, a suit respecting the same claim was pending in another court. See Keene Corp. v. United States, 508 U.S. 200, 209, 212, 113 5.Ct. 2035, 124 L.Ed.2d 118 (1993) (applying Section 1500); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed.Cir. 1994) (en banc) (same); see also Harbuck v. United States, 378 F.3d 1324, 1328 (Fed.Cir. 2004) (stating Section 1500 was designed to “foree plaintiffs to choose between pursuing their claims in the Court of Claims or in another court”).8 “For the Court of Federal Claims to be precluded from hearing a claim under [S]ection 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief.” Loveladies Harbor, 27 F.3d at 1551; see also id. at 1550 (“Claims are the same where they arise from the same operative facts even if the operative facts support different legal theories which cannot all be brought in one court.”) (internal quotation marks omitted) (citation omitted).

As noted previously, Mr. Zhao filed a complaint in the United States District Court for the Southern District of Texas on June 22, 2009, exactly one month before plaintiff filed this action on July 22, 2009. See supra, at 2 n. 1. The complaint filed in the Southern District of Texas is identical to the complaint filed in this court in all material respects. The recitation of facts, causes of action, and prayer for relief are virtually identical word-for-word in both complaints. Notably, in an order filed by the Honorable Lynn N. Hughes on January 6, 2010, the action filed in the Southern District of Texas was dismissed with prejudice for failure to state a claim and because it was time-barred. Opinion on Dismissal, Zhao v. An Unknown Agent of the Cent. Intelligence Agency, No. *1014:09-1963 (S.D.Tex., Jan. 6, 2010). This dismissal by Judge Hughes does not moot the government’s motion to dismiss for lack of jurisdiction on the basis of Section 1500 because that Section’s jurisdictional constraint appertains to the circumstances that exist at the time the complaint in this court is filed. See Keene, 508 U.S. at 207, 113 S.Ct. 2035 (recognizing and applying “the longstanding principle that ‘the jurisdiction of the [cjourt depends upon the state of things at the time of the action brought.’ ” (quoting Mullan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824) (Marshall, C.J.))). Accordingly, the government’s motion to dismiss for lack of jurisdiction is granted on this ground as well.

CONCLUSION

For the reasons stated above, the government’s motion to dismiss is GRANTED, and this case shall be dismissed without prejudice for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly.9 No costs.

It is so ORDERED.