Kpaka

In the United States Court of Federal Claims No. 18-928€ (Filed: September 7, 2018) (NoT To BE PUBLISHED) **$$**$$*$**$$*$$************$**** ) LINDA A. KPAKA and ) MAHAMUD s. KPAKA Il, ) _H __` ) "-l` ' ' + Plaintiffs, ) i l L'h" § sEP -? 2018 V. ) u.s. count OF UNITEI) sTATES, ) FEDEF*A\- CLA‘MS ) Defendant. ) ) ********$$**********$*********$*** Linda A. Kpaka and Mahamud S. Kpaka, pro se, NeW Yorl<, NY.

Amelia Lister-Sohotl<in, Trial Attorney, Comrnercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendantl With her on the brief Were Chad A. Readler, Acting Deputy Assistant Attorney General, Civil Division, and Robert E.

Kirschman, Jr., Director, and Lisa L. Donahue, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. OPINION AND ORDER LETTOW, Senior Judge.

Plaintiffs Linda and Mahamud Kpaka have brought suit seeking equitable relief and discovery against the United States, naming specifically the United States District Court for the Southern District of New York and several agencies of NeW York City. Compl. at 2-3.1 They allege improper treatment by city officials While homeless, Compl. at 5-9, and request this court to order New York City to produce records of public assistance given by the City to the Kpakas, Cornpl. at 2-3, 10.

The United States has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 7. Mr. and Mrs. Kpaka have not responded in opposition to the government’s motion,

lThc complaint names New York City’s Department of Homeless Services and I-Iuman Resources Administration. Compl. at 2. The complaint also requests this court to order relief against United States Marshals in New York City, the New York City Police Department, and a specific city police offloer. Compl. at 2~3. ?|J|JE EE'?|J [I|I|[|IL BEE|E BDEL

although they had filed a supplement to the complaint on July 16, 2018, see Suppl. to Compl., ECF No, 6, prior to the government’s motion to dismiss The supplement did not state any new claims, but contained additional exhibits and facts regarding social services provided to the Kpal<as and included a draft of a proposed order granting “search and seizure” of electronic records held by both Nevv Yorl< City’s Department of Horneless Services and its Human Resources Administration. Id. Because this court lacks subject-matter jurisdiction over the complaint, the government’s motion to dismiss the Kpal<as’ complaint is granted BACKGROUND The Kpal<as have been homeless and receiving public assistance from New York City since March 2015. Compl. at 5. During that time, the Kpakas allege that they have experienced, at the hands of city officers and employees, poor conditions within shelters, sexual harassment, invasion of privacy, thefts of their public assistance benefits, prescription drug fraud, identity theft, mortgage fraud, and hate crimes and discrimination based on marital status. Compl. at 5-6.

They specifically mention being forced onto the streets from a shelter room Without explanation on a cold night, attempted intrusions into their room late at night, a mortgage payment listed in their Human Resources Administration statement of public assistance When they do not own a house, and improper payments to shelters on their behalf. Compl. at 6-7. They have been homeless outside of the shelter system since November 2017. Compl. at 9.

In 20§6, the Kpakas sued for redress of the alleged mistreatment in the United States District Court for the Southern District of New York. Compl. at 4. Most, but not all, of the defendants in that case have been dismissed, although the Kpal<as appear to have filed an appeal With the United States Court of Appeals for the Second Circuit. See Compl. at 4 & n.1; See also Kpaka v. New York, No. l:l6~cv~05205 (S.D.N.Y.).2 The Kpakas claim that the Southern District of New Yorlt “shows no concern{] o[ver] [their] [h]ousing matters or [that they] have been living and suffering inhumanely without reasonable shelter, lavatories[,] and access to adequate nutrition . . . .” Compl. at 9.3 This suit is still pending against the City of New York and three Human Resources Administration security officers4

2The Kpakas’ complaint asserts jurisdiction “based on a recently dismissed case before F ederal Coutts in the Southern District of New York[, No. l:l6-cv~05205].” Compl. at 3. This case, however, is still active. See Kpaka v. New York, No. l:l6~cv-05205 (S.D.N.Y.).

3Tvvo years ago, Linda Kpaka lost an employment discrimination suit in the Southern District of New Yorlt, Which Was subsequently affirmed by the Second Circuit. See Kpaka v. Cilj) Univ. ofNew York, No. l4-CV-6021, 2016 WL 4154891 (S.D.N.Y. Aug. 2, 2016), ajjf’d, 708 Fed. Appx. 703 (Zd Cir. 2017). Additionally, Mrs. Kpaka also claims to have filed “several judicial conduct and disability complaints against several judiciaries in the Southern District [] of New Yorl< and [NeW York state court].” Compl. at 4. The complaint implies that other state or federal cases have been filed and might be pending See Compl. at 4, 8, 4See Kpaka, No. l:lG-cv-OSZOS. The United States Was not named as a defendant in the district court action. Id.

ln February 2018, due to a decrease in assistance payments, Mrs. Kpal<a requested a report of the public assistance being provided to her and Mr. Kpalta. Compl. at 7. Mrs. Kpal<a alleges that a mortgage payment is listed on the report, but she asserts that she does not have a mortgage. Compl. at 7. She also noted payments to shelters despite being unsheltered since November 2017. Compl. at 7, 9. The Kpakas sought to obtain from New York City their “personal financial data records” to determine if they Were victims of identity theft or other fraud, but “encounter[ed] harassment, hostility[,] or physical threats With every . . . visit.”

Compl. at 7-8, They have been unsuccessful in obtaining the requested personal records, Compl. at 8, 9, prompting them c‘to petition [this court] against the United States Southern District of New Yorl< and [New Yorl< City] Human Resources Administration [and] Department of Homeless Services,” Compl. at 9.

The Kpal<as filed their complaint in this court on June 26, 2018 relating to alleged mishandling of records of their government benefits and improper actions by governmental officials. Compl. at 3. They petition this court to order the Southern District ofNew Yorl<; and the New York City Police Department to “search and seiz[e] [their] official data records . . .” from April 2015 until the present “for payments paid [] for shelter, heat, housing[,] and nutrition from the New York City Departrnent of Homeless Services and [} Hurnan Resources Administration.” Compl. at 3; Suppl. to Compl. at 3. The Kpal<as also request “official data records” associated With their Social Security Numbers and “calculations of payments made within the [c]ity agencies for [their] food and shelter costs.” Compl. at 8~9. The Kpakas state expressly that their claim “is not for monetary judgment against the . . . United States for the other defendants].” Id. at 10.

STANDARDS FOR DECISION A. Rule 12(!)) (1) e Lack ofSubject~Ma/tter Jurisdiction The Tucl<er Act provides this court with jurisdiction over “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 Tuclter Act does not, however, provide a plaintiff with any substantive rights United States v. Tesfan, 424 U.S. 392, 398 (1976). To establish this court’s jurisdiction under the Tucker Act, “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United S!a!es v. Mz`tchell, 463 U.S. 206, 2l6 (1983); Testan, 424 U.S. at 398). If a plaintiff fails to raise a claim under a money-mandating provision, this court “lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.” Jan ’s Helicopter Serv., In.c. v. Federal Aviafion Act'mz'n., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cly. v. United States, 437f F.3d 871, 876 (Fed. Cir. 2007)).

This court may award equitable relief Where specifically authorized by statute. National Az`r Trajj?c Comrollers Ass ’n v. United States, 160 F.3d 714, 716~l7 (Fed. Cir. 1998) (“Congress has authorized the Court of Federal Claims to grant equitable relief in certain limited circumstances, . . . [but there is no] general authority to grant equitable relief . . . .”). Under the Tucker Act, equitable relief is limited to instances “incidental and collateral to” ajudgment for

monetary damages 28 U.S.C. § l49l(a)(2); see James v. Caldem, 159 F.3d 573, 580 (Fed. Cir. 1998) Mr. and Mrs. Kpaka, as plaintiffs, must establish jurisdiction by a preponderance of the evidence. Trusted lnregralion, ]nc. v. United States, 659 F.3d 1159, ll63 (Fed. Cir. 2011) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on the government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintif .” Id. (citing Henke v. United Slates, 60 F.3d 795, 797 (Ped. Cir. 1995)). “lf a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v. United Smfes, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1l16 (Fed. Cir. 1985)); see also RCFC 12(h)(3) (“If the court determines at any time that it lacks subject~matter jurisdiction, the court must dismiss the action.”).

B. Transfer under 28 U.S.C, § 1631 If a court finds it lacks subject matter jurisdiction over a civil complaint, “the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed . . . .” 28 U.S.C. § 163 l.

Transfer is in the interest of justice if the claims are “nonfrivolous and . . . should be decided on the merits.” Ga.lloway Farms, Inc. v. United Sl'ates, 834 F.2d 998, 1000 (Fed. Cir. 1987).

ANALYSIS I. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction The government contends that this court lacks jurisdiction, arguing that this court has jurisdiction only over claims against the United States, may not review district court decisions, lacks jurisdiction over tort and criminal allegations, and lacks general equitable authority. Def.’s Mot. at 4-7. In their complaint, the Kpakas assert that this court has jurisdiction because “of a recently dismissed case before F ederal Courts in the Southern District of NeW Yol'k.” Compl. at (referring to Kpaka, No. l:l6-cv-05205 (S.D.N.Y.)). lf this court is to exercise jurisdiction over any of Mr. and Mrs. Kpal<a’s claims, it must do so under the Tucl<er Act, 28 U.S.C. § l49l(a). Other statutory grants of jurisdiction to this court are inapplicable.

A. Cla.ims Against New York City ’s Departmenr ofHomeleSS Servz`ces and Human Resources Adminisrration Under the Tucker Act, this court can only hear claims against the United States, and only claims for monetary compensation resulting from a breach of contract With the federal government or from federal government violations of constitutional, statutory, or regulatory law, excepting tort cases 28 U.S.C. § l491(a). This court may not consider claims against states or cities or their instrumentalities See, e.g., Bowles v. United Statcs, 639 Fed. Appx. 647 (Fed. Cir. 2016). Accordingly, all requested relief against New York City or its Department of Homeless

Services or Human Resources Administration, or for an order to the New York City Police Department or its officers, are outside this court’s jurisdiction and must be dismissed B. Request to Aajf'udicate Tort or Crfminal Allegations The Tucl<ei‘ Act excludes tort claims from this court’s jurisdiction. E.g., 28 U.S.C. § 1491(a); see al.so, e.g., NewAm. Shipbuilders, ]nc. v. United States, 871 F.2d 1077, 1079 (Fed. Cir. 1989). This court also lacks jurisdiction over criminal claims See, e.g., Br'own v. United Stal‘es, 88 Fed. Cl. 322, 328 (2009) (citing Joshua v. United Smtes, 17 F.3d 378, 379 (Fed. Cir. 1994)).

T he Kpal<;as allege several torts, such as assault, fraud, and invasion of privacy, which were allegedly perpetrated by private individuals or city employees Compl. at 5-9; Suppl. to Compl. at 2. While the Kpakas do not cite criminal statutes, they stylize the complaint as “criminal” and allege being assaulted by several city employees and experiencing theft of their identities and of government benefits Compl. at 5-9; Suppl. to Compl. at 2. To the extent the complaint requests relief for torts or crimes, this court lacks jurisdiction over any of these tortious or criminal allegations, and those claims must be dismissed for lack of jurisdiction C. Requestsfor Equitable Reliefand Appellate Review The Kpakas request this court to “issue an order to the United States [District Court for the] Southern District of New York[,] United States Marshal[]s [in NeW York Cityj, and the Nevv Yorl< City Police Department . . . for search and seizure of [their] official data records” dating back to April 20l5. Suppl. to Compl. at 3. For this court to grant equitable relief under the Tucker Act, the relief must be “incidental and collateral to” a judgment for damages 28 U.S.C. § 149l(a)(2); see James, 159 F.3d at 580. The order requested by the Kpakas is not collateral to any monetary claim against the United States. They specifically disclaim a monetary claim against the United States. Compl. at 10 (“not for monetary judgments against Defendant United States”).

Additionally, this court lacks judicial power to issue an order to a federal district court and to exercise appellate review over district court decisions See Joshua, 17 F.3d at 379 (“The Court of Federal Claims does not have jurisdiction to review the decisions of district courts or [their] clerks . . . relating to proceedings before those courts.”). Further, the Kpakas are attempting to appeal decisions in the proceeding before the Southern District of New York and that case remains active, Compl. at 4 n.1, and this court lacks jurisdiction to hear cases pending before other courts, see 28 U.S.C. § 1500 (no jurisdiction where suit is pending in any other court); Ministerio Roca Solz'da v. United States, 778 F.3d l351, 1353 (Fed. Cir. 2015). If the Kpal<as believe the District Court for the Southern District of NeW York erred it its decisions, the proper remedy is to appeal to the United States Court of Appeals for the Second Circuit, as they have done, not to request re~litigation by another trial court This court may also not award the relief requested against the United States Marshals The Marshals are not named as defendants and the complaint alleges no facts alleging any Wrongdoing by the Marshals. No monetary relief is sought from the l\/iarshals, and therefore the requested relief cannot be collateral. Instead, it appears the Kpakas merely seek this court to order the Marshals to execute their “search and seizure” request.

Because the Kpakas seek only equitable relief that is unrelated to a claim for damages against the United States, their complaint must be dismissed for Want ofjurisdiction.

II. Transfer under 28 U.S.C. § 1631 The Kpal<as have not requested transfer of their complaint, but this court may transfer claims upon finding that it lacks jurisdiction, the transferee court has jurisdiction, and transfer is in the interest of justice. 28 U.S.C. § 1631. The government has preemptively opposed a transfer request Def.’s Mot. at 8. The court concurs that transfer of this case is not appropriate Transfer is not in the interest of justice if litigation Would be barred by res judicata or collateral estoppel, or if the case is pending in another court. See Momagne v. United States, 90 Fed. Cl. 41, 49 (2009) (rejecting transfer after dismissing the case because the plaintiffs already lost on their claims in the United States Tax Court).

CONCLUSION For the reasons stated, the government’s motion to dismiss the Kpakas’ complaint is GRANTED. The clerk shall enter judgment in accord with this disposition No costs lt is so ORDERED. s%rn/ Charlves F. Lettow Senior Judge