Sepehry-Fard v. United States

lJn tW @nftr! $ltstts {.ourt of frlersl @Iuims No. 19-560C (Filed: May 9,2019) NOT FOR PUBLICATION

Fareed Sepehry-Fard Pro se; Sua Sponte Dismissal; Lack of Pro Se Plaintiff, Subj ect Matter Jurisdiction; First Amendment; Fourth Amendment; Fifth Amendment; Federal Criminal Code: State Law.

THE LTNITED STATES, Defendant.

ORDER OF DISMISSAL FOR LACK OF JURISDICTION Plaintiff Fareed Sepehry-Fard, proceedingpro se, filed the instant complaint against the united states ("the govemment") alleging that the Department of Justice C'DOJ') defaulted on its obligation to arrest multiple individuals for committing felonies against the plaintiff. compl. at pp. l, 5,7 . The plaintiff asks the court to enforce the plaintiffs "Notice of Default"l and requests an oral hearing under the Federal Rules of Evidence 201(e).2 Compl. at pp. 1-2, 5. The plaintiff claims that this court has iurisdiction

t Plaintiff attached as Exhibit 1 a "Notice of Default" which appears to be a letter sent by the plaintiffto the President, Department ofJustice, Pentagon, and the United States Secret Servrce demanding the arrest of multiple individuals. Comol. at 12- I 3.

Rule 2011e; of the Federal Rules ofEviden.. ,tuG. "[o]n timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takesjudicial notice before notifying a party, the party, on request, is still entitled to be heard." over the plaintiff s claims under 42 U.S.C. $ 1990,3 t8 U.S.C. $$ 2,3,4,246,65t, 1346, 1512,4 33 U.SC. $ 1365,5 tort law, two Executive Orders,6 the First, Fourth, and Fifth Amendments of the United States Constitution. and the Constitution of the State of California.

The plaintiffls complaint must be dismissed because this court does not have subject matter jurisdiction over any ofthe plaintiff s constitutional, tort based, statutory, or state law claims. Accordingly, under Rule 12(h)(3)? of the Rules of the United States Court of Federal Claims C'RCFC') the plaintiff s complaint is DISMISSED.

The Tucker Act grants this court 'Jurisdiction to renderjudgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation ofan executive department, or upon any express or implied contract with the United States . . . in cases not sounding in torr." 28 U.S.C. g la91(a)(1). In order for a claim to fall within fall within the scope of the Tucker Act, "a plaintiff must identi$r a separate source of substantive law that areates the right to money damages." Fisher v. United States, 402 F .3d 1167 , 1772 (Fed. Cir, 2005) (en banc in rclevant part). The court must "'satis$, itselfthat it has jurisdiction to hear and decide a case before proceeding to

'42 U.S.C. $ 1990 permits courts to fine marshals that do not enforce a magistrate judge's warrant issued under 42 U.S.C. 0 1989. l8 U.S.C. gg I er seq. conlains rhe Federal Criminal Code. ' U.S.C. $ 1365 is the citizen suit provision in the Clean Water Act.

The plaintiffrefers to the President's Executive Order dated December 21, 2017 and Executrve Order 13849. nute tZltr;1:; provides "[i]f the courl determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." the merits."' Hardie v. United States,367 F.3d 1288,1290 (Fed. Cir. 2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co.,304 F.3d 1235,1242 (Fed. Cir. 2002)).

The plaintiffhas the burden ofproving jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch, 9erv.,846F.2d746,748 (Fed. Cir. 1988.

Although the pleadings of pro se plaintiffs will be held "'to less stringent standards than formal pleadings drafted by lawyers,"'./o hnson v. United States,4l l F. App'x 303, 305 (Fed. Cir. 2010) (quoting Haines v. Kerner,404 U.S. 519,520 (1972)), this does not rclieve apro se plaintiff from his burden to meet jurisdictional requirements. Minehan v. United States,75 Fed. Cl. 249,253 (2007) (quoting Kelley v. United States, 812 F .2d 1378, 1380 (Fed. Cir. 1987)).

The plaintiff has failed to establish subject matter jurisdiction for the following reasons. First, under the terms of the Tucker Act, as quoted above, this court does not have jurisdiction over tort claims. Rzcft's Mushroom Serv., Inc. v. United States, 521 F.3d I 33 8, 1343 (Fed. cir. 2008) ("[t]he plain language of the Tucker Act excludes from the Court of Federal Claims Jurisdiction claims sounding in tort") (citing 28 U.S.C. $ 1491(a)(1)). Second, the plaintiffs allegations ofviolations under the Federal Criminal code are unreviewable in this court. Joshua v. United states,17 F.3d 378,379-380 (Fed. Cir. 1994) (affirming that the Court of Federal Claims has no iurisdiction whatsoever to adjudicate claims under the Federal Criminal Code).

Third, this court does not have jurisdiction over the plaintiff s claims based on the First, Fourth, and Fifth Amendments to the united States constitution because those Amendments are not money-mandating. See United States v. Connolly,i16F.2dgg}, (Fed. Cir. 1983) ("the [F]irst [A]mendment, standing alone, cannot be so interpreted to command the payment of money"); Brown v. Uniled States, 1 05 F.3d 621, 624 (F ed. Cir. 1997) ("Because monetary damages are not available for a Fourth Amendment violation, the Court o Federal Claims does not have jurisdiction over such a violation"); LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) ("[Appellant's] complaint included counts alleging violations of his rights under the Due Process Clauses of the Fifth and Fourteenth Amendments . . . None of these is a sufficient basis for jurisdiction because they do not mandate payment of money by the govemment").

Fourth, the plaintiffs remaining grounds forjurisdiction based on Federal statutes do not establish jurisdiction. 42 U.S.C. $ 1990 does not mandate money payment to the plaintiff from the United States; rather, Section 1990 allows the court to fine a marshal when the marshal does not obey a magistrate judge's warrant. See Russo v. Dunn,No. 2:17-1005,2017 WL 8159313, at * 8 Qrtr.D. Al. Nov. 20,2017). Additionally, the Clean Water Act's citizen suit provision grants jurisdiction in district courts and not this court.

See 33 U.S.C. $ 1365(a) ("The district courts will have jurisdiction . . . to apply any appropriate civil penalties . . .").

Fifth, none of the executive orders that the plaintiffcites are money-mandating sources of law that give the court jurisdiction. The Executive Order issued by the President on December 20,2017 states that it "is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any pany against the united states, its departments, agencies, or entities, its officers, employees, or agents, or any other person." See also, Executive Order 13849, 83 Fed. Reg. 491 195, 48200 (Sep. 21,2018) ("This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.").

Finally, the court does not have jurisdiction based on the California State constitution. See Cabralv. United States,3lT Fed. App'x979,982 (Fed. Cir. 2008) ("the Court of Federal Claims does not have jurisdiction over claims founded on state law") (citing Souders v. S.C. Pub. Serv. Auth., 497 F .3d 1303, 1307 (Fed. Cir. 2007)).

CONCLUSION Because this court does not have subject matter jurisdiction over any ofthe claims in the plaintiff s complaint, the court DISMISSES the plaintiff s complaint pursuant to RCFC 12(hX3).8 The clerk is directed to dismiss the plaintiff s complaint.e

IT IS SO ORDERED.

" The plaintiff also filed a motion for a three month stay on May 6, 2019. The plaintiff s motion is DENIED AS MOOT. e The plaintifffiled a motion to proceed informa pauperis on Apnl 8, 2019 (Doc. No. 2). The plaintifls motion is GRANTED solely for the purposes of this order.