oRr0lNAt Iln t\t @nitr! $ltatts [.ourt of /r[prs[ @Isims No. l3-363C (Filed: June 4,2014)
+*,*r**{<*)t*+:t"t*:}*:t**.**,r**t ** * *** ** {.,t*
JULIO VILLARS, FILED Plainrifl, :* JUN 4 2rI4 v. r.
THE UNITED STATES, 'H;?-??'&1ffi * Defendant. * * * * * * * * *,t,*,* + * * + * {( * * * * * * * :} * * * * * :r * * * * 1( **
OPINION AND ORDER
DAMICH, Judge.
In this action, Plaintifr Julio villars, acting pro se, alleges that the united states ("Defendant")t breached an impried-in-fa.t .'"rtr, 'piaintiff, who, purswmt to the "ontrii alleged contract, provided services as a confidential human source c,cHs,) in exchanle for an S Visa' ' which could lead to legar permanent residence in trre unitei a.il;. d; Plaintifls contract-based claims constitute counrs I, II and IV ofthe complaint.l piririiir further claims that Defbndant took his property without just compensation in violation of the Fifth Amendment (count III). Defendant hu, lack of subject matter jurisdiction, on the grounds I -ou"d to dir.iss counts r, unJrv io. that theseclaims request the remedy of
' Plaintiffnames a number of entities and individuals in his complaint as "Defendants" other than the Unitedstates. compl. r. ar fl *r" onty proier deiendant in this court is the united States, the court dismisses the claims against these individuals and entities see Llnited States.v sherwood,3l2 u.s. 5g4, 58s (194r); Brownv. (Jnired States, 105 F.3d 621, 624 (Fed,.Cir. 1997). 2 Pursuant to 8 U.S.C. $.1 l0l(aX15)(S), the Attomey General has been granted the authority to issue a nonimmigrant S Visa to a person ,,in possession ofcritical reliable informationconcemingacriminilorganizariono.'""i;;.i;;...[who]...hassupplied such information to Federar or state law enforcement u,rtho.iti", or a Federal or state court; and . . . whose presence in the united states the Attomey General determines is essential to the success ofan authorized criminal investisation. . . _,, specific performance. Defendant further moves to dismiss count III for failure to state a claim upon which relief can be granted.
Because the Court finds that Plaintiffs counts I, II and IV seek the remedy of specific performance, a remedy not afforded to this Court, it must grant Defendant's motion with regard to these claims. Further, the court must dismiss count III because Plaintiff has failed to state a claim upon which relief can be granted. Therefore, for the reasons that follow, Defendant's motions to dismiss are GRANTED.
L Background Facts
In early 2008, Plaintiff alleges that while incarcerated and awaiting deportation to Honduras by Immigration and customs Enforcement ("rcE"), plaintiff co.-ntu"t.a, uy letter' Federal law enforcement agencies including the'Federar Bureau of Investigiion ("FBI") and the Drug Enforcement Administration offering to act as a.i 1"oEa";, informant' complainr ("compl.") nn 12,45. In hii letter, plaintiff $ecified that he was willing to act as an informant in exchange for receiving the infbrmant s visa which would enable him to later become a legal permanent ,"-.id"nt. Compl. fl 2.
In late 2008, plaintiff became a CHS, Def. Br., Ex. 1,2013 Decl. of William Roecker-u 6 ("Ex. l"), and continued as a CHS throughbctober 2010. Compl. flli During this time, plaintiff assisted in the ur.ert of sr.Ipe"ts and the ai."orr".y'or ili.gur drugs, Compl. 11112,41, and was paid at various ti... fo. U, efforts. Ex. f 1 S.- - Plaintiffalso agreed to have a tracling device installed on his truck and for his business telephones to be monitored by the Govemment while acting as a cHS. compl. fltT 36-3s This relationship, plaintiff contends, created an imptiJi-n-Lct contract ;;r*;"'i;ir;; and the FBI. See generally Compl.
In 2009 and 2010, plaintiff was arrested for driving under the influence C,DUD. Ex' I tffl 10, 1l' As a result of rhe second DUI u,,"rt, pi;i*tff *as designared for deportation. Compl. fl 33. However, in order for plaintiff to remain in the country to testifu at the criminal trials for which he had actedas office obtained a material witness warrant. S* grrrroity a cn!, irr" tirril&;;;?#.",. remained detained under the material witn".s Co"rpl-;;.rt_tb.";i;;i;. *fiaot frJm Nou",nb". 10, 2010 to !::y !:201l- Compl. fl 39. His detention, pr"irtiii"ir"g*, caused him to have his truck repossessed and his family evicted. 1d
. At some point, the United states Attomey,s office determined that plaintiff s tesllmony was no longer needed and for some unkno*n reason, praintiff was released rather than being deporred back to_Hondurar. in Chicago, Illinois. See pl. Br. 15; Compl. E". ifir il,l3. To date, plaintiff resides 16. fl II. Procedural History
on May 29,2013 praintiff filed a four-count complaint in this alleges that the FBI breached an implied-in-ruo court. praintiff .onou"i-i'count I), breached an implied covenant ofgood faith and fair dealing (Count II), and that the agency conspired to breach and interfere with an implied-in-fact contract (Count IV). Plaintiff asserts that "his only purpose to enter into a contract with the United States govemment was to reap the Immigration benefits offered in the Immigration and Naturalization Act, 8 U.S.C. $ l10l(a)(15)(S) [to] get the S VISA and become [a] legal permanent resident." Compl. fl 55. Plaintiff further claims that Defendant took his property without just compensation in violation of the Fifth Amendment by (l) installing a transmitter on his truck, using his vehicle and monitoring his telephones and (2) by incarcerating him as a material riritness which lead him to lose his truck and company (count III). In response, Defendant filed a motion to dismiss Plaintiff s complaint, or in the alternative, a motion for summary judgment pursuant to Rulesl2 (bX6) and 56 ofthe Rules of the united states court of Federal claims ('RCFC").3 plaintiff timely responded in opposiriona il D.i";l;; replied.
- On April 29,2014, the Court ordered supplemental briefrng with regard to whetherihis court hadjurisdiction over plaintiff s contract ctaimsl court 5rder (Dkt # f!' Anril 29'2014). The court ordered the parties to address the question as to wiether this court had jurisdiction to order the Attomey General to issue an S visa which would enable Plaintiffto later become a legal permanlnt resident. Simurtaneous briefs were to be filed- o,n or before May 12'2014, 1d. Defendant complied and moved to dismiss counts I, II and IV of plaintiff s complaint pusuant to R^CFC 12(bx1). plaintiff did not timely respond.
III. Standard of Review
A. Pro Se Standard
To begin, parlies acting pr-o.se are generally held ..ress ^ to stringent standards,, than professionallawyers. see,e.g.,Hainesv.krrrrr,'qiii.i.5t9,5t0_it'i;?4["or,nr,J that allegations contained in a pro se compraint be herd to ,.less strrngent standards than
iil rtL' g:i1l1ql i':T9, 'vvz) !f y" se ;.pi u n' v' i'i,,i i,' zs c a d 13 ( [rJne preadlngs orpro "") litigants should be held to F. 3lesser3 5, 1 3 5 7 (Fed. standardih; rhose drafted by professionar lawyers . . . .). Nevertheless, '[t]he a.t trrur acted pro se in the.drafting of his complainr trpruinird"^ excuse its failure, ifsuch rhere be." Iienkev. n'uy .*pfuin iL amUiguities, Uirt il;;;1r, irittairo,u,60F.3d795,799(Fed. cir. 1995).
r Because the Court finds the case ripe for dismissal, the Court need not address Defendant's altemative motion for summary iudgment and denies the motion as moot. a In his response in opp,osition, plaintiffalso requests discovery.
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oRr0lNAt Iln t\t @nitr! $ltatts [.ourt of /r[prs[ @Isims No. l3-363C (Filed: June 4,2014)
+*,*r**{<*)t*+:t"t*:}*:t**.**,r**t ** * *** ** {.,t*
JULIO VILLARS, FILED Plainrifl, :* JUN 4 2rI4 v. r.
THE UNITED STATES, 'H;?-??'&1ffi * Defendant. * * * * * * * * *,t,*,* + * * + * {( * * * * * * * :} * * * * * :r * * * * 1( **
OPINION AND ORDER
DAMICH, Judge.
In this action, Plaintifr Julio villars, acting pro se, alleges that the united states ("Defendant")t breached an impried-in-fa.t .'"rtr, 'piaintiff, who, purswmt to the "ontrii alleged contract, provided services as a confidential human source c,cHs,) in exchanle for an S Visa' ' which could lead to legar permanent residence in trre unitei a.il;. d; Plaintifls contract-based claims constitute counrs I, II and IV ofthe complaint.l piririiir further claims that Defbndant took his property without just compensation in violation of the Fifth Amendment (count III). Defendant hu, lack of subject matter jurisdiction, on the grounds I -ou"d to dir.iss counts r, unJrv io. that theseclaims request the remedy of
' Plaintiffnames a number of entities and individuals in his complaint as "Defendants" other than the Unitedstates. compl. r. ar fl *r" onty proier deiendant in this court is the united States, the court dismisses the claims against these individuals and entities see Llnited States.v sherwood,3l2 u.s. 5g4, 58s (194r); Brownv. (Jnired States, 105 F.3d 621, 624 (Fed,.Cir. 1997). 2 Pursuant to 8 U.S.C. $.1 l0l(aX15)(S), the Attomey General has been granted the authority to issue a nonimmigrant S Visa to a person ,,in possession ofcritical reliable informationconcemingacriminilorganizariono.'""i;;.i;;...[who]...hassupplied such information to Federar or state law enforcement u,rtho.iti", or a Federal or state court; and . . . whose presence in the united states the Attomey General determines is essential to the success ofan authorized criminal investisation. . . _,, specific performance. Defendant further moves to dismiss count III for failure to state a claim upon which relief can be granted.
Because the Court finds that Plaintiffs counts I, II and IV seek the remedy of specific performance, a remedy not afforded to this Court, it must grant Defendant's motion with regard to these claims. Further, the court must dismiss count III because Plaintiff has failed to state a claim upon which relief can be granted. Therefore, for the reasons that follow, Defendant's motions to dismiss are GRANTED.
L Background Facts
In early 2008, Plaintiff alleges that while incarcerated and awaiting deportation to Honduras by Immigration and customs Enforcement ("rcE"), plaintiff co.-ntu"t.a, uy letter' Federal law enforcement agencies including the'Federar Bureau of Investigiion ("FBI") and the Drug Enforcement Administration offering to act as a.i 1"oEa";, informant' complainr ("compl.") nn 12,45. In hii letter, plaintiff $ecified that he was willing to act as an informant in exchange for receiving the infbrmant s visa which would enable him to later become a legal permanent ,"-.id"nt. Compl. fl 2.
In late 2008, plaintiff became a CHS, Def. Br., Ex. 1,2013 Decl. of William Roecker-u 6 ("Ex. l"), and continued as a CHS throughbctober 2010. Compl. flli During this time, plaintiff assisted in the ur.ert of sr.Ipe"ts and the ai."orr".y'or ili.gur drugs, Compl. 11112,41, and was paid at various ti... fo. U, efforts. Ex. f 1 S.- - Plaintiffalso agreed to have a tracling device installed on his truck and for his business telephones to be monitored by the Govemment while acting as a cHS. compl. fltT 36-3s This relationship, plaintiff contends, created an imptiJi-n-Lct contract ;;r*;"'i;ir;; and the FBI. See generally Compl.
In 2009 and 2010, plaintiff was arrested for driving under the influence C,DUD. Ex' I tffl 10, 1l' As a result of rhe second DUI u,,"rt, pi;i*tff *as designared for deportation. Compl. fl 33. However, in order for plaintiff to remain in the country to testifu at the criminal trials for which he had actedas office obtained a material witness warrant. S* grrrroity a cn!, irr" tirril&;;;?#.",. remained detained under the material witn".s Co"rpl-;;.rt_tb.";i;;i;. *fiaot frJm Nou",nb". 10, 2010 to !::y !:201l- Compl. fl 39. His detention, pr"irtiii"ir"g*, caused him to have his truck repossessed and his family evicted. 1d
. At some point, the United states Attomey,s office determined that plaintiff s tesllmony was no longer needed and for some unkno*n reason, praintiff was released rather than being deporred back to_Hondurar. in Chicago, Illinois. See pl. Br. 15; Compl. E". ifir il,l3. To date, plaintiff resides 16. fl II. Procedural History
on May 29,2013 praintiff filed a four-count complaint in this alleges that the FBI breached an implied-in-ruo court. praintiff .onou"i-i'count I), breached an implied covenant ofgood faith and fair dealing (Count II), and that the agency conspired to breach and interfere with an implied-in-fact contract (Count IV). Plaintiff asserts that "his only purpose to enter into a contract with the United States govemment was to reap the Immigration benefits offered in the Immigration and Naturalization Act, 8 U.S.C. $ l10l(a)(15)(S) [to] get the S VISA and become [a] legal permanent resident." Compl. fl 55. Plaintiff further claims that Defendant took his property without just compensation in violation of the Fifth Amendment by (l) installing a transmitter on his truck, using his vehicle and monitoring his telephones and (2) by incarcerating him as a material riritness which lead him to lose his truck and company (count III). In response, Defendant filed a motion to dismiss Plaintiff s complaint, or in the alternative, a motion for summary judgment pursuant to Rulesl2 (bX6) and 56 ofthe Rules of the united states court of Federal claims ('RCFC").3 plaintiff timely responded in opposiriona il D.i";l;; replied.
- On April 29,2014, the Court ordered supplemental briefrng with regard to whetherihis court hadjurisdiction over plaintiff s contract ctaimsl court 5rder (Dkt # f!' Anril 29'2014). The court ordered the parties to address the question as to wiether this court had jurisdiction to order the Attomey General to issue an S visa which would enable Plaintiffto later become a legal permanlnt resident. Simurtaneous briefs were to be filed- o,n or before May 12'2014, 1d. Defendant complied and moved to dismiss counts I, II and IV of plaintiff s complaint pusuant to R^CFC 12(bx1). plaintiff did not timely respond.
III. Standard of Review
A. Pro Se Standard
To begin, parlies acting pr-o.se are generally held ..ress ^ to stringent standards,, than professionallawyers. see,e.g.,Hainesv.krrrrr,'qiii.i.5t9,5t0_it'i;?4["or,nr,J that allegations contained in a pro se compraint be herd to ,.less strrngent standards than
iil rtL' g:i1l1ql i':T9, 'vvz) !f y" se ;.pi u n' v' i'i,,i i,' zs c a d 13 ( [rJne preadlngs orpro "") litigants should be held to F. 3lesser3 5, 1 3 5 7 (Fed. standardih; rhose drafted by professionar lawyers . . . .). Nevertheless, '[t]he a.t trrur acted pro se in the.drafting of his complainr trpruinird"^ excuse its failure, ifsuch rhere be." Iienkev. n'uy .*pfuin iL amUiguities, Uirt il;;;1r, irittairo,u,60F.3d795,799(Fed. cir. 1995).
r Because the Court finds the case ripe for dismissal, the Court need not address Defendant's altemative motion for summary iudgment and denies the motion as moot. a In his response in opp,osition, plaintiffalso requests discovery. In light ofthis opinion, the Court also deniei rne request as moot. B. Motion to Dismiss under RCFC l2(bxl) A motion brought pursuant to RCFC 12(b)(l) challenges the Court's subject matter jurisdiction. see RCFC 12(bX1). Subject matter jurisdiction may be challenged at any time by the parties, or as is the case here, by the court saa sponte. Boothv. unied states,990F.2d617,620 (Fed. cir. 1993). Indeed, this court,slurisdiction to enterrain claims and grant relief, like all Federal courts, depends on the extent to which the united na1 waived sovereign immunity. United Siates v. Testan, 424 tJ.S. 3g2,3g9 !_t11eg ( I 976).The burden of establishing the court's subject matter jurisdiction rests with the plainriff, who must establishj urisdic tion. Lujan v.-Defenders Lywnan|r,504 u.s. 555, 561 (1992); McNuu v. Gen. Motors Acc,eprance Corp. of Ina.,ig|U.{. hA, ne geli4. Even so, when faced with a motion to dismiss for lack of subject matter jurisdiction, a-' court must assume that a undisputed facts alleged in the complaint *. i-., and it must drawallreasonableinferencesintheplaintiffs-favor. scheue)v,Rhodes,ciei.i.iii 236 (1974); see also Henke v. (lniteiSrates,60 F.3d 295, 797 (Fed.Cir. 1995).
C. Motion to Dismiss under RCF.C l2(bx6)
RCFC l2(bx6) allowsfor the dismissal of a complaint if, assuming the truth of ail the allegations, the complaint fails to state ""r"i. "p"r irrtich(Fed.ci..iooz].-ivi"""'a matterof law. Lindsavv. unitedstates,2g5Fsdi52,1257 relief may be granted as analyzing a motion to dismiss under RCFC rztuitolirt" L"rrt must the complainr's undisputed fa*ual allegario;;;;;;iJ."nstrue also accept as true favorabletoplainriff. Goutd, Inc.". them in a light most and "the. [f]actual allegations must be uin;iitoi,slJ;za n71,1274(Fed.Cir. l99l), enough to ,ui." u.igfrt to relief above speculative level.,' Belt Attantic Corp. the rirr*fiy,-iii U".s. S++, 555 (2007. ". IV. Discussion
Defendant raises two trral gris .",n,".i.,:"Tilil,i;f ,T;:Ji';ffi::#tl""f:il:il* 1g3es seeks specific performance ralher than money d;;g;. ,:ii'h,j ," G"ona, Defendant argues that Lt1'r1tt{n", not adequarely pleaded a state a claim upon which relief may ,Jil; il;il, ti.,.rrtir.., his complaint fails to be granied.
A. This Court Lacks Jurisdiction over Counts I, II and IV Defendant argues that by plaintiffs own words the alleged implied-in_fact contract never contemplated monetary damages uut trtui inri.uo the actual relief plaintiff seeks is specific performance. fnur,b"f.na'_t;;;;", counts I, II and IV fall beyond thejurisdiction of this coun as provided by the Tucker act.
Pursuant to the Tucker Act' 2g u.s.c. $ l4g l , this court maintains jurisdiction entertain monetary claims founded to upon ttt"r*ing, iiurri united states Constitution, money-mandating statutes and reguraitions'o, "r,rr" I49l(axl) A contract whichintirles p*vi""-."".y "ont u"tr. 2s u.s.c. $ " iu,iug., in the event of a breach is such a money-mandating source. See Rick's Mushroom Service, Inc. v. United States, 521 F.3d 1338, 1343-44 (Fed. Cir. 2008). However, "consent to suit under the Tucker Act does not extend to every contract." Holmes v. United States,657 F.3d 1303, 1309. For instance, a contract claim seeking specific performance is not a remedy that this court is empowered to grant. Nat 'l Center for Mfg. Sciences v. United States, 114 F .3d 196, 198 (Fed. cir. 1997). But because there is a presumption that money damages flow fiom a breach of contract, see Holmes,657 F.3d atl3l4; see also sanders v. united states, 252 F '3d' 1329, 1334 (Fed. cir. 2001) (in govemment contracts there is a presumption that a damages remedy will be available upon the breach ofan agreementj, wher; a contract "could involve purely nonmonetary relief. . . it [i]s proper for the court to require a demonsfation that the_agreements coutd fairly be interpreted as contemplating money damages in the event of b reach." Holmes,6sT F.3d, at Ii15. In this instance, ' "[t]his court may require a plaintiff to render proofthat the contract can fairly be interpreted as mandating compensation by the Federal Government.,, Higbie v. United 1 t: Fed.,Ct. 35 8, 363 -64 (20 | 3) (quoring :!:::,', omltted). Hot me s, 657 F.3d ut r :Ts luaaitionui clranons
In this case, Plaintiffa eges in his complaint that the "only purpose,' to enter into the alleged implied-in-fact contract was to receive legal permanent residence through an S Visa and that he "never asked to be m_onetary[illy ,".,nin..ur.d... S", Co,"pi. ;fl ;;_;;. It is therefore clear to the court that by plaintiiisiwn conracrrever contemplated monetary damages, but words the i;;ii"i_i;_f;;--' "ll.g"d instead tt at th. rlli"f pLi"tiff i. seeking is specific performance_of the utt.g"i Plaintiff is requesting the specific perfo..i"." "ont.u"i*iit, o"r.na*t. sp""rn""'y, oiii6 uriegea implied-in-fact contract by asking this court to order the Attoiney General Visa. This Court does not possess jurisai",."," ortrr" uni"a sti., t" i.rr"li;;.{ " Court must dismiss g;,;h relief. In light of this, the Counts r, rt anj ry f". il;l-;f;;j';Latter jurisdiction. B. There are no Cognizable Takings Claims Upon Which Relief can be Granted
The Takings Clause ofthe Fifth Amendment states thar .,private property not be taken forl public use, wirhout jusr.;p;;:;;;;:;.s. coNST. amend. V. A [shall claimanr alleging a Fifth Amendmeni taktd;;i;;:;;show that the united srates, bv v!E,vo, vr actior, tooka private propert! int...rt ro. puiti. ::::lry..1fi. compensarion.', Short v. United St r"r. present case, Plaintiffa'eses two. "r.;i,h";l;r; 5O f,.3d 9g4, rc06@ed. Cir. f llS;. fn tne takings ctartns, neiihe. orwhich are First, Plaintiff alleges thatbefena-,,"-"t a cognizable claim. ni. p.?p"r,, *iifr"rr:rst compensation in violation of the Fifth Amendment by. incar."."',i"g caused him to lose his truck liir u.l-ut".,ut witness which then as a material witness does not -o ttu.r.ing *-f-].'ilil of this, plainriff s detention qqger a takings .tuirn uni".1n. Fifth Amendment. ,See Hurtado.v Ltnitedstates'+touil:za,iss:89(6i,;'crh"detentionofamaterial wrtness, in short, is simolv not a ,taking, una". tfre pilih'Amendment. . . .,,) Second, Plaintiff alleges rhat bv instalinga fan-smitter on rr" i."r.'ov using his vehicles while CHS, and by monitoring his relelhones, a ,h";"i;;;;;;L'o toot tris property without iust compensation. This argument also fails as Plaintiff consented to its use.5 Compl. lltf 14, 36-37 F.C,C. v. Florida Power Corp.,480 U.S. 245, 252 (9e7); Ruckelshaus v. Monsanto Co.,467 U.S. 986, 1007 (1984). Therefore, the Court dismisses Plaintiffs takings claims under RCFC 12(bX6) for failure to state a claim upon which reliefcan be granted.
V. Conclusion
For the reasons set forth above the Court GRANTS Defendant's Motion to Dismiss Counts I, II and IV for lack of subject matter jurisdiction pursuant to RCFC l2(b)(1) and GRANTS Defendant's Motion to Dismiss Plaintiff s takings claims for failure to state a claim pursuant to RCFC 12OX6). The Clerk is directed to enter judgment accordingly.
EDWARD J: AMICH Senior Judge
5 In his responsive brief, Plaintiffalso asserts that he was coerced into consenting to wearing a radio transmitter. Pl. Br. 10. Even if the Court were to credit this allegation, this court lacks jurisdiction for such a claim. See Crocker v. United States, 125 F.3d 147 5, 1476 (Fed. Cir. 1997) (Tucker Act does not create jurisdiction in the Court of Federal Claims for a party contesting the propriety ofa seizure); Tabb Lakes, Ltd. v. united states,10 F.3d 796, 802 (Fed. Cir. 1993) ("[The] claimant musr concede the validity of the government action which is the basis ofthe takings claim to bring suit under the Tucker Act.).