Burmaster v. United States

''liriilSl rr,, _ii!dit[= lJn tbt @nfte! $rtstts @ourt of ftlprul @lsfmg No. l7-1903C FILED (Filed: March 22,2018) MAR 2 2 2018 (NOT TO BE PUBLISHED) U.S. COURT OF + * * * i(,1.'i'1. :1. {. * * *,1.'} * :1. r. :t * + rr *,f * * * * * * * * * * FEDEML CLAIMS

BRIAN M. BURMASTER,

Plaintiff,

UNITED STATES,

Defendant, *:** r. :t* * * *** *+ +* * !t** ******** *** *** *

Brian Burmaster, pro se, Milwaukee, Wisconsin.

Civil Division, United Sean Siekkinen, Trial Attomey, Commercial Litigation Branch, States Department of Justice, Washington, D.C., for defendant. With him on the briefs were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Brian Burmaster, has filed a complaint seeking equitable and monetary relieffor harms allegedly caused by the United States. See Compl. at l, 4;r Def.'s Mot. to Dismiss ("Def.'s Mot.") at 2, ECF No. 6. Though the exact facts and allegations are somewhat indefinite, it appears that Mr. Burmaster was indicted for "threatening communications" in 2008 and was subjected to two separate, allegedly unlawful incarcerations without ever standing trial. See Compl. App. B. at 4-5; Compl. at 2. He was first held in Utah for 506 days between 2008 and 2009 and in Louisiana for 735 days between 2015 and 2017, for atolal of 1,241 days. Compl. at 2l Def.'s Mot. at l. Mr. Burmaster claims that these detentions were unlawful because "[t]here was never a trial as mandated by the Sixth Amendment of our sacred [United States] Constitution." Compl. at 2. He claims that he was "denied . . . that fundamental human right"

rBecause only portions of the complaint are paginated, citations to particular pages ofthe complaint refer to the order in which the pages actually appear.

?BIh 3010 BB0D IJ308 q515

by "[g]ovemment psychiatrists [who] . . . falsely stat[ed] that [he] was incompetent to stand trial." Compl. at 2 (intemal quotation marks omitted).

As a remedy for the alleged deprivation of his Sixth Amendment rights and the 1,241 "hostage days" he spent in prison without a trial, Mr. Burmaster requests "the sum of $1 12 million, which is in accordance with the intemational unlawfi,rl imprisonment rate []per the Intemational Court of Justice." See Compl. at 2. According to Mr. Burmaster's reading of the decision ofthe International Court of Justice in United States of America v. 1ran, hostages were compensated at the rate of $10,000 per day ofcaptivity in 1979; "[i]n today's inflation-adjusted currency, this amounts to $30,000 per day." See Compl. at 2. Because Mr. Burmaster seeks treble damages against the United States under 18 U.S.C. $ 196a(c), the Racketeer Influenced Corrupt Organizations ("RICO") Act, he claims putative damages totaling $112,000,000. See Compl. at 2, 4.

Mr. Burmaster also seeks various fbrms of equitable relief including declarations that "the United States of America is not a [r]ogue [n]ation," that "Americans honor both the word and letter of [their] intemational commitments," that the "'Mental Health' statutes (18 [U.S.C. $] 4241 through l8 [U.S.C. $] 4246)" are unconstitutional, and that Mr. Burmaster is "competent to stand trial." see compl. at 4.

Pending before the court is the govemment's motion for dismissal of Mr. Burmaster's complaint under Rules 12(b)( I ) of the Rules of the Court of Federal Claims for lack of subject matter jurisdiction. See generally Def.'s Mot. Mr. Burmaster has responded in opposition to the govemment's motion, see generally Pl.'s Resp., ECF No. 7, and all briefing has been completed.

STANDARDS FOR DECISION

In any action, the plaintiffhas the burden of establishing jurisdiction. Reynolds v. Army & Air Force Exch. Serv.,846 F.2d 746,747 (Fed. Cir. 1988). When ruling on a motion to dismiss for lack ofjurisdiction, the court must "accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable inferences in favor of the plaintiff." Trusted Integrqtion, Inc. v. United Stares, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The leniency afforded to apro se plaintiff with respect to formalities does not relieve pro se litigants oftheir obligation to satisfy jurisdictional requirements, Kelley v. Secretary, United Stdtes Dep't of Labor,812 F .2d 1378, 1380 (Fed. Cir. 1987).

The Tucker Act waives the sovereign immunity of the United States, see United States v. Mitchell,463 U.S. 206,212 ( 1983), and provides this court with jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act ofCongress[,] or any regulation ofan executive department . . . for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $ 149l(a)(l). However, the Tucker Act does not provide a plaintiff with substantive rights. United States v. Testan,424 U.S.392,398 (1976). Rather, to establish jurisdiction, "a plaintiff must identify a separate source of substantive law that creates the right to money damages ." Fisher v. United States,402 F.3d 116'7 , 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing Mitchell,463 U.S. at216; Testan,424 U.S. at 398). Jurisdiction over claims for money damages does not give rise to "independent jurisdiction over. . . claims for

equitable relief." ,See Taylor v. UnitedStates,ll3 Fed. Cl. 171,173 (2013);see also United States v. King,395 U.S. l, 2-3 (1969) (citing Glidden Co. v. Zdanok,370 U.S. 530, 557 (1962)); IJnited Stqtes v. Jones, 131 U.S. 1, 9 (1889), United States v. Alire,73 U.S. (6 Wall.) 573, 575 (1367)); Halim v. United States, 106 Fed. Cl. 677, 684-85 (2012) (citing National Air Traffic Controllers Ass'n v. United States, 160 F.3d 714,716-17 (Fed. Cir. 1998)) ("This court has never been afforded the general authority to issue declaratory judgmcnts or to grant injunctive relief.").

This court also has jurisdiction over claims for damages attributable to "unjust conviction and imprisonment." 28 U.S.C. $ 1495 ("The United States Court of Federal Claims shall have jurisdiction to renderjudgment upon any claim for damages by any person unjustiy convicted of an offense against the United States and imprisoned."). But a suit under Section 1495 must be accompanied by proofthat the plaintiff s "conviction has been reversed or set aside on the ground that he is not guilty ofthe offense of which he was convicted . . . or that he has been pardoned upon the stated ground of innocence and unjust conviction." 28 U.S.C. $ 2513(a). Proof of such facts "shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received;' 1d. $ 25 13(b) (emphasis added). Submission of the certificate specifred in Section 2513(b) is necessary to establish a basis for a claim pursuant to Sections 1495 and2513. Sykes v. United States,l05 Fed. Cl.231,233(2012) (citing Vincin v. [Jnited Stqtes,468 F.2d 930,933 (Ct. Cl. 1972)); see also Grayson v. United Stares,l4I Ct. Cl. 866, 869 (1958).

"lf a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law." Gray v. United Stares, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle,T4 U.S. (7 Wall.) 506, 514 (1868)); Thoen v. United States,765 F.2d 1110, 1116 (Fed. Cir. 1985); see also Trevifio v. United States,1l3 Fed. CL.204,207 (2013) ("Where the court has not been granted jurisdiction to hear a claim, the case must be dismissed.") (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006D.

ANALYSIS

This court lacks jurisdiction over Mr. Burmaster's various claims for declaratory relief. See Toylor,113 Fed. Cl. at 173. The court also lacks jurisdiction over any claims that may be cognizable under the RICO Act because jurisdiction over such claims "is conferred exclusively on the united srates District courts." Cf. Lowe v. united states,76 Fed. cl. 262,266 (2007); 18 U.S.C. $ 1964(c) ("Any person injured in his business or property by reason ofa violation of [the RICO Actl may sue therefor in any appropriate United States district court;') (emphasis added). Therefore, Mr. Burmaster is not entitled to seek treble damages in this court.

Under the Tucker Act, the court's jurisdiction is limited to, among other things, claims "for liquated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $ 1491(a)(1). To the extent that Mr. Burmaster alleges that his detentions were tortious, there is no jurisdiction to consider such claims. Pusuant to 28 U.S.C. $$ 1495 and 2513, this court also lacks jurisdiction over Mr. Burmaster's claims of unlawful imprisonment because he was not convicted of any offense against the United States, nor has he provided a certificate as proof of his innocence of the crimes for which he was indicted. See 28 U.S.C. $ 2513(a)-(b). Because the provision of such a certihcate is a prerequisite to establishing a cause ofaction, failure to provide it warrants

dismissal, whether for lack ofjurisdiction, Grayson,141 Ct. Cl. at 869, or for failure to state a claim, Bobka v. [Jnited States,133 Fed. Cl. 405, 409-10 (2017); Sykes,l05 Fed. Cl. at234.2

Mr. Burmaster's remaining claim is a right to damages for denial of "that fundamental human right" of a "public trial by an impartial jury" under "the Sixth Amendment." See Compl. at 2 (intemal alterations omitted). Constitutional provisions can give rise to jurisdiction in this court when they are money mandating, 1.e., when they "explicitly [or] implicitly obligate the federal govemment to pay damages." United States v. Connolly, T 16 F.2d 882, 887 (Fed. Cir. 1983) (en banc). But "Sixth Amendment claim[s] . . . are [not] money mandating[,] . . . [and tlhus, they fall outside thejurisdiction ofth[is c]ourt." See ll'inston v. United States,465 Fed. Appx. 960,961 (Fed. Cir.2012).

In sum Mr. Burmaster has not asserted any claim that gives rise to jurisdiction in this court, and this action must be dismissed. See Thoen,765 F.2d at 1116.

CONCLUSION

For the reasons stated, the govemmenl's motion to dismiss Mr. Burmaster's complaint is GRANTED. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

2Even if this court jurisdiction over Mr. Burmaster's claim of unlawful had imprisonment, damages under the statute are capped, at most, at "$100,000 for each 12-month period of incarceration." See 28 U.S.C. g 2513(e).