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                                            No. l6-89C                           FILED
                                    (Filed: February 19, 2016)
                                    NOT FOR PUBLICATION                         FEB l9 2e$
                                                                               U.S. COURT OF
                                                                              FEDERAL CLAIMS
 ROBERT J. MERCER. JR..

                        Plaintifl
                                                      Pro Se; Sua Sponte Dismissal; Lack       of
                                                      Subiect Matter Jurisdiction

 THE I.JNITED STATES,

                        Defendant.


                                    ORDER OF DISMISSAL

        The court is in receipt of the complaint filed on January 15,2016 by pro se
plaintiff Robert J. Mercer, Jr., who is incarcerated at Coleman Federal Correctional
Institution in Coleman, Florida. Mr. Mercer asks this court to vacate his crirninal
sentence on the grounds that the United States Disftict Court for Middle District of
Florida ("the district court") was not an Article III court and therefore lacked jurisdiction
to sentence him. Mr. Mercer also seeks relief based on an alleged violation of his Fifth
Amendment right to due process in comection with his criminal defense attomey's
failure to raise this jurisdictional issue. In support of these claims, Mr. Mercer provides
(l) an order from the district court dated April 30,2015 finding that the district court
lacked jurisdiction to modifu his sentence other than as permitted by statute and the
Federal Rules of Criminai Procedure; and (2) an order from the district court dated
September 30, 2015 finding that the district court lacked jurisdiction to extend the one-
year statutory deadline for filing a motion to vacate his sentence pursuant to 28 U.S.C.
$ 2255 under the circumstances.l Mr. Mercer asserts that this court may hear his case
because this court has iurisdiction over constitutional issues.



I Mr. Mercer contrasts his case to United States v. Canel, in which the United States Court of
Appeals lbr the Third Circuit upheld judgments against defendants who were convicted before
the District Court of the Virgin Islands on the grounds that "Congress has Article I legislatrve
authority to select courts having limited tenure for the territories over which the United States
maintains sovereignty." 708 F.2d 894,896 (3d Cir. 1983) (citing American Insurance Co. v.
        Plaintiffs have the burden ofestablishing the court's subject matter jurisdiction by
 a preponderance ofthe evidence. See. e.g., Estes Express Lines v. United States, 

, 692 (Fed. Cir.2014) (citing Reynolds v. Army & Air Force Exch. Serv., 846
 F.2d746,748(Fed.Cir. 1988)). Althoughproseplaintiffsareheldtolessstringent
 pleading standards, they must still demonstrate that the court has jurisdiction to hear their
 claim. See Matthews v. United States, 750 F.3d 1320,1322 (Fed. Cir. 2014) (citation
 omitted). Under Rule 12(hX3) of the Rules of the Court of Federal Claims, the court
must dismiss an action "[i]f the court determines at any time that it lacks subject-matter
jurisdiction."

        The court finds that it lacks jurisdiction over Mr. Mercer's complaint for two
reasons. First, this court "lacks jurisdiction to consider claims which amount to collateral
attacks on criminal convictions." Judd v. United States, No. I 5-5 86C, 20 I 

, at * I (Fed. Cl. Oct. 30, 2015) (quoting Beadles v. United States, 1 15 Fed. Cl.
242,245 (2014)). This court also "has no jurisdiction to review the merits ofa decision
rendered by a federal district court." Shinnecock Indian Nation v. United States, 

, 1352 (Fed. Cir. 2015) (citations omitted). Mr. Mercer expressly asks this
court to review the actions of the district court and consider the validity of his criminal
conviction. The court does not have jurisdiction to hear these claims.2

         Second, the Tucker Act grants this court j urisdiction over claims against the
government that are founded on the Constitution, laws, treaties, or contracts ofthe United
States. 28 U.S.C. $ la91(a)(l). However, the Tucker Act does not create substantive
rights; it only waives sovereign immunity for claims premised on other sources of law,
such as statutes or contracts, that "can fairly be interpreted as mandating compensation by
the Federal Govemment for the damages sustained." Jan's Helicopter Serv.. Inc. v. FAA,

, 1306 (Fed. Cir. 2008) (quoting United States v. Mitchell ,463 U.5.206,
216- 17 (1983). The United States Court ofAppeals for the Federal Circuit has found
that "[t]he law is well settled that the Due Process clauses of both the Fifth and
Fourteenth Amendments do not mandate the payment of money and thus do not provide a
cause of action under the Tucker Act." Dourandish v. United States, No. 2015-5091,

, at *5 (Fed. Cir. Oct. 20,2015) (citing Smith v. United States, 

, 1116 (Fed. Cir. 2013)). Therefore, the court lacks jurisdiction to hear
Mr. Mercer's due orocess claim.3



Canter,26 U.S. (1 Pet.) 511 (1828). Because the court lacks jurisdiction, it does not reach the
merits of Mr. Mercer's complaint.
2
  This court is also without power to entertain a petition for a writ of habeas corpus. See Ledford
v. United States,297 F.3d 1378, l38l (Fed. Cir.2002).
3
    Mr. Mercer's complaint could also be read to assert a violation of his Sixth Amendment right to
assistance  ofcounsel. However, this court would similarlv lack iurisdiction over such a clarm
     Accordingly, because this court lacks jurisdiction, Mr. Mercer's complaint is
DISMISSED.4 The Clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.



                                                                     CY    ,   FIRESTONE
                                                               Senior J




because the Sixth Amendment does not obligate the United States to pay money damages. See.
9g, Smith v. United States, 

, 446 (Fed. Cir. 2002) (citing Dupre v. United
Srates,229 Ct. Cl. 706,706 (Ct. Cl. 1981).

a
  Along with the complaint, Mr, Mercer frled an affidavit which this court construes as a motion
to proceed in forma pauperis. Mr. Mercer's motion to proceed in forma pauperis is GRANTED
for the limited purpose of filing the complaint. However, Mr. Mercer may still be required to
pay the full amount of the filing fee under 28 U.S.C. $ 1915(b). In addition, the court finds that
Mr. Mercer's complaint was frivolous, making this a "strike" under 28 U.S.C. $ 1915(g)'