Judges: Lydia Kay Griggsby
Filed: Jun. 09, 2017
Latest Update: Mar. 03, 2020
Summary: ,4 Flle.'i" !!\El r;' 5 ! L; i65 B lJntW @nfte! ststps{Domt of frltrul Filed: June 9, 2017 ",Fiilf O NOT FOR PUBLICATION JUN - I 2017 U.S. COURT OF FEDERAL CLAIMS JEFFREY NATHAN SCHIRRIPA. Pro se; RCFC (12)(b)(1); Subject-Matter Plaintiff, Jurisdiction; RCFC 12(b)(6); Failure to State a Claim; Pre-Award Bid Protest; Unilateral Contract: Fifth Amendment Takings; In Forma Pauperis. THE UNITED STATES, Defendant. Jeffrey Nathan Schirripa,Kirnelon, NJ, plaintiffpro se. Lauren S. Moore, Trial Attomey,
Summary: ,4 Flle.'i" !!\El r;' 5 ! L; i65 B lJntW @nfte! ststps{Domt of frltrul Filed: June 9, 2017 ",Fiilf O NOT FOR PUBLICATION JUN - I 2017 U.S. COURT OF FEDERAL CLAIMS JEFFREY NATHAN SCHIRRIPA. Pro se; RCFC (12)(b)(1); Subject-Matter Plaintiff, Jurisdiction; RCFC 12(b)(6); Failure to State a Claim; Pre-Award Bid Protest; Unilateral Contract: Fifth Amendment Takings; In Forma Pauperis. THE UNITED STATES, Defendant. Jeffrey Nathan Schirripa,Kirnelon, NJ, plaintiffpro se. Lauren S. Moore, Trial Attomey, ..
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U.S. COURT OF
FEDERAL CLAIMS
JEFFREY NATHAN SCHIRRIPA.
Pro se; RCFC (12)(b)(1); Subject-Matter
Plaintiff, Jurisdiction; RCFC 12(b)(6); Failure to
State a Claim; Pre-Award Bid Protest;
Unilateral Contract: Fifth Amendment
Takings; In Forma Pauperis.
THE UNITED STATES,
Defendant.
Jeffrey Nathan Schirripa,Kirnelon, NJ, plaintiffpro se.
Lauren S. Moore, Trial Attomey, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman,,./r., Director, Chad A. Readler, Acting Assistant Attomey General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judee
I. INTRODUCTION
Plaintiff, Jeffrey N. Schinipa, brings this action alleging pre-award bid protest, breach of
contract and takings claims against the united states, seeking to, among other things, enjoin the
govemment from enforcing the Controlled Substances Act in regards to cannabinoids and fiom
pursuing criminal charges against plaintiff . See generally Am. Compl. The govemment has
moved to dismiss this action for lack of subject-matter jurisdiction and for failue to state a claim
upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(bX6) of the Rules ofthe
united states court of Federal claims C'RCFC). see generally Def. Mot. In addition, plaintiff
has filed motions to proceed informa pauperls; for confidential altemative dispute resolution
proceedings; for a more definite statement; forjoinder ofparty; for a preliminary injunction;
pleading special matters; for leave to file a motion for judgment on the pleadings; for entry of
default; and for default judgment. For the reasons discussed below, the Court GRANTS the
?El,b 301,0 0tlEE q308 355h
government's motion to dismiss; GRANTS plaintiff s motion to proceed informa pauperis; and
DENIES as moot plaintiff s remaining motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Backgroundr
Plaintiffpro se, Jeffrey Schinipa, commenced this action on December 14,2016. See
generally Am. Compl. Plaintiff s amended complaint is difficult to follow. But, it appears that
plaintiffseeks certain monetary, declaratory and other injunctive reliefin connection with the
govemment's enforcement of the Controlled Substance Act, 2l U.S.C. $ 881(a), with respect to
cannabinoids. Id. at Prayer for Relief.
Specifically, plaintiff alleges that, on January 21,2015, he mailed a sample of
cannabinoids to the United States Department ofJustice and the United States District Court for
the District of New Jersey. Id. at3. Plaintiff also refers to U.S. Patent No. 6630507 inthe
amended complaint-a patent issued to Aidan Hampson, Julius Axelrod and Maurizio Grimaldi
penaining to the use of cannabinoids as antioxidants and neuroprotectants.
Id. at2.
cannabinoids are found in the plant species cannabis sativa, or marijuana, which is a schedule
one controlled substance under the Controlled Substances Act. 21 U.S.C. g St2(c).
On February 18,2015, the goverffnent confirmed receipt of plaintiff s sample and the
Department of Justice informed plaintiff that mailing the sample could be construed as a
violation of21 U.S.c. g 8aa(a), which pertains to the possession ofa controlled substance,
andior 18 u.s.c. $ 1716, which prohibits knowingly mailing an item defined as nonmailable by
the statute. Am. compl. at 3. Plaintiff alleges that, by acknowledging the medicinal use of
cannabinoids in granting U.S. Patent No. 6630507 , the govemment's classification of
cannabinoids as a schedule one controlled substance is unconstitution al. Id. at2,4.
Plaintiff alleges in the amended complaint that he is bringing a pre-award bid protest
claim against the govemment, because "defendant failed to perform the obligatory duty of
' The facts recited herein are taken from the amended complaint ("Am. compl."); the govemment's
renewed motion to dismiss ("Def. Mot."); and plainti{Ps response thereto (,'pl. opp."). unl€ss otherwlse
stated herein, the facts are undisputed.
procuring (capturing) plaintiff s property as required by 50 U.S.C.A. g 212." Id. at 6.2 Plaintiff
also alleges that he has entered into a unilateral contract with the government, by sending his
sample ofcannabinoids to the government and the distdct court. Pl. Opp. at2. In addition,
plaintiff alleges that the govemment's potential enforcement ofthe Controlled Substances Act
with respect to the sample of cannabinoids that he sent to the govemment and the district court
constitutes a regulatory takings in violation of the Fifth Amendment of the United States
Constitution. Am. Compl. at 4.
B. Procedural History
On August 26,2016, plaintiff filed the complaint in this matter. See generally Compl.
On August 26,2016, plaintiff filed a motion for leave to proceed informa pauperis. See
generally Pl. Mot. to Proceed In Forma Pauperis.
On September 19,2016, plaintiff filed a motion for a confidential altemative dispute
resolution. see generally Pl. Mot. for confidential Altemative Disp. Resol. on october 3, 2016,
the govemment filed a response and opposition to plaintiff s motion for confidential altematrve
resolution. see generally Def. Resp. on october 13,2016,plaintiff filed a reply in support of
his motion for a confidential altemative dispute resolution. See generally pl. Reply.
On October 24,2016, the govemment filed a motion to dismiss plaintiff s complaint for
lack of subj ect-matter jurisdiction and failure to state a claim upon which reliefcan be granted,
pursuant to RCFC l2(bXl) and 12(b)(6). see generally Def. Initial Mot. on November 4,2016,
plaintiff filed a motion for a more definite statement. see generally pL Mot. for a More Definite
Statement. On November 8, 2016, the Court held plaintiff s motions for confidential altemative
'Title 50, United States Code, section 212 provides, in relevant part, that:
Whenever during any insurrection against the Government of the United States . . . , any
person, or his agent, aftomey, or employee, purchases or acquires, sells or gives, any
property ofwhatsoever kind or description, with intent to use or employ the same, or suffers
the same to be used or employed in aiding, abetting, or promoting such insu*ection or
.
resistance to the laws . . all such property shall be lawful subject of prize and capture
wherever found; and it shall be the duty of the president to cause the same to be seized.
confiscated, and condemned.
50 U.S.C.A. $ 212 (West 2017).
dispute resolution and for a more definite statement in abeyance, pending the resolution of
defendant's motion to dismiss. ,See Abeyance Order, November 8, 2016.
On December 14,2016, plaintiff filed an amended complaint. See generally Am. Compl.
On December 27, 2016, piaintiff filed an initial response and opposition to the govemment's
motion to dismiss. See generally PL Initial Resp. On January 17,2017 , plaintiff filed a motion
forjoinder ofparty. See generally Pl. Mot. for Joinder. On January 30,2017, plaintiff fileda
motion for a preliminary injunction. See generally Pl. Mot. for Prelim. Inj. On January 31,
2017, the Court held plaintiff s motions in abeyance pending resolution of the govemment's
motion to dismiss. See Abeyance Order, January 31,2017 .
On February 2,2017, the govemment filed a motion to dismiss plaintiff s amended
complaint and a response to plaintiff s motion for joinder. See generally Def. Mot. On March
13,2017, plaintiff filed a response and opposition to the government's renewed motion to
dismiss. See generally Pl. Opp. On March 27,2017, the govemment filed areply in support of
its renewed motion to dismiss the amended complaint. See generally Def. Reply.
On February 14,2017 , plaintiff filed a motion pleading special matlers. See generally pl.
Mot. Pleading Special Matters. On April 10,2017, plaintiff filed a prayer for leave to file a
motion for judgment on the pleadings. See generallyPL Mot. for Leave to File Mot. for
Judgment on the Pleadings. On May 5,2017, plaintiff filed a motion for entry of default. See
generally PL Mot. for Entry of Default. Also on May 5,2017, plaintiff filed a motion for default
judgment. See generally Pl. Mot. for Default Judgment.
The govemment's renewed motion to dismiss having been fully briefed, the Court
resolves this pending motion.
III, LEGALSTANDARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matterpro se, without the benefit ofcounsel. And so,
plaintiff is "not expected to frame issues with the precision of a common law pleadin g." Roche
v. U.S. Postal Serv,,828F.2d 1555, 1558(Fed.Cir. 1987). When determining whether a
complaint filed by a pro se plaintiff is sufficient to survive a motion to dismiss, this Court affords
more leeway under the rules topro se plaintiffs than to plaintiffs who are represented by counsel.
See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se complaints, "however
inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by
lawyers"); Matthews v. United States,750 F.3d 1320,1322 (Fed. Cir.2014). Bur, while rhe
court applies the pleading requirements leniently, there "'is no duty on the part of the trial court
to create a claim which [the plaintiffl has not spelled out in his [or her] pleading ."' Lengen v.
United States, 100 Fed. Cl. 317 , 328 (201 1) (citations omitted) (first set of brackets existing).
In addition, although "apro se plaintiffis held to a less stringent standard than that ofa
plaintiff represented by an attomey, . . . the pro se plaintiff, nevertheless, bears the burden of
establishingtheCourt'sjurisdictionbyapreponderanceoftheevidence...." Riles v. united
States,93 Fed. Cl. 163, 165 (2010) (citations omitted). Given rhis, the Court may excuse
ambiguities in the plaintilf s complaint, but the Court does not excuse the complaint's failures.
See Henke v. United Stotes,60 F.3d 795, 799 (Fed. Cir. 1995); see also Demes v. United States,
52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere
formalities does not relieve them ofjurisdictional requirements.") (citation omitted).
B. Jurisdiction And RCFC 12(bxl)
When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(bXl), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant's fayor. Ericl<.son v. Pardus,551U.S.89,94(2007);see also RCFC 12(b)(l). But,
plaintiff bears the burden ofestablishing subject-matter jurisdiction, and plaintiff must do so by a
preponderance ofthe evidence. Reynolds v. Army & Air Force Exch.\erv.,846F.2d746,749
(Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject-
matter, it must dismiss the claim." Matthews y. United Stdtes, 72 Fed. C\.274,2i8 (2006)
(citations omitted); see also RCFC l2(hX3).
In this regard, the United States Court ofFederal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute . . . .,' Kokkonen v.
Guardian Life Ins. Co. ofAm.,511 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:
[A]ny claim against the United States founded either upon the Constitution, or any
Act ofCongress or any regulation ofan 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(aXl) (2011). The Tucker Act, however, is a 'Jurisdictional statute; it does not
create any substantive right enforceable against the ljnited States for money damages . . . . [T]he
Act merely confers jurisdiction upon lthe United States Court of Federal Claims] whenever the
substantive right exists." United States v. Testan,424U.5.392,398 (1976) (citation omitted).
And so, to pursue a claim against the United States under the Tucker Act, a plaintiff must
identify and plead a money-mandating constitutional provision, statute or regulation; an express
or implied contract with the United States; or an illegal exaction ofmoney by the United States.
Cabral v. United States,3lT F. App'x 979,981 (Fed. Cir. 2008) (citing Ftsher v. United States,
402 F .3d 1167 , 1172 (Fed. Cir. 2005)); Norman v. [Jnited States, 429 F .3d, 1081, 1095 (Fed. Cir.
2005). "[A] statute or regulation is money-mandating for jurisdictional purposes if it 'can fairly
be interpreted as mandating compensation for damages sustained as a result ofthe breach ofthe
duties [it] impose[s]."' Fisher,402 F.3d at 1173 (quoting (tnited States v. Mitchell,463 U.S.
206,217 (1983)) (brackets in original).
c. RcFc r2@x6)
When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted pursuant to RCFC 12(bX6), this Court must also assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant's
favor. see Ericlcon,55 1 u.s. at 94. In order to survive a motion to dismiss under RCFC
l2(bX6), a complaint must contain facts suflicient to "state a claim to reliefthat is plausible on
its face." Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (2007); see also Ashcrofi v. Iqbat,556
U.S. 662, 678 (2009). When the complaint fails to "state a claim to relief that is plausible on its
face," the court must dismiss the complaint. Iqbal,556 U.S. at 678 (citation omitted). on the
other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their
veracity," and determine whether it is plausible, based upon these facts, to find against the
defendant. Id. at 663-64,678-79 ("A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is tiable for the
misconduct alleged.").
D. Bid Protests
The Tucker Act grants this Court jurisdiction over bid protests brought by "an interested
party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract
or to a proposed award or the award ofa contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed procurement." 28 U.S.C. $ 1491(bX1). To have
standing to pursue a bid protest action, a protestor must be an "interested party." Id. And so, if
the Court determines that a protestor is not an interested party, the Court must dismiss the case.
Rex Servs. Corp. v. United States,448F,3d 1305, 1308 (Fed. Cir. 2006); see RCFC 12(b)(1).
The United States Court ofAppeals for the Federal Circuit has applied the Competition in
Contracting Act's ("CICA") definition of the term "interested party" in bid protest matters. lm.
Fed. ofGov. Employees, AFL-CIO v. United States,258 F.3d 1294, 1302 (Fed. Cir. 2001); see
a/so 31 U.S.C. g 3551 (2009); CGI Federal Inc. v. IlnitedStates,779F.3d1346,t34g (Fed. Cir.
2015). In this regard, GICA defines the term "interested party" to mean an "actual or prospective
bidder or offeror whose direct economic interest would be affected by the award of the contract
or by failure to award the contract." 3i u.s.c. $ 3551(2). The Federal circuit has held that,,,[a]
protest will, by its nature, dictate the necessary factors for a'direct economic interest."' .Sys.
App. &Techs., Inc.v. United States, 691 F.3d1374,1382(Fed. Cir.2012); Llteeks Marine, Inc.
v. United States,575 F.3d 1352, 136l-62 (Fed. Cir. 2009); see also Nat'l Air Cargo Grp., Inc. v.
united states, I 26 Fed. cl. 281 , 292 (20 I 6). To that end, the Federal circuit has also adopted
two tests to determine whether a protestor has a direct economic interest. In posraward bid
protests, a protestor must prove a substantial chance of winning the contract, to have a direct
economic interest that would be affected by the award ofthe contract. see orion Tech., Inc. v.
united states,704 F .3d 1344, 1348 (Fed. cir. 2013) (citing Rex servs. corp.,448 F.3d at 1307).
In pre-award bid protests, the protestor must show "a non-trivial competitive injury which can be
redressed byjudicial relief," to demonstrate a direct economic interest that would be affected by
the award of the contract. See llteelAboo, 86 Fed. Cl. at 626-27 . To establish the
existence ofeither an express or implied-in-fact contract with the United States, a plaintiff must
show: (l) mutuality ofintent; (2) consideration; (3) lack of ambiguity in the offer and
acceptance; and (4) actual authority to bind the government in contract on the part of the
govemment official whose conduct is relied upon. Kam-Almaz v. (Jnited States,682 F.3d 1364.
1368 (Fed. Cir.2012). A plaintiffmust also support a claim with well-pleaded allegations going
to each element ofa contract. See Crewzers Fire Crew Transp. Inc. v. United States,741 F.3d
1380, 1382 (Fed. Cir. 2014) (holding that to invoke the jurisdiction of this Court under the
Tucker Act, a plaintiff must present a well-pleaded allegation that its claims arose out of a valid
contract with the United States); see a/so RCFC 9(k) ("ln pleading a claim founded on a contracr
or treaty, a party must identif, the substantive provisions ofthe contract or treaty on which the
party relies.").
F. Fifth Amendment Takings
Lastly, this court also has exclusive jurisdiction to consider Fifth Amendment takings
claims in excess of$10,000. 28 u.s.c. $ l49l(a); see also Acceptance Ins. cos. Inc. v. Ilnited
States,503 F.3d 1328, 1336(Fed. Cir.2007). TheTakingsClauseoftheFifthAmendment
guarantees just compensation whenever private property is "taken" for public use. U.S, const.
amend. v. And so, to have a cause of action for a Fifth Amendment takings, a plaintiff must
point to a protectable property interest that is asserted to be the subject ofthe takings. see
Phillips v. llash. Legal Found.,524 u.s. 156, 164 (199s) ("Because the constitution protects
rather than creates property interests, the existence ofa property interest is determined by
reference to 'existing rules or understandings that stem from an independent source such as state
law."') (quoting Bd. of Regents of State Colleges v. Roth,408 U.S. 564,577 (1972)).
while takings claims fall within the jurisdiction of the court, a takings can only occur
"when the underlying govemmental action is valid and authorized." Iitagstaffv. united states,
105 Fed. cl. 99, 110 (2012); see also Eversleighv. united states,24 cL.ct.357,359 (1991) C.A
taking claim may only be based on the Government's rightful exercise of its property, contract,
or regulatory powers.") (citation omitted). And so, to establish a cognizable takings claim, a
plaintiff must concede the validity of the govemment's action in order to proceed. Tabb Lakes,
Ltd. v. united states, 10 F.3d 796, 8O2 (Fcd. Cir. 1993).
The courts have traditionally divided their analysis of Fifth Amendment takings into two
categories regulatory takings and physical takings. The Federal Circuit has recognized that
"[g]ovemment action that does not directly appropriate or invade, physically destroy, or oust an
owner from property but is overly burdensome may be a regulatory taking." I & D Auto Sales,
Inc. v. United States,748 F.3d 1142, 1151(Fed. Cir.2014). In assessing whether a regulatory
takings has occurred, courts generally employ the balancing test set forth in Penn Central,
weighing the character ofthe govemment action, the economic impact ofthat action and the
reasonableness of the property owner's investment-backed expectations. Penn Central Trqnsp.
Co. v. City of New York,438 U.S. 104, 124-25 (1978). "The general rule ar least is that while
property may be regulated to a certain extent, ifregulation goes too far it will be recognized as a
taking." Penn. Coal Co. v. Mahon,260 U.S. 393,415 (1922); see also Lingle v. Chevron U.S.A.
lnc.,544 U.S. 528, 537 (2005) (holding a regulation is a takings if it is "so onerous that its effect
is tantamount to a direct appropriation or ouster").
In contrast, physical or per se takings occur when the govemment's action amounts to ,,a
permanent physical occupation" or invasion ofthe property. .Loretto v. Teleprompter
ManhattanCATVCorp.,458 u.s. 419,434-35 (1982). when an ormer has suffered a physical
invasion of his property, the united states Supreme court has noted that "no matter how minute
the intrusion, and no matter how weighty the public purpose behind it, we have required
compensation." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, l0l5 (1992). The
distinction between a physical invasion and a govemmental activity that merely impairs the use
of that property tums on whether the intrusion is "so immediate and direct as to subtract fiom the
owner's full enjoyment of the property and to limit his exploitation of ir." united states v.
Causby,
328 U.S. 256, 265 (1946).
IV, LEGALANALYSIS
The govemment moves to dismiss this action upon two grounds. see generally Def . Mot.
First, the government argues that the court should dismiss this matter pursuant to RCFC 12(bXi)
for lack of subject-matter jurisdiction, because plaintiff fails to identify a money-mandating
source of law under which the Court may exercise jurisdiction. Id. at 3-5. Second, the
govemment also moves to dismiss this matter pursuant to RCFC l2(b)(6) for failure to state a
claim upon which relief may be granted, because plaintiff fails to specify any facts which would
entitle plaintiff to relief.
Id. at 5-6. For the reasons set forth below, the Court agrees that
plaintiff fails to identifr a money-mandating source of law to support his bid protest and breach
of contract claims and that plaintiff fails to state a plausible takings claim in the amended
complaint. And so, the Court GRANTS the government's motion to dismiss. In addition, the
Court GRANTS plaintiff s motion to proceed informa pauperis and DENIES as moot
plaintiffs remaining motions, for confidential altemative dispute resolution proceedings; for a
more definite statement; forjoinder of party; for a preliminary injunction; for pleading special
matters; for leave to file a motion forjudgment on the pleadings, for entry of default; and for
default judgment.
A. Plaintiff Fails To Identifu A Money-Mandating Provision Of Law
l. Plaintiff Lacks Standing To Bring His Bid Protest Claim
As an initial matter, the Court must dismiss plaintiff s purported bid protest claim for
lack of subjeclmatter jurisdiction, because plaintiff lacks standing to bring a bid protest action.
A plain reading of the amended complaint shows that plaintiff is not an "interested pa(y" with
standing bring a bid protest claim. It is well-established that the Tucker Act grants this Court
jurisdiction to consider bid protest claims brought by "an interested party objecting to a
solicitation by a federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement." 28 U.S.C. $ la91(bX1); see also Rex Servs.
Corp.,448 F.3dat 1308. And so, to be an "interested party" with standing to bring a bid protest
claim in this case, plaintiff must establish that he is an "actual or prospective bidder or offeror
whose direct economic interest would be affected by the award ofthe contract or failure to award
the contract." 31 U.S.C. S 3551(2).
Plaintiff alleges no facts in the amended complaint to show that he is an actual or
prospective bidder who is objecting to a solicitation by a federal agency. See generally Am.
compl. Rather, plaintiff alleges in the amended complaint that, on January 21,2015, he mailed a
10
sample of camabinoids to the United States Department of Justice and to the United States
District Court for the District ofNew Jersey, and that the government failed to perform the
obligatory duty ofprocuring, or capturing, plaintif?s property, as required by 50 U.S.C.A. $ 212.
Id. at 6-7 . Because plaintiff fails to demonstrate that he is an "interested party" with respect to a
govemment procurement, plaintiff lacks standing to bring his bid protest claim. And so, the
Court must dismiss this claim pursuant to RCFC l2(b)( I ).1
2. The Court May Not Consider Plaintiff s Breach Of Contract Claim
The Cou( similarly does not possess jurisdiction to consider plaintiffs breach ofcontract
claim, because plaintiffhas not demonsfiated that he has entered into a valid contract with the
govemment. It is well-established that the Court possesses jurisdiction to consider claims based
"upon any express or implied contract with the United States" under the Tucker Act. 28 U.S.C.
$ la9l(a)(1). But, the Court may not consider plaintiffs breach of contract claim, unless
plaintiff shows that he has entered into a valid contract with the United States. Kam-Alnaz,682
F.3d at 1368 (holding that to establish the existence ofeither an express or implied-in-fact
contact with the United states, a plaintiff must show: (1) mutuality of intenu (2) consideration;
(3) lack of ambiguity in the offer and acoeptance; and (4) actual authority to bind the government
in contract on the part of the govemment official whose conduct is relied upon).
The Federal Circuit has also held that "the essence of a unilateral contract is that one
party's promise is conditional upon the other party's performance of certain acts and when the
other party performs, the first party is bound." Wells Fargo Bankv. UnitedStales,88 F.3d l0l2,
1019 (Fed. cir. 1996) (citations omitted). And so, to establish rhe existence ofa unilateral
contract with the govemment here, plaintiff must show-with well-pleaded factual
allegations-that he has performed certain acts based upon a promise of some kind by the
govemment. Id.; see Crewzers Fire Crew Transp. Inc.,741F.3d at 1382 (holding that to invoke
the jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded
allegation that its claims arose out of a valid contract with the United States)i see also RCFC
3
The Court also does not possesses jurisdiction to consider plaintiff s related requests for declaratory and
injunctive relief.
11
9(k) ("In pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions ofthe contract or treaty on which the party relies.").
Plaintilffails to establish the existence ofan implied unilateral contract with the
government. ln this case, plaintiff alleges that he has entered into a valid unilateral contact with
the government by depositing a sample of cannabinoids with the United States District Court for
the District of New Jersey. Pl.Opp.at2. Plaintiffalso relies upon Lucas v. United States, in
which the United States Court of Claims held that a unilateral contract with the govemment
existed where participants in a govemment-sponsored competition were required to submit
entries in retum for a promise to be considered for an award ofa prize.a Pl. Opp. at 2 (citing
Lucasv. United States,25 Cl. Ct.298,304 (1992)). But, Lucas is unlike this case, because
plaintiffdoes not allege any facts in the amended complaint to support--or even suggest-that he
has acted in response to a promise from the govemment. See generally Am. Compl.; pl. Opp.
Plaintifls argument that a unilateral contract with the government can be implied based
upon his decision to deposit a sample ofcannabinoids with the district court is also misguided.
Pl. Opp. at2. Even if the Court accepts the factual allegations in the amended complaint as true,
plaintiffpoints to no promise upon the part ofthe govemment that was conditioned upon
plaintifPs act of depositing these cannabinoids. See generally Am. Compl.; pl. Opp. Absent
such a promise from the government, no unilateral contract can exist. Wells Fargo Bank, Bg
F.3d at 1019. And so, the court must dismiss plaintiffs breach of contract claim for lack of
subject-matter jurisdiction. RCFC 12(bX1).
B. Plaintiff Fails To Allege A Plausible Takings Claim
The Court must also dismiss plaintiff s takings claim, because plaintiff does not allege
that the government action at issue is valid and authorized. While the Court generally possesses
jurisdiction to consider takings claims, the court must dismiss plaintif|s takings claim here,
becauseplaintiff fails to state a plausible takings claim in the amended complaint. see Am.
compl. This court has long recognized that a takings can only result "when the underlying
govemmental action is valid and authorized." I(agstffi 105 Fed. cl. at 110. In addition, the
' Specifically in Lucas, the Court of Claims held that a unilateral contract with the govemment was
creat€d when the plaintiff submitted a design in response to a govemment-sponsored competition for the
.
design of a war memorial and won a prize of 920,000 Lucas,25 Cl. Ct. at 301.
t2
Federal Circuit has held that a plaintiff must concede the validity of the govemment's actlon ln
order to proceed with a takings claim. Tabb Lakes, Ltd.,10 F.3d at 802. But, even ifthe Court
accepts as true plaintiffs allegation that he is the owner ofproperty that has been taken by the
government, plaintiffdoes not allege that the govemment's action was la*ful in the amended
complaint. Am. Compl. at 4. Rather, plaintiff alleges in the amended complaint that the
government's "unconslitutional and prejudicial classification . . . has consequently enable[ed]
the controlled Substance [sic] Act (21 u.s.c. g 881(a)) to prohibit and affirmatively forfeit all
property rights secured in U.S. Patent No. 6630507." /d (emphasis supplied). And so, the
Court must dismiss plaintiff s takings claim for failure to state a claim upon which relief may be
granted. RCFC l2(b)(6).
A careful reading ofthe amended complaint also shows that plaintiff actually seeks to
challenge the classification ofcannabinoids as a schedule one controlled substance under the
controlled Substances Act in this case. Id. at 2. As the govemment correctly observes in its
motion to dismiss, the United States district courts possess exclusive jurisdiction to consider
claims related to the controlled substances Act. Def. Mot. at 5; vereda, Ltda. v. united states,
271 F .3d 1367 , 137 5 (Fed. cir. 2001)). And so, to the extenr that plaintiff seeks to bring a claim
under the controlled Substances Act here, the court must dismiss this claim. RCFC l2(bX1).s
C, The Court Grant's Plaintiff s Motion To proceed Iz Forma pauperis
The court will, however, grant plaintiff s motion seeking a waiver of the court's filing
fee. on August 26,2016, plaintiff filed a motion for leave to proceed
forma pauperis upon
in
the ground that he lacks sufficient resources to pay the court's filing fee. see generally pl. Mot.
to Proceed 1n Forma Pauperis. This court may authorize commencement of a suit without
prepayment of fees when a person submits an affidavit including a statement of all assets such
person possesses, a declaration that he or she is unable to pay the fees, and a statement ofthe
nature ofthe action and a beliefthat he or she is entitled to redress. ,See 28 u.s.c. $ l9l5(a)(l)
(I 996). Due to the court's summary disposition of this case, and plaintiff s pro se status, the
5
Plaintiff previously brought these same claims in the United States District Court for the District of New
Jersey, which dismissed the claims pursuant to Federal Rules of civil procedure l2(b)(1) and l2(b)(6).
See Am. Compl. Ex. A. And so, a transfer ofthis case to the district court would not be in the interest of
justice. 28 U.S.C. $ l63l (1982).
IJ
Court finds that plaintiff satisfies the statutory requirements to proceed in forma pauperis for the
purpose of resolving the government's renewed motion to dismiss. And so, the Court grants
plaintiff s motion to proceed in forma pauperis.
D. The Court Must Deny Plaintiffs Remaining Motions As Moot
As a final matter, plaintiff has frled several other motions in this matter. Specifically, on
September 19,2016, plaintiff filed a motion for confidential alternative dispute resolution. ,See
generally Pl. Mot. for Confidential Altemative Disp. Resol. Plaintiff filed a motion for a more
definite statement on November 4,2016. see generally PL Mot. for a More Definite Statement.
In addition, plaintiff filed a motion for joinder of party on January 17 ,2017 and a motion for
preliminary injunction on January 30,2017. See generally PL Mot. for Joinder; Pl. Mot. for
Prelim. Inj. On February 14,2017, plaintiff filed a motion for pleading special matters. ,See
generally Pl. Mot. Pleading Special Matters. on April 10,2017 , plaintiff also filed a motion for
leave to file a motion for judgment on the pleadings. see generallyPL Mot. for Leave to File
Mot. for Judgment on the Pleadings. Lastly, on May 5,2017 plaintiff filed a motion for entry of
default and a motion for default judgment. see genefa//y Pl. Mot. for Entry of Default; pl. Mot.
For Default Judgment.
Because the Court has determined that it does not possess subject-matter jurisdiction to
consider plaintiffs bid protest and breach ofcontract claims, and that plaintifffails to stare a
plausible takings claims, the court dismisses plaintiff s motions as moot. see, e.g., Ll/ojtczak v.
UnitedStates, No. 12-449C,2012WL4903025,at*4 (Fed. Cl. Oct. 17,2012) (,,Because. . .
plaintiff still has not raised allegations over which this court has jurisdiction, the court denies
these motions as moot.").
V. CONCLUSION
In sum, a plain reading ofthe amended complaint shows that this Court does not possess
subject-matter jurisdiction to consider plaintiff s bid protest and breach of contract claims. In
addition, the Court may not entertain plaintifPs takings claim, because plaintiff fails to state a
plausible takings claim in the amended complaint. Lastly, to the extent plaintiff seeks to
challenge the classification ofcannabinoids under the Controlled Substance Act, this Court also
lacks subject-matter jurisdiction to consider this claim.
l4
And so, for the foregoing reasons, the Court:
(1) GRANTS the govemment's motion to dismiss;
(2) GRANTS plaintiffs motion to procee d in forma pauperis;
(3) DENIES as moot plaintifPs motion for confidential altemative dispute resolution
proceedings;
(4) DENIES as moot plaintifPs motion for a more definite statement;
(5) DENIES as moot plaintiff s motion for joinder of party;
(6) DENIES as moot plaintiff s motion for a preliminary injunction;
(7) DENIES as moot plaintiff s motion for pleading special matters;
(8) DENIES as moot plaintiff s motion for leave to file a motion for judgment on the
pleadings;
(9) DENIES as moot plaintifPs motion for entry of default; and
(10) DENIES as moot plaintiff s motion for default judgment.
The Clerk is directed to ENTER final judgment in favor of the govemment, and to
DISMISS the amended complaint. No costs.
IT IS SO ORDERED,
15
