ORIGINAL

3111 the fiHniteh gamma @uurt of erheral QEIaimg FILED

No. 15-162C SEP 1 0 2015
(Filed: September 10, 2015)
US. COURT OF
FEDERAL CLAIMS

DEXTER L. DAVIS, Pro Se; Rule 12(b)(1), Subject-Matter
Jurisdiction; Rule 12(b)(6), Failure to
State a Claim; Rule 56, Motion for Partial
Summary Judgment; Rule 12(0),
Judgment on the Pleadings; In F orma

Pauperis.

Plaintiff,
V.

THE UNITED STATES,

Defendant.

vvvvvvvvvvv

Dexter L. Davis, Sondheimer, LA, Plaintiff pro se.

Delisa M. Sanchez, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, and J. Carlos Alarcon, Attorney Advisor, Of Counsel, US. Department of Agriculture,
Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff pro se, Dexter L. Davis, brought this action seeking monetary damages,
discharge of relevant debts and “a tax payment” against the United States, relating to allegations
that the United States Department of Agriculture (“USDA”) engaged in race-based
discrimination when the government denied plaintiffs request for a loan subordination. The
government has moved to dismiss plaintiff’ s complaint under Rules 12(b)(1) and 12(b)(6) of the
Rules of the United States Court of Federal Claims (“RCFC”), alleging lack of subj ect-matter
jurisdiction and failure to state a claim upon which relief may be granted. Plaintiff has also filed
motions to proceed in forma pauperis, for partial summary judgment and for judgment on the
pleadings, pursuant to 28 U.S.C. § 1951(a) and RCFC 56 and 12(c). For the reasons set forth
below, the Court (1) GRANTS defendant’s motion to dismiss; (2) DENIES as moot plaintiffs

motion for partial summary judgment; (3) DENIES as moot plaintiff’s motion for judgment on

the pleadings; and (4) GRANTS plaintiff’s motion to proceed in forma pauperis.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff received several loans from the Farmers Home Administration (now the Farm
Service Agency or “FSA”) at various periods beginning in 1984. Compl. at 1. In his complaint,
plaintiff alleges that officials with the USDA and the FSA engaged in race-based discrimination
when they denied his 2010 request for loan subordination. See generally Compl. Specifically,
on December 2, 2010, plaintiff applied for loan servicing subordination with the USDA. Compl.
at 5-6; App. to Def. Mot. at 31-34, 160-64. On February 24, 2011, the USDA formally notified
plaintiff that the agency denied his request for subordination. Compl. at 8; App. to Def. Mot. at
36-39. According to plaintiff, the FSA denied the subordination request “out of racial bias and
retaliation for past complaints of discrimination; and for his participation in local resistance to

race discrimination by the Agency.” Compl. at 9.

On March 2, 2011, plaintiff appealed the subordination denial to the USDA’s National
Appeals Division. Def. Mot. at 5; App. to Def. Mot. at 141—46. In his appeal, plaintiff alleged
the USDA engaged in racial discrimination and violated the timeliness requirements of the loan
application process set out in 7 C.F.R. § 764.53(c). Id.; App. to Def. Mot. at 147. On April 19,
2011, the National Appeals Division dismissed his appeal. Def. Mot. at 5; App. to Def. Mot. at

147-50.

On November 20, 2014, plaintiff filed a complaint in the United States District Court for
the Western District of Louisiana, asserting claims against four government officials in their
individual capacities: Chris Beyerhelm, Chief Deputy Administrator of the USDA; Willie
Cooper, State Executive Director of the FSA; Brad Smith, FSA Farm Loan Chief; and Steve
Dooley, FSA local agent. Compl., Davis v. Vilsack, No. 3:14-cv-3320 (W.D. La. filed Nov. 20,

1 The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
(“Compl. at _”), the defendant’s motion to dismiss (“Def Mot. at _”), plaintiff s opposition
thereto (“PL Opp. at _”), defendant’s reply (“Def Rep. at _”), and the appendices to the
parties’ submissions (“App. to _”). Except where otherwise noted, the facts recited here are

undisputed.

Even considering plaintiff s pro se status, and thereby providing him greater leeway than
litigants represented by counsel, plaintiffs complaint fails to identify a valid contract, either
express or implied, between plaintiff and the United States. See Haines, 404 US. at 520—21.
And so, under RCFC 12(b)(6), plaintiff fails to state plausible claims for breach of contract and
breach of the implied covenant of good faith and fair dealing, and the Court must dismiss these

claims.6 RCFC 12(b)(6).

2. Plaintiff Fails To State A Plausible Trademark Claim

Plaintiffs apparent trademark infringement claim under 15 U.S.C. § 1122 is equally
flawed. Section 1122 waives the United States’ sovereign immunity from suit for violations
under Chapter 22 of Title 15 of the United States Code. 15 U.S.C. § 1122. Chapter 22 is entitled
“Trademarks” and relates solely to trademarks. See 15 U.S.C., Chapter 22. Even under a liberal
construction, plaintiffs complaint does not contain any allegations regarding trademark issues.

See generally Compl. And so, this claim must also be dismissed for failure to state a claim upon

which relief may be granted. RCFC l2(b)(6).
3. Plaintiff Fails To State A Plausible Takings Claim

Plaintiff also appears to allege a regulatory Fifth Amendment takings claim. Compl. at
19 (“Just Compensation Clause” cause of action). To the extent that he does so, the complaint

fails to state a plausible takings claim.

The Fifth Amendment of the United States Constitution provides that “private property
[shall not] be taken for public use, without just compensation.” US. Const., amend. V. Courts
have traditionally divided their analysis of Fifth Amendment takings into two categories—
regulatory takings and physical takings. Within the context of a regulatory takings, a plaintiff
must show that a statute or regulation actually effectuated the takings. Niagara Mohawk Power

Corp, v. United’ States, 

, 317 (2001).

Here, plaintiff failed to identify a statute or regulation that effectuated the takings. See
generally Compl.; Pl. Opp. at 9—1 1. Plaintiff alleges the government violated 7 C.F.R.

_ __ —,.

6 The implied covenant of good faith and fair dealing “is an implied duty that each party to a
contract owes to its contracting partner.” Centex Corp. v. United States, 

, 1304
(Fed. Cir. 2005). Because plaintiff failed to identify a valid contract between himself and the
government, this claim must also be dismissed pursuant to RCFC 12(b)(6). RCFC 12(b)(6).

11

—4_

§ 764.53(c) by failing to issue a decision within 60 days of receiving his loan application.

Compl. at 8, 10; see also P1. Mot. for Partial Summ. J. However, “‘an uncompensated taking and
an unlawful government action constitute two separate wrongs that give rise to two separate
causes of action.’” Acadia Technology, Inc. v. United States, 

, 1331 (Fed. Cir.
2006) (internal citations omitted). Because plaintiff alleges that the government violated a
regulation, rather than that a lawful statute or regulation effectuated a takings of his property, the

complaint fails to state a plausible takings claim, and the claim must be dismissed. RCFC

12(b)(6).

4. Plaintiff Fails To State Plausible Claims For Breach Of Fiduciary
Duty And Instrumentals

In addition, plaintiff fails to state a valid claim for breach of fiduciary duty and
instrumentals. Plaintiff does not explain his claims of breach of fiduciary duty and for
instrumentals in the complaint, nor does he explain these claims in his opposition to the
government’s motion to dismiss. See generally Compl.; Pl. Opp. Rather, plaintiff simply lists
these claims in the complaint without any further factual support. See generally Compl. To
survive a motion to dismiss under RCFC 12(b)(6), plaintiff’ s complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
also Iqbal, 556 U.S. at 678. Plaintiff’ s complaint simply fails to satisfy this standard. And so,
plaintiff has failed to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S at
570; RCFC 12(b)(6).

D. Plaintiff’s Motions For Relief Are Moot

Plaintiff has also filed motions for partial summary judgment and for judgment on the
pleadings, pursuant to RCFC 56 and RCFC 12(c). See generally Pl. Mot. for Partial Summ. J .;
Pl. Opp. ; RCF C 56, 12(0). Because the Court lacks jurisdiction to consider plaintiff’s claims, the
Court must deny plaintiffs motions as moot. See, e. g., Wojtczak v. United States, No. 12-449C,

, at *4 (Fed. C1. Oct. 17, 2012) (“Because plaintiff . . . has not raised

allegations over which this court has jurisdiction, the court denies these motions as moot”).

12

E. Plaintiff’s Motion For Leave To Proceed In F orma Pauperis Satisfies The
Statutory Requirement

Lastly, plaintiff meets the requirements to waive the Court’s filing fee. Plaintiff has filed
a motion to proceed in forma pauperis. In his motion, plaintiff alleges he lacks the financial

resources to pay the Court’s filing fee. See generally Pl. Mot. to Proceed In F orma Pauperz‘s.

On March 25, 2015, defendant filed a response to plaintiffs application to proceed in
forma pauperis. See generally Def. Resp. to P1. Mot. to Proceed In F orma Pauperis. Defendant
takes no position on plaintiffs motion, but defendant raises two points for the Court’s
consideration. Id. at 1-2. First, defendant points out some of plaintiffs assets, including the
$56,700 plaintiff received in income over the past twelve months and plaintiffs land, valued at
approximately $500,000. Id. at 1. Second, defendant mentions plaintiff has filed two similar

complaints in the recent past and was able to pay the requisite filing fees for those cases. Id. at 2.

This Court may authorize commencement of a suit without prepayment of fees when a
person submits an affidavit including a statement of all assets, a declaration that he or she is

unable to pay the fees, and a statement of the nature of the action and a belief that he or she is

entitled to redress. See 28 U.S.C. § 1951(a); see also 28 U.S.C. § 2503(d).

Due to the Court’s summary disposition of this case and plaintiffs pro se status, the
Court finds that plaintiff satisfies the requirements to proceed in forma pauperis for the purpose
of resolving the government’s motion to dismiss. And so, the Court grants plaintiffs motion to
proceed in forma pauperis for the limited purpose of resolving the government’s motion to

dismiss.

l3

CONCLUSION

For the foregoing reasons, the Court:

(1) GRANTS defendant’s motion to dismiss;

(2) DENIES as moot plaintiff’s motion for partial summary judgment;

(3) DENIES as moot plaintiff’s motion for judgment on the pleadings; and
(4) GRANTS plaintiffs motion to proceed in forma pauperis.

IT IS SO ORDERED.

 

l4

1i.

2014).2 On August 21, 2015, the complaint was dismissed with prejudice. Judgment, Davis, N03
3:14-cv-3320.

On February 23, 2015 , plaintiff filed a complaint in this Court. See generally Compl. In

his complaint, plaintiff alleges nine causes of action-namely:

(1) Breach of Contract;

(2) Implied Covenant of Good Faith and Fair Dealing;
(3) 15 U.S.C. § 1122;

(4) Implied in Fact;

(5) Expressed in Fact;

(6) Breach of Fiduciary Duty;

(7) Just Compensation Clause;

(8) Unjust Enrichment; and

(9) Instrumental(s).

Compl. at 19.

Plaintiff asserts different causes of action, as well as different grounds for jurisdiction, in
the two complaints. Compare Compl. at 1, 19, with Compl. at 1, 19, Davis, No. 3:14-cv-3320.
But, the two complaints contain identical factual allegations in paragraphs 3 through 75 of both
complaints and in the prayers for relief in both complaints. Compare Compl. at 111] 3-75, Prayer

for Relief, with Compl. at M 3-75, Prayer for Relief, Davis, No. 3:14—cv-3320.

B. Procedural Background

On February 23, 2015, plaintiff filed his complaint in this case. See generally Compl.
On the same date, plaintiff also filed a motion to proceed in forma pauperis. See generally Pl.
Mot. to Proceed In F orma Pauperis. On April 24, 2015, the government moved to dismiss
plaintiff‘s complaint under RCFC 12(b)(1) for lack of subject-matter jurisdiction and under
RCF C 12(b)(6) for failure to state a claim upon which relief may be granted. See generally Def.
Mot; RCFC 12(b)(l); RCF C 12(b)(6). Plaintiff filed a motion for partial summary judgment on

 

 

 

2 The complaint filed in the United States District Court for the Western District of Louisiana
also included claims against defendant Tom Vilsack, the United States Secretary of Agriculture,
in his official capacity. See generally Compl., Davis, No. 3:14-cv-3320. The district court
granted plaintiff’ s request to voluntarily dismiss those claims on February 10, 2015. See
Judgment, Davis, No. 3:14-cv-3320.

May 18, 2015, on his claim that the FSA violated 7 C.F.R. § 764.53(c). See generally Pl’s. Mot.

for Partial Summ. J.

When plaintiff failed to file a timely response to defendant’s motion to dismiss, the Court
issued an Order to Show Cause on June 5, 2015. See generally Order to Show Cause.
Defendant moved to stay the briefing of plaintiff s motion for partial summary judgment on
June 18, 2015. See generally Def. Mot. to Stay Briefing on P1. Mot. for Partial Summ. J. The
Court granted defendant’s motion to stay on June 22, 2015. See generally Order, June 22, 2015.
Plaintiff responded to the Order to Show Cause and filed a response to defendant’s motion to
dismiss on June 19, 2015. See generally Pl. Resp. to Show Cause Order; Pl. Opp. On July 9,
2015, defendant filed a reply in support of its motion to dismiss. See generally Def. Rep.

III. LEGAL STANDARDS

A. Pro Se Litigants

The Court recognizes that parties proceeding pro se are granted greater leeway than
litigants represented by counsel. See Haines v. Kerner, 

, 520-21 (1972) (holding
that pro se complaints are held to “less stringent standards than formal pleadings drafted by
lawyers”). However, “[w]hile a court should be receptive to pro se plaintiffs and assist them,
justice is ill-served when a jurist crosses the line from finder of fact to advocate.” Demes v.
United States, 

, 369 (2002). Further, “the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.”
Minehan v. United States, 

, 253 (2007). The pro se plaintiff still must establish
the Court’s jurisdiction by a preponderance of the evidence. Riles v. United States, 

, 165 (2010). And so, while the Court may excuse ambiguities in the plaintiff’s complaint,
the Court does not excuse the complaint’s failures. See Henke v. United States, 

, 799
(Fed. Cir. 1995).

B. Lack Of Subject-Matter Jurisdiction, RCFC 12(b)(1)

When deciding a motion to dismiss based upon a lack of subj ect-matter jurisdiction
pursuant to RCFC 12(b)(l), 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 favor. See

Erickson v. Pardus, 

, 94 (2007); RCFC 12(b)(1). But, plaintiff bears the burden of

establishing subject-matter jurisdiction, and must do so by a preponderance of the evidence.
Reynolds v. Army & Air Force Exch. Serv., 

, 748 (Fed. Cir. 1988). Should the
Court determine that “it lacks jurisdiction over the subject matter, it must dismiss the claim.”

Matthews v. United States, 

, 278 (2006).

The United States Court of Federal Claims is a court of limited jurisdiction and
“possess[es] only that power authorized by Constitution and statute. . . .” Kokkonen v. Guardian
Life Ins. Co. of Am, 511 US. 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 of Congress or any regulation of an 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(a)(1) (2012). The Tucker Act, however, is “a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages . . . . [T]he
Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists.” United States v. T estan, 424 US. 392, 398 (1976). To pursue a
substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute or regulation, or an express or implied

contract with the United States. Cabral v. United States, 

, 981 (Fed. Cir. 2008).

C. Failure To State A Claim, RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim pursuant to RCFC
12(b)(6), 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 favor. See Erickson, 551 US. at 94;
RCFC 12(b)(6). To survive a motion to dismiss under RCFC 12(b)(6), a complaint must contain
facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 US. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 US. 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 US. 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 on these facts, to find against the defendant. Id. at 679.

D. 28 U.S.C. § 1500

The jurisdiction of this Court is further limited by 28 U.S.C. § 1500, which states:

The United States Court of Federal Claims shall not have jurisdiction of any claim
for or in respect to which the plaintiff or his assignee has pending in any other
court any suit or process against the United States or any person who, at the time
when the cause of action alleged in such suit or process arose, was, in respect
thereto, acting or professing to act, directly or indirectly under the authority of the
United States.

28 U.S.C. § 1500 (2012). “[T]he purpose of [section] 1500 is to prevent the United States from
facing liability involving the same subject matter at the same time in separate fora.” Nextec

Applications, Inc. v. United States, 

, 538 (2014).

To determine whether section 1500 applies to two suits brought by the same plaintiff, the
Court must determine “(1) whether there is an earlier-filed ‘suit or process’ pending in another
court, and, if so, (2) whether the claims asserted in the earlier-filed case are ‘for or in respect to’
the same claim(s) asserted in the later-filed Court of Federal Claims action.” Brandt v. United
States, 

, 1374 (Fed. Cir. 2013) (citations omitted). Whether an earlier filed suit is
considered “pending” within the meaning of section 1500 “is determined at the time the
complaint is filed with the United States Court of Federal Claims.” Id at 1375. Two claims are
“for or in respect to the same claim” under section 1500 “if they are based on substantially the
same operative facts, regardless of the relief sought in each suit.” United States v. T ohono
O'Odham Nation, 

, 1731 (2011). If the Court does not have jurisdiction due to
section 1500, the Court must dismiss the case under RCFC 12(h)(3). See RCFC 12(h)(3).

IV. DISCUSSION

For the reasons discussed below, the Court grants defendant’s motion to dismiss; denies,
as moot, plaintiff’ s motions for partial summary judgment and for judgment on the pleadings;

and grants plaintiff s motion to proceed in forma pauperis.

A. The Jurisdictional Limitations Imposed By 28 U.S.C. § 1500 Bar Plaintiff’s
Claims

The Court is jurisdictionally barred from considering plaintiff‘s claims under 28 U.S.C.
§ 1500, which provides that this Court does not have jurisdiction over a claim “if the plaintiff has

another suit for or in respect to that claim pending against the United States or its agents.”

Tahono, 131 S. Ct. at 1727; 28 U.S.C. § 1500. For section 1500 purposes, whether a claim is
pending against the United States is determined at the time the complaint is filed with this Court.
Brandt, 710 F.3d at 1374. In addition, under section 1500, multiple complaints are “for or in

respect to” the same claim if they are based upon the same operative facts. Tohono, 131 S. Ct. at

1731.

Plaintiff‘s claim are jurisdictionally barred by section 1500. First, the facts of this case
show that plaintiff had an earlier-filed suit pending in another court at the time of the filing of the
complaint in this matter. Def. Mot. at 3; Pl. Opp. at 3-4. On November 20, 2014, plaintiff filed a
complaint in the United States District Court for the Western District of Louisiana. On
February 23, 2015, when this complaint was filed, the earlier-filed suit in district court was open
and active. Compl., Davis, No. 3:14-cv-3320. And so, plaintiff had another suit pending in

district court when he filed the complaint in this case.

Second, the complaints in the district court case and in this matter are “for or in respect
to” the same claim, because both complaints are based upon the same operative facts. T ohono,
131 S. Ct. at 1731. In this regard, the factual allegations in paragraphs 3 through 75 and the
prayers for relief in both complaints are identical. Compare Compl., with Compl., Davis, No.

3 : 14-cv-3320. Because the operative facts alleged here are identical to the operative facts
alleged in the complaint brought before the United States District Court for the Western District
of Louisiana, plaintiff’s complaints in these two cases are “for or in respect to” the same claim

within the meaning of section 1500. 28 U.S.C. § 1500.

Nonetheless, plaintiff argues that section 1500 does not bar his claim here, because his
district court case involves a so-called Bivens3 action against certain USDA employees and
officials. P1. Opp. at 5—6; see Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics,
403 US. 388 (1971). Plaintiff further argues that he did not have a claim “pending against the
United States or its agents” at the time that he filed the complaint in this Court, because his
district court case is a Bivens action. 28 U.S.C. § 1500 (emphasis added); Report and
Recommendation at 8, n.7, 14, Davis, No. 3:14—cv—3320 (April 7, 2015) (holding that plaintiff’s

3 “‘Under Bivens, a person may sue a federal agent for money damages when the federal agent
has allegedly violated that person’s constitutional rights.” Hernandez v. United States, 

, 272 (5th Cir. 2014) (citing Martinez-Aguero v. Gonzalez, 

, 622 n.1 (5th Cir.
2006)).

claims include several Bivens causes of action); see also Judgment, Davis, No. 3:14-cv-3320

(August 21, 2015). Plaintiffs arguments are misguided.

The fact that plaintiffs district court case involves a Bivens action against several USDA
officials does not overcome the jurisdictional limitations imposed by section 1500 in this case.
28 U.S.C. § 1500. In this regard, the jurisdictional bar imposed by section 1500 applies when a
prior pending case is brought against a “person who, at the time when the cause of action alleged
in such suit or process arose, was, in respect thereto, acting or professing to act, directly or
indirectly under the authority of the United States”. 28 U.S.C. § 1500; see also T ohono, 131 S.
Ct. at 1728 (“The CFC bar applies even where the other action is not against the Government but
instead against a ‘person who, at the time when the cause of action alleged in such suit or process
arose, was, in respect thereto, acting or professing to act, directly or indirectly under the
authority of the United States.”’). And so, the question to resolve here is not whether the United
States is a named defendant in plaintiffs district court case. But, rather, at the time when the
causes of action alleged in that case arose, were the named defendants in that case “acting or
professing to act, directly or indirectly under the authority of the United States”? Id. And so,
“[t]he operative facts of [plaintiffs] claim, rather than choice of defendants [is] dispositive” for
section 1500 purposes. See Gaubert v. United States, 

, 601 (1993) (citing Keene
Corp. v. United States, 

, 204 (1993)).

Here, a plain reading of plaintiff 5 district court complaint—and the complaint in this
matter—shows that the named defendants in plaintiffs district court case were acting or
professing to act, directly or indirectly under the authority of the United States at the time that
plaintiffs claims arose. Specifically, the district court complaint states that plaintiffs claims
against these defendants arose when the defendants were managing plaintiffs loan subordination
request on behalf of the USDA. See generally Compl., Davis, No. 3:14—cv-3320.4 Plaintiffs
district court complaint also characterizes the conduct that gave rise to his claims as the actions
of either the USDA or the FSA, further showing that plaintiff acknowledges that the defendants
named in his district court complaint were acting under the authority of the United States.

Compl. at 8-10, Davis, No. 3:14-cv-3320; see also, Compl. And so, given the factual allegations

F—i——_

 

'4 _This fact is also cbnfirngd—by the factual allegations contained in plaintiff s complaint in this
case. See generally Compl.

in plaintiff 5 district court complaint, and his complaint in this matter, there can be no genuine
dispute that plaintiff sued the defendants named in the district court complaint for action
undertaken in their roles as agents of the United States. Compl. at 5-10; Compl. at 5-10, Davis,
No. 3:14-cv-3320. Given this, section 1500 bars plaintiff’s claims here, and the Court must
dismiss his complaint for lack of jurisdiction. 28 U.S.C. § 1500; RFCF 12(h)(3).

Bf: The Court Lacks Jurisdiction Over Plaintiff’s Discrimination And Unjust
Enrichment Claims

Similarly, to the extent that plaintiff relies upon the Equal Credit Opportunity Act
(“ECOA”) or the Civil Rights Act to bring his discrimination and unjust enrichment claims, the
Court also lacks subject-matter jurisdiction over these claims. 15 U.S.C. § 1691 et seq;

28 U.S.C. § 1500; 42 U.S.C. § 1983; Frank & Breslow, LLP v. United States, 

, 68-
69 (1999); RCFC 12(b)(1). In his complaint, plaintiff appears to assert a claim for unjust
enrichment and discrimination claims under the ECOA and the Civil Rights Act. Compl. at 11;
15 U.S.C. § 1691 et seq; 42 U.S.C. § 1983. With respect to plaintiff’s unjust enrichment claim,
this Court has long recognized that “unjust enrichment is based on a contract implied in law.”
Frank & Breslow, 43 Fed. Cl. at 68 (citing Glopak Corp. v. United States, 

, 104 n.6
(1987)). It is also well-settled that this Court lacks subj ect-matter jurisdiction over implied—in-
law contracts. Id. at 68-69. And so, plaintiff’s unjust enrichment claim must be dismissed for
lack of subject-matter jurisdiction. RCFC 12(b)(1).

It is also well settled that this Court does not have subject-matter jurisdiction to consider
plaintiff’s claims brought pursuant to the ECOA and the Civil Rights Act. Hall v. United States,

, 55-6 (2005) (holding federal district courts have exclusive jurisdiction over
ECOA claims); Doe v. United States, 

, 798 (2006) (“Section 1983 jurisdiction,
however, is conferred exclusively on the United States District Courts”) (citing 28 U.S.C.
§ 1343(a)). And so, to the extent plaintiff’s claims are based upon either of these statutes, the
claims must be dismissed. RCFC 12(b)(1).

C. Plaintiff Fails To State A Valid Contract Claim

Even if plaintiff could overcome the jurisdictional limitations imposed by section 1500,

the Court must still dismiss plaintiff’s complaint, because plaintiff does not state a plausible

claim for which the Court may grant relief.5 RCFC l2(b)(6); see also Twombly, 550 US. at 570
(plaintiff fails to “state a claim to relief that is plausible on its face”). And so, for the reasons
stated below, plaintiff” s breach of contract, trademark and takings claims must be dismissed for

failure to state a claim upon which relief may be granted. RCFC 12(b)(6).

1. Plaintiff Fails To State Plausible Claims For Breach Of Contract And
Breach Of The Implied Covenant Of Good Faith And Fair Dealing

First, plaintiff fails to state a valid breach of contract claim. In his complaint, plaintiff
alleges he had “a loan and/or mortgage contract with the United States.” Compl. at 1. But,
plaintiff s complaint does not show that he had a contract with the government. See generally
Compl. Rather, the complaint mentions previous loans that plaintiff obtained from the FSA.
Compl. at 1-2. But, the complaint does not state that, or explain how, these prior loans constitute

a valid contract by and between plaintiff and the government. Compl. at 1; Pl. Opp. at 6.

“To recover for breach of contract, a party must allege and establish: (1) a valid contract
between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty,
and (4) damages caused by the breach.” San Carlos Irr. And Drainage Dist. v. United States,

, 957 (Fed. Cir. 1989). A valid contract may be either express or implied. Oswalt
v. United States, 41 F. App’x. 471, 473 (Fed. Cir. 2002) (“To establish a valid contract (express
or implied) . . . .”). An express contract requires “mutual intent to contract, including an offer,
an acceptance, and consideration.” Trauma Serv. Grp. v. United States, 

, 1325
(Fed. Cir. 1997). Plaintiff also must show the government agent had actual authority to bind the
government. Id. An implied-in-fact contract, on the other hand, must be “‘founded upon a
meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact,
from conduct of the parties showing, in the light of the surrounding circumstances, their tacit
understanding.’” Hercules Inc. v. United States, 516 US. 417, 424 (1996) (quoting Baltimore &
Ohio RR. Co. v. United States, 261 US. 592, 597 (1923)).

 

 

 

5 Along with a claim for breach of contract, plaintiff also asserts implied—in-fact and expressed-
in-fact contract claims. For purposes of this Memorandum Opinion and Order, these three
causes of action are addressed as breach of contract claims. In addition, plaintiff asserts claims
for implied covenant of good faith and fair dealing; pursuant to 15 U.S.C. § 1122; breach of
fiduciary duty; Fifth Amendment takings; and instrumentals. See generally Compl.

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