Judges: Lydia Kay Griggsby
Filed: Nov. 23, 2015
Latest Update: Mar. 02, 2020
Summary: 0R!$[$\$At lJr tllt @nitoD $ltstes @ourt of fe[trul @luimg No. l5-549C (Filed November 23, 2015) FILED Nov 2 3 2015 OLANAPO AD OLAJIDE, U.S. COURT OF FEDERAL CLAIMS Plaintiff, Pro Se; RCFC 12(bX1), Subject-Matter Jurisdiction; RCFC 12(b)(6), Failure to State a Claim; Implied-in-Fact Contract; Fifth Amendment Takines. THE I.INITED STATES, Defbndant. Olanapo Ad Olajide, Oakland, CA, Plaintiff pro se. Vincent D. Phillips, Trial Attomey, Franklin E. ,yhite, -/r., Assistant Director, Robert E. Kirsch
Summary: 0R!$[$\$At lJr tllt @nitoD $ltstes @ourt of fe[trul @luimg No. l5-549C (Filed November 23, 2015) FILED Nov 2 3 2015 OLANAPO AD OLAJIDE, U.S. COURT OF FEDERAL CLAIMS Plaintiff, Pro Se; RCFC 12(bX1), Subject-Matter Jurisdiction; RCFC 12(b)(6), Failure to State a Claim; Implied-in-Fact Contract; Fifth Amendment Takines. THE I.INITED STATES, Defbndant. Olanapo Ad Olajide, Oakland, CA, Plaintiff pro se. Vincent D. Phillips, Trial Attomey, Franklin E. ,yhite, -/r., Assistant Director, Robert E. Kirschm..
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0R!$[$\$At
lJr tllt @nitoD $ltstes @ourt of fe[trul @luimg
No. l5-549C
(Filed November 23, 2015)
FILED
Nov 2 3 2015
OLANAPO AD OLAJIDE, U.S. COURT OF
FEDERAL CLAIMS
Plaintiff, Pro Se; RCFC 12(bX1), Subject-Matter
Jurisdiction; RCFC 12(b)(6), Failure to
State a Claim; Implied-in-Fact Contract;
Fifth Amendment Takines.
THE I.INITED STATES,
Defbndant.
Olanapo Ad Olajide, Oakland, CA, Plaintiff pro se.
Vincent D. Phillips, Trial Attomey, Franklin E. ,yhite, -/r., 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, for Defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judee
I. INTRODUCTION
Pro se plaintiff, Olanapo ad Olajide, also known as Ronald Boyede Olajide, brought this
action seeking monetary damages and injunctive reliefagainst the United States, for an alleged
breach of contract and a takings without just compensation pwsuant to the Fifth Amendment of
the United States Constitution. The govemment has moved to dismiss plaintiff s complaint for
lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be
granted, pursuant to Rules 12(b)(l) and 12(bX6) ofthe Rules ofthe United States Court of
Federal Claims ('RCFC'). See generally Def. Mot. Plaintiif has also filed motions for a
preliminary injunction; for expedited ruling upon his motion for a preliminary injunction; for
entry of a default judgment; for a more definite statement; to strike plaintiff s response to
defendant's motion to dismiss; and two miscellaneous motions styled as "Motions for the Court
to Take Judicial Notice of Adjudicative Facts," and "Conected Motion for Court to Take Judicial
Notice of Adjudicative Facts" ("motions for miscellaneous relief'). See generally, Pl. Mot. for
Prelim. Inj.; Pl. Mot. to Expedite Ruling on Prelim. Inj.; Pl. Mot. for Entry of Default Judgment;
Pl. Mot. for Court to Take Judicial Notice of Adjudicative Facts; Pl. Conected Motion for Court
to Take Judicial Notice of Adjudicative Facts; Pl. Mot. for a More Definite Statement; Pl. Mot.
to Strike Response to Mot to Dismiss. For the reasons set forlh below, the Court (l) GRANTS
defendant's motion to dismiss and (2) DENIES as moot plaintiff s motions.
II. FACTUAL AND PROCEDURAL BACKGROUND'
A. Factual Background
Plaintiff pro se, Olanapo ad Olajide, became a United States citizen in 1999. See Compl.
at 3-4, Ex. C; Def. Mot. at2. On May 28, 2015, plaintiff filed a complaint seeking injuncttve
relief and monetary damages from the United States. See generally Compl
In his complaint, plaintiff appears to assert a breach of contract claim and a Fifth
Amendment takings claim against the United States. 1d. Specifically, plaintiff alleges that, on
April 20, 1985, he loaned the government "his family and given names (olajide, olanapo, ad,
Ronald, boyede), likeness and fingerprints." Id.ar3-4. PlaintifT further alleges that the
govemment "did cause the sale of [plaintiff s] aforesaid property in association with their chattel
paper for a social value unknown to the [plaintiffl." 1d.
Plaintiff also contends that he entered into an implied-in-fact contract with the United
States by virtue ofbecoming a United States citizen. SeeCompl.at4; Pl. Resp. IIat5. In this
regard, plaintiff maintains that the Constitution ofthe United States is a contract between him
and the government. Pl. Resp. IIat5. Plaintiff further maintains that under this contract, he is
entitled to compensation from the United States for any use of his name. Compl. at 2-4.
Plaintiff appears to allege that defendant defaulted on this contract by using plaintiffs name and
likeness on his certificate of citizenship and his social security card. Id. ar 4-5. In this regard,
plaintiffargues that the United States defaulted on this contract "on or about April twenty-
I The facts recounted in this Memorandum Opinion and Order are taken from plaintiffs complaint
("Compl. at _"), defendant's motion to dismiss ("Def. Mot. at plaintiff s response to defendant's
motion to dismiss, filed August 19, 2015 C'Pl. Resp. at plaintiff s second response to defendant's
II at
-"), defendant's reply and supplemental
motion to dismiss, filed September 10,2015 C'Pl. Resp.
-"), and
reply in support of its motion to dismiss ("Del Rep. at and
-"),
"Def. Supplemental Rep at-"). Unless
otherwise noted herein, the facts recited are undisputed.
-"
seventh in the year nineteen ninety and [o]n September twelfth in the year nineteen ninety" by
causing "the sale ofthe [plaintiffs] aforesaid propeny," and he demands the "full amount ofthe
value, profits, and rents of his property payable under the note and mortgage to be due." Id. at 4,
6.
Plaintiffalso appears to allege that defendant engaged in a takings in violation ofthe
Fifth Amendment. ,See Compl. at 5. In this regard, he alleges that "intangible property" has been
taken by the govemment for "public use without justly compensating" plaintiff. 1d. Specifically,
plaintiff maintains that the inclusion ofhis name on certain documents evidences a use ofhis
property without just compensation. Id. at 4-5.
Plaintiff requests that the Court enjoin the govemment from using his name, issue a writ
of mandamus to compel the government to compensate him "for the public use of his private
[t]hings," and to award plaintiff $999,999,999.00 in monetary damages. Id. at 5,7 . Plaintiff
also seeks an injunction preventing the government from subjecting him or his properties to
equitable liabilities, as well as an assignment to the United States ofany debts for which he is
currently respon sible. Id.at7.
B. Procedural Background
Plaintiff filed the complaint in this matter on May 28, 2015. See generally CompI. On
June 4, 2015, plaintiff filed a motion for preliminary injunction against the United States. See
generally Pl. Mot. for Prelim. Inj.
The government did not timely respond to plaintiff s motion for preliminary injunction.
Consequently, on July I , 201 5, plaintiff moved for an expedited ruling on his motion for
preliminary injunction. See generally PL Mot. to Expedite.
The government also did not file a timely response to plaintiff s complaint. On July 29,
2015, the govemment filed a motion for an enlargement of time, out of time, to file a motion to
dismiss, along with an attached motion to dismiss plaintiff s complaint pursuant to RCFC
12(bX1). See Def. Mot. for Enlargement of Time; Def. Mot. On July 29,2015, the Court
granted the government's motion for an enlargement of time and granted the govemment leave
to file its motion to dismiss. See Order Granting Mot. for Leave to File Out of Time. In
addition, the Court issued a Show Cause Order directing that the govemment explain why
defendant failed to meet the filing deadlines in this matter. ,See Show Cause Order, July 29,
2015.
On July 30, 2015, plaintiff moved for entry of a defaultjudgment against the United
States. Pl. Mot. forDef. Judg.; see a/so RCFC 55(a). OnJuly3l,20l5,thegovemmentfiledits
response to the Show Cause Order and its responses to plaintilf s motion for preliminary
injunction and plaintiff s motion for an expedited ruling on his motion for a preliminary
injunction. See generally Def. Resp. to Show Cause Order.
On August 12,2015, plaintiff filed, by leave ofthe Court, his reply to the government's
response to his motions for preliminary injunction and for an expedited ruling on the motion for
a preliminary injunction. See generally Pl. Resp. to Mot. for Prelim. Injunction. On August 13,
2015, plaintiff filed a miscellaneous motion styled as "Motion for Court to take Judicial Notice
of Adjudicative F acts." See generally Pl. Misc. Mot. for Court to Take Notice of Adjudicative
Facts. On August I 7, 2015, defendant filed a response to the motion for entry of default
judgment. See generally Mot. for Entry of Default Judgment.
On August 19,2015, plaintiff filed a response to defendant's motion to dismiss. See
generally Pl. Resp. Additionally, on August 24,2015, plaintiff filed a motion for a more definite
statement. See generally Pl. Mot. for a More Definite Statement. On August 26,2015, plaintiff
filed a motion to withdraw plaintiff s response to defendant's motion to dismiss, which the Court
interpreted to be a motion to strike plaintiffs response to defendant's motion to dismiss. See
generally Pl. Mot. to Strike. On August 28, 201 5, defendant filed its reply in support of its
motion to dismiss. See gen erally Def . Rep.
On September 4, 2015, the Court filed a show cause order directing plaintiffto state why,
in light of plaintiff s motion to strike his response to the govemment's motion to dismiss, this
action should not be dismissed for failure to prosecute and for failure to comply with a court
order pursuant to RCFC 41(b). See Show Cause Order, Sept.4,2015. On September 10,2014,
plaintiff filed a response to the Court's September 4, 2015 Show Cause Order and a response to
defendant's motion to dismiss. See Def. Resp. to Show Cause Order; Pl. Resp. II. On
September 25,2015, defendant filed a supplemental reply to plaintiff s response to its motion to
dismiss. See Dei Supplemental Rep. Defendant's motion to dismiss having been fully briefed,
the Court addresses the pending motion.
III, JURISDICTION AND LEGAL STANDARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matter pro se. The Court recognizes that parties proceeding
pro se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner,
404 U.S. 519,520-21 (1972) (holding that pro se complaints are held to "less stringent standards
than formal pleadings drafted by lawyers"). Nonetheless, "[w]hile a court should be receptive to
pro se plaintiffs and assist them, justice is ill-served when ajurist crosses the line from hnder of
fact to advocate." Demes v. United States,52 Fed. Cl. 365,369 (2002). And so, while the Court
may excuse ambiguities in plaintiff s complaint, the Court does not excuse the complaint's
failures. See Henke v. United States,60 F.3d 795, 799 (Fed. Cir. 1995).
In addition, this Court has long recognized that'1he leniency afforded to apro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States,75 Fed. CI.249,253 (2007). For this reason, a pro se plaintiff-like
any other plaintiff-must establish the Court's jurisdiction to consider his claim by a
preponderance of the evidence. Riles v. United States,93 Fed. Cl. 163, 165 (2010).
B. RCFC 12(bX1)
When deciding a motion to dismiss for lack of subject-matter jurisdiction, 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 Ericl402
F.3d 1167, 1172 (Fed. Cir. 2005). Ifthe Court finds that the source of law alleged is not money-
mandating, the Court must dismiss the case for lack ofjurisdiction.
Id. ar 1173; RCFC 12(bxl).
c. RCFC 12(bX6)
Under Rule 12(b)(6), a defendant may move for dismissal of the complaint if the plaintiff
"fail[s] to state a claim upon which relief can be granted." RCFC 12(b)(6). To survive a motion
to dismiss under Rule l2(bX6), "a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to reliefthat is plausible on its face."' AshToft v. Iqbal,556 U.S.662,678
(2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (2007). "A claim has facial
plausibility when the plaintiffpleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." 1d (citing Twombly,550 U.S.
at 556). Pleadings must establish "more than an unadorned, the-defendant-unlauf,rlly-harmed-
me accusation." Id. (citing Twombly,550 U.S. a1 555). "A pleading that offers'labels and
conclusions" or "a formulaic recitation of the elements of a cause ofaction will not do'"' 1d.
(quoting Twombly,550 U.S. at 555). And so,"apro se plaintiff still must establish the requisite
elements of his claim." See Sahagun-Pelayo v. United States, No. 2014-5126,2015 WL
1004362, at*2,*4 (Fed. Cir. Mar. 9, 2015) (quoting Humphrey v. United States,52 Fed. Cl. 593,
595 (2002)) (rejecting a pro se plaintiff s contract claim under Rule 12(b)(6) where the plaintiff
failed to allege the actual authority ofindividual, specific agents with whom he contracted and
where the complaint made legal conclusions not entitled to favorable factual inferences).
D, Express And Implied Contracts
To pursue an action for a contract claim under the Tucker Act, plaintiff must have privity
of contract with the United States. Flexfab, L.L.C.v. United States,424F.3d,1254,1265 (Fed.
Cir. 2005) (The "govemment consents to be sued only by those with whom it has privity of
contract.") (citations omitted). In other words, plaintiff "must show that either an express or
implied-in-fact contract underlies its claim." Trauma Serv. Grp. v. United States,104 F.3d 1321,
1325 (Fed. Cir.1997). The requirements are identical for express and implied-in-fact contracts
with the United States. See Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir.
2006); Huntington Promotional & Supply, LLC v. United States,114 Fed. Cl. 760, 767 (2014)'
(The elements are the same for an express or implied-in-fact contract. . . .").
The elements for a binding contract with the United States are: "a mutual intent to
contract including offer, acceptance, and consideration; and authority on the part of the
government representative who entered or ratified the agreement to bind the united States rn
contract." Total Med. Mgmt., Inc. v. United States, 1 04 F.3d 1314, 1319 (Fed. Cir. 1997)
(citations omitted). Furthermore, the govemmenl "is not bound by its agents acting beyond their
authority and contrary to regulation." Urban Data Sys., Inc. v. United States,699F.2d1147,
1153 (Fed. Cir. 1983) (citations omitted). And so, plaintiff must also show that the government
official had authority to contractually bind the govemment. Trauma Serv. Group, 104 F '3d at
1325.
In addition, to maintain an action for breach ofcontract under the Tucker Act, a plaintiff
must support his claim with well-pleaded allegations going to each element of a contract ,See
Crewzers Fire Crew Transp. Inc. v. United States,74l 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 c/so
RCFC 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.").
E. Fifth Amendment Takings
The United States Court of Federal Claims has exclusive jurisdiction over Fifth
Amendment takings claims in excess of $10,000. 28 U.S.C. $ 1491(a); see also Acceptance Ins.
Cos. Inc.v. United States,503 F.3d 1328, 1336 (Fed. Cir.2007). The Takings Clause ofthe
Fifth Amendment guarantees just compensation whenever private property is "taken" for public
use. U.S. Const. amend. V. The purpose of the Fifth Amendment is to prevent the
"[g]ovemment from forcing some people alone to bear public burdens which, in all faimess and
justice, should be bome by the public as a whole." Penn Central Transp. Co. v. City of New
York,438 U.S. 104, 123 (1978)(quoringArmstrongv. UnitedStates,364 U.S.40, a9 (1960));
see also Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1571 (Fed. Cir. 1994). In order
to have a cause of action for a Fifth Amendment takings, the plaintiff must point to a protectable
property interest that is asserted to be the subject of the takings. See Phillips v. Wash. Legal
Found.,
524 U.S. 1 56, 164 (I 998) ("Because the Constitution protects rather than creates
property interests, the existence of a property interest is determined by reference to 'existing
rules or understandings that stem from an independent source such as state law."') (citation
omitted). In addition, courts have traditionally divided their analysis of Fifth Amendment
takings into two categories-regulatory takings and physical takings.
In this regard, the United States Court ofAppeals for the Federal Circuit has recognized
that "[g]overnment 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." A & D Auto
Sales, Inc. v. United States,748 F.3d 1142, 1151 (Fed. Cir. 2014). In assessing whether a
regulatory takings has occuned, courts generally employ the balancing test set forth in Penn
Central, weighing the character of the govemment action, the economic impact of that action and
the reasonableness ofthe property owner's investment-backed expectations. Penn Central
Transp. Co.,438 U.S. at 124-25. "The general rule at least is that while property may be
regulated to a certain extent, if regulation 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
1o a direct appropriation or ouster").2
2
Regulations that are found to be too restrictive, so that the regulations deprive property of its entire
economically beneficial or productive use, are viewed as categorical takings. Lucas v. S.C. Coastal
Council,505 U.S. 1003, l0l5 (1992); see also A & D Auto Sales,748F.3dat l15l-52. Categorical
takings do not require the application of the Penn Central balancingtest. Id. al I 152. The United States
Supreme Court has mainly applied the categorical test to regulatory takings ofreal property. See
Lucas,
505 U.S. at 1015-19. InA & DAuto Saler, the United States Court ofAppeals for the Federal Circuit
noted that it has at times applied the categorical test to tangible personal property as well. 748 F.3d at
In contrast, physical or per se takings occur when the govemment's action amounts to a
physical occupation or invasion ofthe property, including the functional equivalent of"a
practical ouster of [the property owner's] possession." Transportation Co. v. Chicago,99U.S.
635,642 (1 878); see also Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419,428
(1982). When an owner has suffered a physical invasion ofhis 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,505 U.S. at 1015. The
distinction between a physical invasion and a govemmental activity that merely impairs the use
ofthat property tums on whether the intrusion is "so immediate and direct as to subtract from the
owner's full enjoyment of the property and to limit his exploitation of it." United States v.
Causby, 328 U.S. 256, 265 (1946).
IV. DISCUSSION
The govemment moves to dismiss this action upon two grounds: First, the government
moves to dismiss plaintiff s breach of contract claim for lack ofjurisdiction because there is no
privity of contract between plaintiff and the government. See Def. Mot. at 4. Second, the
government moves to dismiss plaintiff s takings claim for failure to state a claim because
plaintiffpoints to no govemment action that could constitute a takings under the Fifth
Amendment.3 1d. at 5. For the reasons set forth below, the Court grants the government's
motion to dismiss.
A, The Court Does Not Possess Jurisdiction To Consider Plaintiffls
Breach Of Contract Claim
The Court must dismiss plainti{f s breach of contract claim for lack of subjeclmatter
jurisdiction, because plaintiffhas not established that he has either an express or an implied-in-
fact contract with the United States. See RCFC l2(bX1); United States v. Mitchell,463 U.S.
I l5l-52 (citing Rose AUe Farms, Inc. v. United States,3l3 F.3d 1177,1196-98 (Fed. Cir. 2004)); see
also Maitrans, Inc. v. United States, 342 F .3d 1344, l3 53-5 5 (Fed. Cir. 2003).
I The government has moved to dismiss plaintiffs takings claim pursuant to RCFC l2(b)(l), upon the
ground that plaintiff has failed to identify any government action that constitutes a takings in the
complaint. Def. Mot. at 5. Because the substance ofthe government's argument appears to be that
plaintiff fails to state a plausible takings claim, the Court construes the government's motion to be a
motion to dismiss for failure to state a claim upon which reliefcan be granted pursuant to RCFC l2
(b)(6). .tee RCFC l2(bX6).
206,216-17 ( 1983). To establish an express or implied-in-fact contract with the govemment,
plaintiff must allege facts which demonstrate "a mutual intent to contract including offer,
acceptance, and consideration; and authority on the part ofthe govemment representative who
entered or ratified the agreement to bind the United States in contract." Total Med. Mgmt., Inc.,
104 F.3d at 1319. An olfer is defined as "the manifestation of willingness to enter into a bargain,
so made as to justi$ another person in understanding that his assent to that bargain is invited and
will conclude it." Andersonv. United States,344F.3d 1343, 1353 (Fed. Cir.2003)(quoting
Restatement (Second) of Contracts $ 24); Franklin Sav. Corp. v. United States,56 Fed. Cl. 720,
7 42-43 (2003). After an ofl'er is made, "there must be an acceptance, [i.e.], a 'manifestation of
assent to the terms thereof made by the offeree in a manner invited or required by the offer."'
Anderson,344 F.3d at 1355 (quoting Restatement (Second) of Contracts $ 50(1)).
In this case, plaintiffdoes not allege facts to establish that he has entered into either an
express or implied-in-fact contract with the government. Plaintiff alleges that, by granting him
citizenship, the government entered into an implied contract by virtue ofthe United States
Constitution. Pl. Resp. IIat5. Plaintifffurther alleges that he and the government shared a
mutual intent to enter into such a conEact, as evidenced by: (l ) the government's offer of
"voluntary general assignments" in the Constitution; (2) plaintiff s acceptance by "grant[ing]
usage ofhis property. . . evidenced in exhibits 'C' (social security card) and'D' (certificate of
citizenship)"; and, (3) consideration provided in "the promises made in exhibit B (U.S.
Constitution)" and by allowing defendant to use "[p]laintiffs property to generate public
revenues, public charges and public debts." Pl. Resp. II at 5-6.
Plaintifffails, however, to identify any language in the Constitution, or any action on the
part of the government, to show that the govemment manifested a willingness enter into a
contract with plaintiffto pay for the use ofhis name and likeness. See generally Compl. Inthis
regard, plaintiff s social security card and certificate ofcitizenship, which he cites in the
complaint, are forms of identification. These documents do not establish a confiactual
relationship between plaintiif and the government. See Miles v. United States,l4-416C-14-
420C,2014 WL 502057 4 (Fed. Cl. Oct. 6,2014) (dismissing for lack of jurisdiction a suit
alleging breach ofcontract and federal government infringement on plaintiff s copyrighted
name); see also Rivera v. United States,105 Fed. Cl.644,649-50 (2012) (finding that neither a
birth certificate nor a social security number evidence a contract on which a party can sue the
l0
United States); Gravatt v. United States, 100 Fed. Cl. 279,286 (201 1) (rejecting contract claims
founded on the issuance of a birth certificate or social security number as frivolous and outside
the Court's jurisdiction).
In addition, plaintiffhas not shown that a government official with contracting authority
entered into the contract alleged in this case. See general/y Compl. Rather, plaintiff merely
states a "legal conclusion couched as a factual allegation," by alleging the existence of a contract
with the govemment. Kam-Almazv. UnitedStates,682 F.3d 1364,1368 (Fed. Cir.2004)
(citations omitted). And so, plaintiff simply has not met his burden to establish that he has
entered into an express or implied-in-fact contract with the United States. See Crewzers,T4l
F.3d at 1382.
Because plaintiffhas not met his burden to show the existence ofa valid contract with the
United States, he fails to establish that the Court has jurisdiction to consider his breach of
contract claim. And so, the Court must dismiss his claim. RCFC l2(b)(1).
B. Plaintiff Fails To State A Plausible Takings Claim
To the extent that plaintiff alleges a takings claim, he also fails to state a plausible takings
claim in his complaint. RCFC 12(b)(6). To successfully allege a Fifth Amendment takings,
plaintiff must, among other things, point to either a govemment action that directly appropriated
or imposed a regulatory burden on plaintiff, or to a physical occupation or invasion ofhis
property. A & D Auto Sales, lnc.,748 F.3d at I151. In assessing whether a regulatory takings
has occurred, courts generally employ the balancing test set forth in Penn Central, weighing the
character ofthe government action, the economic impact ofthat action and the reasonableness of
the property owner's investmenlbacked expectations. Penn Central Transp. Co.,43 8 U.S. at
124-25.
In the complaint, plaintifffails to allege any action on the part ofthe United States that
could constitute the alleged taking ofhis property. See generally Compl.; Pl. Resp. Plaintiff
alleges that the govemment has taken his name, trade names, likeness, and fingerprints for public
use withoutjust compensation. Compl. at2,4-5; Pl. Resp. IIat4,7. He further alleges that the
govemment's use of his name and likeness on official govemment documents, such as plaintiff s
social security card and certificate of citizenship, constitutes a takings. Pl. Resp. II at 4; Compl.
at Ex. C. D. E.
il
But, the use of plaintiffs name and likeness on his social security card and citizenship
certificate imposes no burden upon plaintiff. For this reason, such a use of plaintiff s name and
likeness cannot be the basis ofhis takings claim here. See, e.g.,Troxelle v. United States,No.
l0-312C,2010 WL 3982349, at *4 (Fed. Cl. Oct. 6,2010) (holding that an alleged security
interest founded on the issuance of a social security number does not create a cognizable
property interest and cannot be the basis ofa takings claim); see also A & D Aulo Sales, lnc.,748
F.3d at I I 5 1 . In addition, plaintiff has not alleged any facts in the complaint regarding an action
on the part of the govemment that could plausibly constitute a takings in this case. Given the
absence ofany factual allegations in the complaint regarding a government action that could
constitute a taking of plaintiff s property, the Court must dismiss plaintiff s takings claim.
RCFC l2(b)(6).
C. Plaintiff s Requests For Other Relief Are Moot
Plaintiff has also filed several motions seeking various relief in this matter. On June 4,
2015, plaintiff filed a motion for preliminary injunction against the United States. See generally
Pl. Mot. for Prelim. Inj. On July l, 2015, plaintiff also filed a motion for an expedited ruling on
his motion for preliminary injunction. See generally Pl. Mot. to Expedite Ruling on Prelim. Inj.
On July 30, 2015, plaintiff moved for entry of a default judgment against the United States. ,9ee
generally Pl. Mot. Def. Judg.; RCFC 55(a). On August 13,2015 and Augusr20,2015,
respectively, plaintiff filed motions for miscellaneous relief. See generally Motion for Court to
Take Judicial Notice of Adjudicative Facts; Conected Motion for Court to Take Judicial Notice
of Adjudicative Facts. On August 24, 2015 plaintiff filed a motion for a more definite statement.
See generally Pl. Mot. for a More Definite Statement. Lastly, on August 26, 201 5, plaintiff filed
a motion to strike plaintiff s response to defendant's motion to dismiss. See gen erally Pl. MoL to
Strike Resp. to Mot. to Dismiss.
Because the Court has determined that it does not possess jurisdiction to consider
plaintiff s claim, the Court also dismisses plaintiff s motions as moot. See, e.g., l|'ojtczak v.
United States, No. l2-449C, 2012 WL 4903025, at *4 (Fed. Cl. Oct. 17, 2012) ("Because . . .
plaintiffstill has not raised allegations over which this court has jurisdiction, the court dentes
these motions as moot.").
t2
V. CONCLUSION
In sum, a plain reading ofthe complaint makes clear that plaintiff has not established the
existence of an express or implied-in-fact contract with the govemment. Plaintiff must have
privity of contract with the United States to pursue his breach of contract claim under the Tucker
AcI. Flexfab, L.L.C. v. United Slates,424 F.3d 1254, 1265 (Fed. Cir. 2005) (The "govemment
consents to be sued only by those with whom it has privity ofcontract.") (citations omitted).
Plaintiffhas not established privity of contract here. And so, the Court must dismiss plaintiff s
breach ofcontract claim for lack of subject-matter jurisdiction. RCFC 12(b)(l).
To the extent that plaintiff asserts a takings claim, dismissal of this claim is also
warranted, because plaintiff fails to identifr any government action that could constitute the
alleged takings in the complaint. RCFC 12(bX6).
Because the Court has determined that the complaint must be dismissed, the Court
dismisses plaintiff s motions for preliminary injunction; for an expedited ruling on his motion for
a preliminary injunction; for entry of a default judgment; for a more definite statement; to strike
plaintiffs response to defendant's motion to dismiss; and for miscellaneous reliefas moo1,
For the foregoing reasons, the Court:
(1) GRANTS defendant's motion to dismiss;
(2) DENIES as moot plaintiff s motion for preliminary injunction;
(3) DENIES as moot plaintiff s motion to expedite ruling on the motion for preliminary
injunction;
(4) DENIES as moot plaintiffs motion for default judgment;
(5) DENIES as moot plaintiff s motion for miscellaneous relietl
(6) DENIES as moot plaintiff s motion for a more definite statement; and
IJ
(7) DENIES as moot plaintiffs motion to strike plaintif s response to defendant's
motion to dismiss.
The Clerk's Office is directed to ENTER judgment DISMISSING the complaint.
Each party to bear their own costs.
ITISSOORDERED.
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