2018 WL 3214049 (Fed.
Cl. June 29, 2018); Kennedy v. United States. No. 18-826C,
2018 WL 3214115 (Fed. Cl. June
29, 2018). Also on June ll, 2018, Mr. Kennedy filed an action in the United States Tax Court.
Kennedy v. Comm’r, No. 011586-18 (T.C. filed June 11, 2018). Since filing the instant
complaint, Mr. Kennedy has filed Six additional actions in this court, one of which is assigned to
the undersigned Kennedy v. United States, No. 18-1030C (Fed. Cl. filed luly 11, 2018);
Kennedy v. United States, No. 18-1029C (Fed. Cl. filed July 11, 2018); Kennedy v. United
States, No. 18-1028C (Fed. Cl. filed July ll, 2018); Kennedy v. United States, No. 18-1027C
(Fed. Cl. filed July 11, 2018); Kennedy v. United States, No. 18-1006€ (Fed. Cl. filed July li,
2018); Kennedy v. United States, No. 18-942C (Fed. Cl. filed June 28, 2018).
_3_
vacate a void judgment.” I_d. 1111 7-8. By doing so, Mr.
Blumberg and Judge Sudderth “proceeded under color of law
and stole funds from [l\/Ir. Kennedy]” by denying him funds
that he asserts were rightfully his, resulting in a “loss of
[fmancial] liberty.” I_d. 1111 9-10. Since, according to Mr.
Kennedy, the Tarrant County court lacked jurisdiction to enter
a void judgment Mr. Blumberg and Judge Sudderth breached
their duty “to prove jurisdiction When objection to jurisdiction
is asserted.” Li 1111 11-12.
0 The identified defendants breached their duty to allow Mr.
Kennedy to “proceed without injury, secure in his capacities,”
and to “eXercise his right to liberty.” I;d. 1111 16-18.
0 The identified defendants, particularly those who are attorneys,
have “breach[ed] their oaths of offices.” I_d. 11 26. Further,
“[tjhe business model of Defendants is based on a foundation
of deceptions, lies[,] and fi'aud.” I_d. 11 28.
» Mr. Blumberg, Mr. Bagley, Mr. Kennard, and Patelco Credit
Union “stole[ Mr. Kennedy’s] personal property and trade
secrets.” Ld. 11 31.
¢ Mr. Kennedy “has the right to demand and redeem lawful
money” from Patelco Credit Union and the Federal Reserve
Bank of New York, and only recently became aware that he
could do so. Ld. 1111 32-33 (relying on 12 U.S.C. § 411). Thus,
Patelco Credit Union has been c‘unlawfully using the interest”
on Mr. Kennedy’s money since 1985, when he deposited his
first paycheck LE. 1111 33-34.
Mr. Kennedy demands, from each identified defendant, (1) the greater of “$ l ,000 for
each day of unlawful behaviors” or $5 million for “general damages,” ii 11 43, and (2) the
greater of “$5,000 for each failure to act” or $25 million for “damages for the injurycaused by
defendant[s]’ absence of required actions,” § 11 44. He also demands the return of the “value of
all bonds created in these matters in this case,” hi”d_. 11 51, pemianent injunctions enjoining the
identified defendants “from interfering in any way with [his] lawful rights” and ordering the
identified defendants to “provide him With a lawful governmen ” and “honor their fiduciary duty
to [him],” ida 1111 48-49, and declaratory judgments that “defendants have acted contrary to
constitutional right, power, or privilege” and “in excess of statutory jurisdiction [and] authority
and short of statutory right,” § 1111 46-47.
II. LEGAL STANDARDS
A. Pro Se Plaintif`f`s
Pro se pleadings are “held to less stringent standards than formal pleadings drafted by
lawyers” and are “to be liberally construed.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per
curiam) (internal quotation marks omitted). However, 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,
75 Fed. Cl. 249, 253 (2007); accord Henke v. United States,
60 F.3d
795, 799 (Fed. Cir. 1995) (“The fact that [the plaintiff] acted pro se in the drafting of his
complaint may explain its ambiguities, but it does not excuse its failures, if such there be.”). ln
other words, a pro se plaintiff is not excused from his burden of proving, by a preponderance of
evidence, that the court possesses jurisdiction §p§ McNutt v. Gen. Motors Acceptance Corp..
298 U.S. 178, 179 (1936); Banks v. United States,
741 F.3d 1268, 1277 (Fed. Cir. 2014) (citing
Revnolds v. Annv & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988)).
B. Subject Matter Jurisdiction
Whether the court possesses jurisdiction to decide the merits of a case is a “threshold
matter.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94-95 (1998). Subject matter
jurisdiction cannot be waived or forfeited because it “involves a court’s power to hear a case.”
United States v. Cotton,
535 U.S. 625, 630 (2002), quoted in Arbaugh v. Y & H Corp.,
546 U.S.
500, 514 (2006). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall)
506, 514 (1868). Therefore, it is “an inflexible matter that must be considered before proceeding
to evaluate the merits of a case.” Matthews v. United States,
72 Fed. Cl. 274, 278 (2006); accord
K-Con Bldg. Svs., Inc. v. United States,
778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party,
or the court sua sponte, may challenge the court’s subject matter jurisdiction at any time.
Arbaugh, 546 U.S. at 506; see also Jeun v. United States1
128 Fed. Cl. 203, 209-10 (2016)
(collecting cases).
in determining whether subject matter jurisdiction exists, the court generally “must
accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration. lnc. v. United States,
659 F.3d 1159,
1163 (Fed. Cir. 2011). However, the court has no subject matter jurisdiction over frivolous
claims. Moden v. United States,
404 F.3d 1335, 1340-41 {Fed. Cir. 2005). For example, there is
no subject matter jurisdiction over claims that are “so insubstantial, implausible, foreclosed by
prior decisions . . . , or otherwise completely devoid of merit as not to involve a federal
controversy.” I;d. at 1341 (intemal quotation marks omitted). If thc court finds that it lacks
subject matter jurisdiction over a claim, Rule 12(h)(3) of the Rules of the United States Court of
Federal Claims (“RCFC”) requires the court to dismiss that claim.
C. The Tucker Act
The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to
entertain suits against the United States is limited “The United States, as sovereign, is immune
from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity “may not be inferred, but must be unequivocally expressed.” United
States v. White Mountain Apache Tribe,
537 U.S. 465, 472 (2003). Further, “[w]hen Waiver
legislation contains a statute of limitations, the limitations provision constitutes a condition on
the waiver of sovereign immunity.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,
461U.S.273, 287 (1983).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States, not sounding in tort, that are founded
upon the United States Constitution, a federal statute or regulation or an express or implied
contract with the United States. 28 U.S.C. § l491(a)(l) (2012); White
l\/lountain, 537 U.S. at
472. However, the Tucker Act is merely a jurisdictional statute and “does not create any
substantive right enforceable against the United States for money damages.” United States v.
Testan,
424 U.S. 392, 298 (1976). Instead, the substantive right must appear in another source of
law, such as a “money-mandating constitutional provision statute or regulation that has been
violated, or an express or implied contract with the United States.” Loveladies I-Iarbor, Inc. v.
United States,
27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).
D. Statute of Limitations
Besides meeting the 'l`ucker Act requirements, any action in the Court of F ederal Claims
must be “filed within six years after such claim first accrues” to fall within the court’s
jurisdiction 28 U.S.C. § 250l. A cause of action accrues “when all the events Which fix the
government’s alleged liability have occurred grgl the plaintiff was or should have been aware of
their existence.” Hopland Band of Pomo Indians v. United States,
855 F.2d 1573, 1577 (Fed.
Cir. 1988), quoted in San Carlos Apache Tribe v. United States,
639 F.3d 1346, 1350 (Fed. Cir.
2011). The limitations period set forth in 28 U.S.C. § 2501 is an “absolute” limit on the ability
of the Court of Federal Claims to exercise jurisdiction and reach the merits of a claim. John R.
Sand & Gravel Co. v. United States.
552 U.S. 130, 133-35 (2008).
III. DISCUSSION
Under a liberal construction of Mr. Kennedy’s pro se complaint, he is alleging claims for
embezzlement perjury, fraud, conspiracy, harassment, breach of fiduciary duty, negligence,
violation of 12 U.S.C. § 411, and civil rights violations against various federal, state, and private
individuals and entities. Mr. Kennedy also appears to collaterally attack decisions issued by
- courts in the Western District of Oklahoma and Tarrant County, Texas. Without inquiring into
whether Mr. Kennedy’s claims are barred by claim and/or issue preclusion based on prior court
decisions, it is clear that the Court of Federal Claims lacks jurisdiction over his claims.
Consequently, Mr. Kennedy’s complaint must be dismissed
A. The United States Is the 0nly Proper Defendant in the Court of Federal Claims
Although the court has liberally construed the complaint in the light most favorable to
Mr. Kennedy, the crux of the allegations contained therein are lodged against (l) attorneys (and
their law firms) and a judge involved in his prior court cases, i.e., private individuals and state
government officials, and (2) state agencies responsible for supervising attorneys and the courts,
including the state itself. Mr. Kennedy also names Patelco Credit Union, a private entity, as a
defendant However, in the Court of F ederal Claims, “the guy proper defendant . . . is the
United States, not its officers, nor any other individual.” Stephenson v. United States, 58 Fed.
Cl. 186, 190 (2003); accord RCFC 10(a). Because “the United States itself” is the only proper
defendant in the Court of F ederal Clairns, this court lacks jurisdiction “over any claims alleged
against states, localities, state and local government entities, or state and local government
officials and employees.” Anderson v. United States,
117 Fed. Cl. 330, 331 (20l4). Similarly,
the Court of F ederal Clairns lacks jurisdiction “over suits against private parties.” Edelmann v.
United States,
76 Fed. Cl. 376, 380 (2007). in other words, “if the relief sought [in the Court of
Federal Claimsj is against other than the United States, the suit as to them must be ignored as
beyond the jurisdiction of the court.”
Sherwood, 312 U.S. at 5 84. Accordingly, to the extent
that Mr. Kennedy complains of improper conduct by parties other than the United States federal
govemment, this court lacks jurisdiction over those claims, and they must be dismissed
B. The Court of Federal Claims Lacks Jurisdiction Over Mr. Kennedy’s Civil Rights and
Tort Claims
To the extent that Mr. Kennedy asserts civil rights violations and commissions of various
torts, his claims are outside the reach of this court’s Tucker Act jurisdiction
First, the Court of Federal Claims is not a federal district court. Ledford v. United States,
297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Lightfoot v. Cendant Mortg. Corp.,
137 S. Ct.
553, 563 (2017) (distinguishing between the “Court of Federal Claims” and “federal district
courts”).
Second, only federal district courts possess jurisdiction to entertain claims alleging civil
rights violations. See, e.g., Jones v. United States, 104 Fed Cl. 92, 98 (2012) (explaining that
the Court of Federal Claims has no jurisdiction over claims based on, among other causes of
action, alleged “violations of . . . civil rights”); Marlin v. United States,
63 Fed. Cl. 475, 476
(2005) (explaining that Bivens claims and claims alleging violations cf 42 U.S.C. §§ 1981, 1983,
and 1985 must be heard in federal district courts).
Third, this court lacks jurisdiction to entertain claims sounding in tort. 28 U.S.C.
§ 1491(a); Rick’s Mushroom Serv., lnc. v. United States,
521 F.3d 1338, 1343 (Fed. Cir. 2008).
Under the Federal Tort Claims Act‘, 28 U.S.C. §§ 1346(b)(l), 2671-2680, jurisdiction over tort
claims against the federal government lies exclusively in federal district courts. U.S. Maring
Inc. v. United States,
722 F.3d 1360, 1365-66 (Fed. Cir. 2013). Claims offraud, conspiracy,
harassment, breach of fiduciary duty, and negligence sound in tort. See1 e.g., Lawrence Battelle,
Inc. v. United States,
117 Fed. Cl. 579, 585 (2014) (fraud and negligence); Sellers v. United
_7_
States,
110 Fed. Cl. 62, 68 (2013) (negligence); Cox v. United States,
105 Fed. Cl. 213, 218
(2012) (harassrnent, fraud, and breach of fiduciary duty); Phang v. United States,
87 Fed. Cl.
321, 325 (2009) (fraud); Gant v. United States,
63 Fed. Cl. 311, 316 (2004) (conspiracy, fraud,
and negligence).
in short, the court must dismiss any civil rights or tort claims asserted by Mr. Kennedy.
C. The Court of Federal Claims Lacks Jurisdiction Over Criminal Matters
Next, Mr. Kennedy alleges that criminal activity has occurred in the form of perjury and
embezzlement HoWever, it is Well established that the Court of Federal Clairns “has no
jurisdiction to adjudicate any claims Whatsoever under the federal criminal code.” Josiiua v.
United States,
17 F.3d 378, 379 (Fed. Cir. 1994) (internal quotation marks omitted) (summarily
affirming a Court of Federal Clainis dismissal order); see also Hufford v. United States, 87 Fed.
Cl. 696, 702 (2009) (collecting cases). Therefore, to the extent that Mr. Kennedy seeks redress
for criminal violations, such claims must be dismissed as beyond the jurisdiction of this court
D. The Court of Federal Claims Lacks Jurisdiction Over Mr. Kennedy’s Statutory Claim
Mr. Kennedy also asserts that he is entitled to “demand and redeem lawful money” from
Patelco Credit Union and the Federal Reserve Bank of New York pursuant to 12 U.S.C. § 411.
In its entirety, that statute (which was last amended in 193 5) provides:
Federal reserve notes, to be issued at the discretion of the Board of
Governors of the Federal Reserve System for the purpose of
making advances to Federal reserve banks through the Federal
reserve agents as hereinafter set forth and for no other puipose, are
authorized The said notes shall be obligations of the United States
and shall be receivable by all national and member banks and
Federal reserve banks and for all taxes, customs, and other public
dues. They shall be redeemed in lawful money on demand at the
Treasury Department of the United States, in the city of
Washington, District of Colunibia, or at any Federal Reserve bank.
12 U.S.C. § 411 (2012). in other Words, cash can be (1) used to pay government debts,
(2) deposited in banks, and (3) redeemed for “lawful money” at the Treasury Department or any
Federal Reserve bank.
The purpose of this statute is to “make clear that the [F ederal Reserve] notes [i.e., cash]
are authorized currency of the United States.” Provenza v. Cornptroller of Treasurv,
497 A.2d
831, 833-34 (Md. Ct. Spec. App. 1985). To the extent that this statute imposes a duty on the
federal government, the Treasury Department and Federal Reserve banks must redeem cash for
lawhil money when cash is presented for redemption However, Mr. Kennedy asserts that he
“may demand lawful money at any time,” Compl. 1[ 36, Without presenting cash equal in value to
the amount of lawful money demanded Such an allegation is frivolous on its face. As such, the
allegation fails to invoke the jurisdiction of this court.
E. The Court of Federal Claims Lacks Jurisdictiori to Entertain Plaintiff’ s Collateral
Attaek Against the Decisions of Other Courts
ln addition to alleging claims involving civil rights, torts, criminal matters, and statutory
violations, Mr. Kennedy appears to be collaterally attacking unspecified decisions of the United
States District Court for the Westem District of Oklahoma and the Tarrant County, Texas state
district court. I-Iowever, the Tucker Act does not provide the Court of Federal Claims with
jurisdiction to entertain collateral attacks on the decisions of other courts. 28 U.S.C. § 149l(a);
see, e.g., Shi`nnecock Indian Nation v. United States, 782 F.3d l345, 1352 (Fed. Cir. 2015)
(“Binding precedent establishes that the Court of Federal Claims has no jurisdiction to review the
merits of a decision rendered by a federal district court.”); Vereda, Ltda. v. United States,
271
F.3d 1367, 1375 (Fed. Cir. 2001) (“[T]he Court of Federal Claims cannot entertain a taking
claim that requires the court to scrutinize the actions of another tribunal.” (internal quotation
marks omitted)). Mr. Kennedy’s recourse concerning prior adverse decisions is “the statutorily
defined appellate process,” Shinnecock indian
Nation, 782 F.3d at 1353 (citing 28 U.S.C.
§ 1291), whether in state or federal court.
F. Mr. Kennedy’s Claims Are Tinie-Barred
Even if this court otherwise had jurisdiction to entertain any of Mr. Kennedy’s claims,
they are likely barred by the six-year statute of limitations generally applicable in the Court of
Federal Claims. §§e_ 28 U.S.C. § 2501. The only specific conduct to which l\/lr. Kennedy refers
in his complaint is (l) ludge Sudderth having “ignored” his November 10, 2003 petition With
respect to Mr. Blumberg’s allegedly improper acts and (2) his own failure to demand lawful
money beginning in 1985. Further, Mr. Kennedy voluntarily dismissed a subsequent lawsuit that
he filed against Mr. Blumberg on March 10, 2004. Therefore, the six-year statute of limitations
imposed by 28 U.S.C. § 2501 began to run, at the latest, on March 10, 2004, and expired, at the
latest, on March 10, 2010. Because l\/lr. Kennedy did not file the instant complaint until June 12,
2018, this court lacks jurisdiction to entertain his claims
G. The Court of Federal Claims Lacks Authority to Graiit Equitable Relief
Finally, in addition to monetary relief, Mr. Kennedy seeks certain permanent injunctions
and declaratory judgments However, it is well settled that the Court of Federal Claims generally
lacks the authority to grant such equitable relief E Bowen v. Massachusetts,
487 U.S. 879, _
905 (1988) (holding that the Court of Federal Claims lacks the “general equitable powers of a
district court to grant prospective relief ’). This court is only authorized to award equitable relief
in certain specified situations §ee judy at 905 n.40; Gonzales & Gonzales Bonds & lns. Agencv.
lnc. v. Dep’t of Homeland Sec.,
490 F.3d 940, 943 (Fed. Cir. 2007); Kanemoto v. Reno,
41 F.3d
641, 644-45 (Fed. Cir. 1994). None of those circumstances applies here. § 28 U.S.C.
§ l49l(a)(2) (providing the court with jurisdiction to issue, “as incident of and collateral to” an
award of money damages, “orders directing restoration to office or position, placement in
,9_
appropriate duty or retirement status, and correction of applicable records”); § (providing the
court with jurisdiction to render judgment in nonmonetary disputes arising under the Contract
Disputes Act of 1978); § § 1491(b)(2) (providing the court with jurisdiction to award
declaratory and injunctive relief in bid protests); _i_d_. § 1507 (providing the court with jurisdiction
to issue declaratory judgments under 26 U.S.C. § 7428).
H. The Court Decliiies to Transfer This Case
When the Court of Federal Claims lacks jurisdiction over a claim, it is empowered to
transfer such claim to an appropriate court if doing so “is in the interest ofjustice.” 28 U.S.C.
§ 1631. “Transfer is appropriate when three elements are met: (l) [t]he transferring court lacks
subject matterjurisdiction; (2) the case could have been filed in the court receiving the transfer;
and (3) the transfer is in the interests of justice.” Brown v. United States,
74 Fed. Cl. 546, 550
(2006). The failure of even one of these elements renders transfer improper.
Transferring Mr. Kennedy’s case to an appropriate district court will not “serve the
interests of justice.” Khalil v. United States, l33 Fed. Cl. 390, 393 (2017). ln Khalil, another
judge of this court declined to transfer the case because doing so would “serve[j no purpose”
since the plaintiffs claims had already been considered by a district court. Ld ln the instant
case, Mr. Kennedy has similarly “already availed himself of the opportunity,” imd;, to present his
claims against the federal government to a district court. ln other words, the courts that would
have jurisdiction have already considered plaintiff s claims Therefore, as in Khalil, transferring
Mr. Kennedy’s claims would be futiie. ln any event, transferring a case where the plaintiff wants
to “test his skills as a litigator” does not advance the interests of justice.
Accordingly, the court declines to transfer any part of plaintiff s case to another court.
IV. APPLICATION TO PROCEED IN FORMA PAUPERIS
To proceed with a civil action in this court, a plaintiff must either pay $400 in fees-a
3350 filing fee plus a $50 administrative fee_or request authorization to proceed without
payment of fees by submitting a signed application to proceed in forma pauperis6 §ge 28 U.S.C.
§§ 1915, 1926; RCFC 77(0); see also Waltner v. United States,
93 Fed. Cl. 139, 141 n.2 (2010)
(concluding that 28 U.S.C. § 1915(a)(l) applies to both prisoners and nonprisoners alike).
Plaintiff`s wishing to proceed in forma pauperis must submit an affidavit that (l) lists all of their
assets, (2) declares that they are unable to pay the fees, and (3) states the nature of the action and
their belief that they are entitled to redress. 28 U.S.C. § 1915(a)(1). Evaluation of a plaintiffs
ability to pay is “left to the discretion of the presiding judge, based on the information submitted
by the plaintiff” Alston-Bullock v. United States,
122 Fed. Cl. 38, 45 (2015).
6 While the Court of Federal Claims is not generally considered to be a “court of the
United States” within the meaning of Title 28 of the United States Code, the court has
jurisdiction to adjudicate applications to proceed in forma pauperis §_e§ 28 U.S.C. § 2503(d)
(deeming the Court of Federal Claims to be a “court of the United States” for purposes of 28
U.S.C. § 1915).
_10..
As noted above, l\/lr. Kennedy filed, concurrent with the complaint, an application to
proceed iii forma pauperis. Mr. Kennedy has fulfilled all three requirements, and the court is
satisfied that he is unable to pay the filing fee otherwise required by RCFC 77.1(0). Therefore,
the court grants Mr. Kennedy’s application and waives his filing fee.
V. CONCLUSION
The Court of Federal Claims lacks jurisdiction over claims involving civil rights, torts, or
criminal matters; to entertain frivolous claims or collateral attacks on the decisions of other
courts; and, with exceptions not relevant here, to award equitable relief. Therefore, the court has
no jurisdiction to consider any aspect of l\/lr. Kennedy’s complaint Further, transferring Mr.
Kennedy’s case to a district court is not in the interests of justice.
Accordingly, Mr. Kennedy’s complaint is DISMISSED WITHOU'I` PREJUDICE for
lack of subject-matter jurisdiction Mr. Kennedy’s application to proceed in fomia pauperis is
GRANTED. No costs. The clerk is directed to enter judgment accordingly
IT IS SO ORDERED.
_11_
