Brestle v. United States, No. 18-184C

CourtCourt of Federal Claims
Writing for the CourtHORN, J.
PartiesGARY C. BRESTLE, Plaintiff, v. UNITED STATES, Defendant.
Decision Date22 June 2018
Docket NumberNo. 18-184C

GARY C. BRESTLE, Plaintiff,
v.
UNITED STATES, Defendant.

No. 18-184C

United States Court of Federal Claims

June 22, 2018


ORIGINAL

Motion to Dismiss; Subject Matter Jurisdiction; Pro Se Plaintiff; In Forma Pauperis; Tort; Criminal Jurisdiction; Eighth Amendment to the United States Constitution; Freedom of Information Act.

Gary C. Brestle, pro se, Wellington, FL.

Jeffrey M. Lowry, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Department of Justice, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Department of Justice, and Chad A. Readier, Acting Assistant Attorney General.

OPINION

HORN, J.

In the above-captioned case, pro se plaintiff Gary C. Brestle filed a complaint in this court alleging that he had served as an informant for the United States, through the Department of Justice (DOJ). Plaintiff states that he suffered "emotional distress" and "psychological damage" due to the DOJ's failure to apprehend "individuals," on whom plaintiff provided information in his role as an alleged informant. Plaintiff also alleges that he was kept in "solitary confinement" in violation of his rights under the Eighth Amendment to the United States Constitution. Plaintiff seeks an unspecified amount of compensatory and punitive damages.

FINDINGS OF FACT

Plaintiff alleges that the DOJ has "intentionally and willfully" deprived the "federal court system" from viewing the "documents which illustrate clearly" the "crimes" reported by plaintiff, as an informant, to the DOJ. Plaintiff further alleges that, as a result of the alleged concealment of "documents" by the DOJ, "he and his family live in constant fear of retaliation." Plaintiff claims that on several different occasions, he filed requests under

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the Freedom of information Act (FOIA), seeking "documents" relating to "crimes" which he had reported to the DOJ. Plaintiff states that in his most recent request for production of documents, which was filed with the "Office of Information Policy, DOJ 2016," plaintiff provided the DOJ with:

the "exact verbiage" contained within DOJ's emails and letters, which illustrate without any ambiguity that individuals within the United States, South America, and the Middle East where at least one of those individuals was designated by the DOJ as an associate of the AL-QAEDA terrorist organization, and that the same individual was also associated with the murder of a jurors father in the US Virgin Islands, as stated by the "DOJ." Another of the more than seven conspirators, (from the Middle East) was in fact investigated by the United Nations to determine if that individual was an actor in the assassination of the Prime Minister of Lebanon Rafik Harrarri.1

(emphasis in original). According to plaintiff, "[a]ll documents" confirming that "[t]hese individuals engaged in a money laundering scheme, which involved the paying off of bank officials at Banco Santander Bank in Brazil, where US Citizens were defrauded within the scheme," have been "repeatedly withheld from the courts." Plaintiff alleges that these "individuals were not apprehends, even though DOJ classified the documents as j(2) FOIA documents, which indicates that criminals 'should have been' apprehended." Plaintiff claims that plaintiff "controls all of the FOIA requests made as previously stated, The facts Plaintiff stated to the DOJ were crystal clear, pointing out dates, times, and individuals names." Plaintiff also alleges that "[t]hese individuals" have contacted one of his family members, and, "[d]ue to the fact that these individuals . . . were not apprehended," plaintiff has suffered "emotional distress" and "psychological damage." Additionally, plaintiff alleges that he was placed into "'solitary confinement' (cell 302), when he in fact would not cooperate with the destruction of certain records." Plaintiff asserts that being placed in "'solitary confinement'" violated his rights under the Eighth Amendment to the United States Constitution.

On February 5, 2018, plaintiff filed his complaint in the above-captioned case in this court. In his complaint, plaintiff contends that "[t]he 'Tucker Act' provides the proper vehicle for Plaintiff. See 28 U.S.C. 1491, 1346(a)(2)." Plaintiff argues that his "claims are cognizable to render the United States liable for damages under the Tucker Act," and he seeks monetary damages in an unspecified amount as compensatory and punitive damages. Also on February 5, 2018, plaintiff filed a document titled "PERMISSION TO PROCEED IN FORMA PAUPERIS," as plaintiff claims to have "no other source of income other than social security." The court notes that plaintiff has not submitted a completed copy of the United States Court of Federal Claims' Application to Proceed In Forma Pauperis, and simply makes a statement in the document he titles "PERMISSION TO

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PROCEED IN FORMA PAUPERIS" that plaintiff is "requesting permission to proceed in forma pauperis in the attached action."

On March 16, 2018, plaintiff filed a document titled "PERMISSION TO AMEND," wherein plaintiff requests "permission to amend Plaintiff's initial filing," which was submitted to the court on February 5, 2018, "with the following facts, which the court will find clear and convincing." Plaintiff alleges that "[i]n January of 2012, and again in September of 2013 the United States proferred a series unsworn declarations pursuant to Title 28 U.S.C. 1746, illustrating that Plaintiff's life could be endangered, or at the very least face physical injury due to his roie as a government informant." Plaintiff further alleges that:

Facts also illustrate that the United States altered documents, and ordered the destruction of other document. These facts were corroborated with inter-agency memos. Plaintiff requested on at least seven different occasions to provide a "polygraph test" which would be in compliance with policy, those requests were ironically denied.

On March 23, 2018, the court issued an Order denying plaintiff's March 16, 2018 "PERMISSION TO AMEND" his complaint, because plaintiff had not included a proposed amended complaint with his motion to amend the complaint. The court also stated in the March 23, 2018 Order that only grounds which are within the court's jurisdiction are appropriate for an amended complaint, and plaintiff should consider, prior to filing a new motion to amend the complaint, whether plaintiff's claims fall within the jurisdiction of the court.

On March 23, 2018, defendant filed "DEFENDANT'S MOTION TO DISMISS" plaintiff's complaint pursuant to Rule 12(b)(1) (2017) of the Rules of the United States Court of Federal Claims (RCFC), arguing that this court lacks subject matter jurisdiction over plaintiff's claims. (capitalization in original). Defendant asserts that plaintiff's claim seeking monetary and punitive damages resulting from "emotional distress" and "psychological damage" should be dismissed because this court lacks jurisdiction to adjudicate tort claims. Defendant also argues that this court does not have jurisdiction to entertain plaintiff's claim "that he is or was being kept in solitary confinement in violation of the Eighth Amendment to the United States Constitution" because the Eighth Amendment is not a money-mandating source of law. Further, defendant contends that this court lacks jurisdiction over plaintiff's claims arising under the FOIA. Finally, defendant argues that 28 U.S.C. § 1346(a)(2) (2012), which plaintiff cites in his complaint as a basis for jurisdiction in this court, "only applies to district courts," and does not apply to the United States Court of Federal Claims.

On April 3, 2018, plaintiff submitted a filing to this court titled "AMEND PLEADINGS PURSUANT TO RULE 15(A)(1), F.R.CV.P." Additionally, plaintiff submitted a copy of his February 5, 2018 complaint and a copy of his February 5, 2018 "PERMISSION TO PROCEED IN FORMA PAUPERIS" as attachments to his April 3, 2018 submission. The Clerk's Office did not file plaintiff's submissions because plaintiff's submission did not

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comply with the RCFC 5.5(d)(2) (2017), under which a party is required to file an original and two copies of any filing; RCFC 5.5(g) (2017), which requires that the name of the judge assigned to the case be included below the docket number in all filings; RCFC 5.3 (2017), which requires that a proof of service, showing the day and manner of service, the person or entity served, and the method of service employed be attached to the end of any original document and to any copies of that document, by the party executing a certificate of service; RCFC 11 (2017), which requires that every pleading, written motion, and other paper must be signed by a party personally if the party is unrepresented.

On April 10, 2018, plaintiff filed a document titled "OBJECTION, RE: MOTION TO DISMISS." In his April 10, 2018 objection, plaintiff alleges that defendant fails to mention "the fact that Federal codes were violated pursuant to the Federal Rules of Criminal Procedure under Titles 18 Sections 1505, 1513 and various other criminal statutes," in order to protect "individuals employed by defendant" from any "punishment or freedom from the injurious consequences of this action." Plaintiff claims in his April 10, 2018 objection that he was "'recruited'" by defendant

to report crimes involving (a) money laundering scheme, (b) defrauding U.S. Citizens, (c) paying off of bank officials to subvert international banking laws, (d) unlawful entry of illigal immigrants to the U.S. etc., and when Plaintiff became astounded of Defendant's lack to take action, Plaintiff was placed in solitary confinement and told; "if you do not allow [us] to destroy these documents, then [you] will not leave solitary confinement."

(alterations in original). Plaintiff further states in his "OBJECTION, RE:...

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