Straw v. United States, 17-1082C

• Decision Date: 06 December 2017
• Docket Number: No. 17-1082C,17-1082C
• Parties: ANDREW U. D. STRAW, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

ANDREW U. D. STRAW, Plaintiff, v. UNITED STATES, Defendant.

No. 17-1082C

United States Court of Federal Claims

December 6, 2017

ORIGINAL

Motion to Dismiss; In Forma Pauperis; Judicial Takings; Americans with Disability Act; 28 U.S.C. § 1500

Andrew U. D. Straw, Schaumburg, IL, pro se.

John Sinclair Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Chad A. Readier, Acting Assistant Attorney General.

OPINION

HORN, J.

On August 9, 2017, pro se plaintiff Andrew U. D. Straw, according to his description, "a disabled lawyer," filed a complaint with this court in the above-captioned case. Plaintiff separately filed an Application to Proceed In Forma Pauperis that same day.

In his complaint, plaintiff seeks $3,000,000.00 in compensatory damages from the United States "due to the Fifth Amendment Private Personal Property Taking of 3 federal law licenses as part of a conspiracy to deprive me of rights I have under the ADA [Americans with Disabilities Act of 1990], Titles II and V . . . ." (emphasis in original). According to plaintiff, the alleged conspiracy stems from events which occurred during plaintiff's employment with the Indiana Supreme Court. According to the complaint, in 2001, plaintiff allegedly broke his pelvis and both of his legs driving to the Indiana Supreme Court for work. Plaintiff further alleges that the Indiana Supreme Court has continually discriminated against him since 2001 and, that in an attempt to make plaintiff quit his job, "took away" plaintiff's "handicap parking close [sic] to the office, an accommodation [plaintiff] needed after [his] car accident." In 2014, plaintiff states that he complained to the "ADA Coordinator of the Indiana Supreme Court," who, according to plaintiff, "immediately retaliated" against plaintiff, "attacking" plaintiff's disabilities, "disability work, and even [plaintiff's] work helping Ukrainian refugees from the war with Russia." According to plaintiff, the "disciplinary process then lasted 27 months and I ended up with a suspended license for having filed 4 disability rights cases." Plaintiff states that the Indiana Supreme Court suspended his Indiana "law license" for 180 days without automatic reinstatement on February 14, 2017. See Matter of Straw, 68 N.E.3d 1070, 1073 (Ind.) ("For Respondent's [Mr. Straw's] professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, effective immediately.") (emphasis omitted), cert. denied sub nom. Straw v. Ind. Supreme Court, 137 S. Ct. 2309 (2017). Plaintiff states he is separately "suing the Indiana Supreme Court in federal court for relief and damages" and has filed complaints with "local, state, and federal civil rights agencies and offices for various aspects of the damage to me from the Indiana Supreme Court and its retaliation and discrimination."

Following the Indiana Supreme Court's suspension of plaintiff from the practice of law in state court in Indiana for 180 days without automatic reinstatement, plaintiff alleges the United States District Court for the Northern District of Indiana, the United States District Court for the Southern District of Indiana, and the United States District Court for the Northern District of Illinois "simply followed the Indiana Supreme Court down the path of suspending me" and "illegally punishing me in 'comity' with the Indiana Supreme Court." See In the Matter of: Andrew U.D. Straw, No. 1:17-mc-13-TWP-DKL, (S.D. Ind. Mar. 16, 2017) (suspending Mr. Straw from the practice of law before the court), appeal docketed, Andrew U.D. Straw v. United States District Court, No. 17-2523, (7th Cir. July 26, 2017);¹ In the Matter of: Andrew U.D. Straw, No. 1:17-MC-5-TLS, (N.D. Ind. Mar. 21, 2017) (suspending Mr. Straw from the practice of law before the court); In the Matter of Andrew U.D. Straw, An Attorney, No. 17-D-02, (N.D. III. Mar. 17, 2017) (suspending Mr. Straw from the practice of law before the court). Plaintiff contends the three United States District Courts, which all invited plaintiff to submit documents indicating why reciprocal discipline would be unwarranted, did not provide him with proper hearings and "ignore[d]" plaintiff's reasons as to why suspension should not be imposed. Moreover, plaintiff insists the District Courts' actions violated the Takings Clause of the Fifth Amendment by depriving plaintiff of his property rights in his "law licenses." Plaintiff asserts this court has jurisdiction over his takings claims pursuant to 28 U.S.C. § 1491(a)(1). Additionally, plaintiff contends that "under 42 U.S.C. § 12203 and 28 C.F.R. § 35.134 . . . retaliation against ADA cases is illegal and no person may do so under any circumstances, includingany federal judge who is administering the law licensing in a district court." Plaintiff alleges this court has jurisdiction over his ADA retaliation claims under 28 U.S.C. § 1491(a)(2).

On October 10, 2017, defendant filed a motion to dismiss plaintiff's complaint for lack of subject-matter jurisdiction under Rule 12(b)(1) (2017) of the Rules of the United States Court of Federal Claims (RCFC), or, in the alternative, for failure to state a claim upon which relief can be granted under RCFC 12(b)(6). Defendant argues plaintiff "has no constitutionally protected property interest in his admission to practice before any United States district courts" because "[a]dmission to practice before courts is not a transferrable property right subject to compensation pursuant [sic] the Takings Clause" and, also, that Mr. Straw's contention that his suspensions were unwarranted defeats his takings claims because a taking can only occur when the underlying governmental action is valid. Defendant also asserts that this court lacks jurisdiction to review the merits of a District Court decision. Additionally, defendant contends 28 U.S.C. § 1500 "bars this action because Mr. Straw claim [sic] that he was improper [sic] suspended" was pending on appeal when this action was filed.

Plaintiff filed a response to the defendant's motion to dismiss, in which he states that he learned on October 10, 2017, that his Western District of Wisconsin license was suspended, and that he will "seek amendment to add this claim for another $1,000,000, like the others" if his complaint is not dismissed. In response to defendant's argument that this court lacks subject matter jurisdiction over plaintiff's complaint, plaintiff maintains that "the property interest in my law licenses is created through substantive due process because federal law creates these very valuable licenses" and declares "[j]udicial takings are covered by the Fifth Amendment." Plaintiff also asserts that a "that a law license is a fundamental right under the Privileges and Immunities Clause" and that "[i]nfringing that right must be compensated as a Takings."²

As of the date of this opinion, the court has received and reviewed a continuous stream of additional filings from Mr. Straw. These additional filings include a motion for entry of a default judgment by the Clerk of the Court.³ Mr. Straw's other filings appear tobe largely duplicative of statements and allegations raised in plaintiff's earlier response to defendant's motion to dismiss. Overall, they add little, additional, relevant information to assist the court, although the court has reviewed each of the filings.

DISCUSSION

The court recognizes that plaintiff is technically proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976). reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. CI. 516, 524, aff'd, 603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, '"[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading."'" Lengen v. United States, 100 Fed. CI. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed. CI. 285, 293 (1995) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. CI. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. CI. 249, 253 (2007). "While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. CI. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'g and reh'g en banc denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed. CI. 133, 139 (2014) ("[W]hile the court may excuse ambiguities in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures.'" (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed. CI. 290, 292 (2013) ("Although plaintiff's...