Moore v. United States

           In the United States Court of Federal Claims
                                          No. 22-1320

                                    (Filed: December 16, 2022)


                                              )       Request for appointment of counsel;
 CHRISTOPHER MOORE,                           )       request for class certification; improper
                                              )       reliance on treaties with Indian tribes as a
                       Plaintiff,             )       basis for jurisdiction over monetary
                                              )       claims
 v.                                           )
                                              )
 THE UNITED STATES,                           )
                                              )
                       Defendant.             )
                                              )
                                              )

       Christopher Moore, pro se, Helena, Oklahoma.

       Igor Helman, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the brief
and pleadings were Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil
Division, and Patricia M. McCarthy, Director, and Eric P. Bruskin, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
D.C.

                                    OPINION AND ORDER

        Plaintiff, Christopher Moore, filed suit against the United States on September 16, 2022,
seeking relief from Oklahoma state criminal laws and child custody laws as a member of the
Choctaw/Chickasaw Nation. See Compl. at 1, EFC No. 1. 1 Plaintiff is proceeding pro se and is
incarcerated at the James Crabtree Correctional Center in Oklahoma. Compl. at 1. Mr. Moore
alleges that his incarceration under Oklahoma state law for an alleged crime on a reservation
violates his Choctaw/Chickasaw Nations’ treaty rights. See Compl. at 1-3. He petitions the
court for a writ of mandamus to address Oklahoma authorities prosecuting, convicting, and
incarcerating members of Native American tribes without criminal jurisdiction. Compl. at 1. He
seeks 100 dollars per day of his allegedly wrongful detention and incarceration in compensatory
damages, 300,000 dollars for “loss of income and alienation of affections, attorneys’ fees, [and]
costs of this litigation,” and one million dollars in “punitive damages for ongoing violation of


       1
         Plaintiff states in his complaint that he has been subject to Oklahoma’s child custody
laws but does not provide additional details or related allegations. See Compl. at 1-4. Therefore,
the court does not address these laws in its analysis.
treaty” rights. Compl. at 3. In his complaint, plaintiff also requests appointment of counsel and
class certification. Compl. at 3.

        On October 12, 2022, the court granted plaintiff’s October 11, 2022 motion to proceed in
forma pauperis (IFP). ECF No. 7; ECF No. 8. 2 On October 20, 2022, the government filed a
motion to dismiss pursuant to Rule 12(b)(1), contending that the court did not have subject-
matter jurisdiction. Def.’s Mot. to Dismiss, ECF No. 10. On November 17, 2022, plaintiff filed
a motion to amend pleadings, ECF No. 12, to which the government responded on December 1,
2022, ECF No. 13. Plaintiff did not file a reply to the government’s response.

                                       DISCUSSION

       1. Appointment of Counsel

        Mr. Moore requests that the court appoint counsel pursuant to 

 and
Maclin v. Freake, 

 (7th Cir. 1981). Compl. at 3. When plaintiff in an IFP case
requests appointment of counsel under 

, 3 

(e)(1) governs his
request. Greene v. United States, No. 22-1064, 

, at 1 (Fed. Cl. Dec. 9, 2022).
Section 1915(e)(1) states that “[t]he court may request an attorney to represent any person unable
to afford counsel.” While this court has the power to appoint counsel under § 1915(e)(1), in civil
cases courts should only appoint counsel in particular circumstances, i.e., those “that present an
extreme hardship to petitioner.” Washington v. United States, 

 (2010).

        The Supreme Court has indicated that appointment of counsel under 1915(e)(1) in civil
cases “may be appropriate when quasi-criminal penalties or severe civil remedies are at stake,
such as those in a civil commitment proceeding or when an indigent risks losing his or her child
in a custody case.” See Washington, 

 (citing Vitek v. Jones, 

, 496-
97 (1980) (civil commitment); Lassiter v. Dep’t of Soc. Servs., 

 (1981) (child
custody)). The Court, however, “refus[ed] to grant counsel to all child custody cases involving
indigent parents,” emphasizing the extremely high bar for counsel to be appointed. See
Washington, 

. The Federal Circuit generally has appointed counsel only in
cases that involve potential deprivation of liberty. Wright v. United States, 

 (Fed. Cir. 2017). An indigent litigant is presumed to have a right to appointed counsel only
when his physical liberty is at stake of being deprived if he loses. Lassiter, 

.
Even when this presumption applies, it must be weighed against the results of balancing “the
private interest at stake, the government’s interest, and the risk that the procedures used will lead

       2
         On September 16, 2022, plaintiff filed his initial a motion to proceed IFP. ECF No. 2.
On September 20, 2022, the court directed plaintiff to complete the appropriate IFP application
with supporting documentation. ECF No. 6. On October 11, 2022, Mr. Moore filed a motion
with a completed IFP application and supporting documentation, which the court granted. ECF
No. 7; ECF No. 8.
       3
          Section 175 states that “[i]n all States and Territories where there are reservations or
allotted Indians the United States attorney shall represent them in all suits at law and in equity.”

.


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to erroneous decisions.” Id.at 27 (discussing fundamental fairness under procedural due process)
(citing Mathews v. Eldridge, 

 (1976)).

        Here, Mr. Moore seeks monetary damages. 4 In the circumstances at hand, if the court
were to deny Mr. Moore’s request for monetary damages, his criminal sentence—including its
length—would not be affected. Therefore, his physical liberty is not at risk of being further
deprived if he loses, and the presumption to the right to appointed counsel does not apply.
Plaintiff’s interest in monetary damages does not rise to the level of extreme hardship and
therefore appointment of counsel is not warranted under 

(e)(1), and in turn 

. See Greene, 

 at *2. Plaintiff’s request for appointment of
counsel under Maclin, 

, is not applicable because this court is “bound by the
Federal Circuit’s standard, which focuses only on whether the moving party’s liberty is at stake.”
Greene, 

 *3 (citing Wright, 

). 5

       2. Class Certification

        The requirements for class certification are numerosity, commonality, adequacy, and
superiority. RCFC 23(a). Because the plaintiff is pro se and does not have legal training,
plaintiff does not satisfy the adequacy requirement. See Greene, 

, at *4.
Therefore, the request for class certification is denied.

       3. Lack of Jurisdiction

      Defendant contends that Mr. Moore has failed to identify a statute that entitles him to
money damages. Def.’s Mot. to Dismiss at 3.6

         The Tucker Act provides this court with jurisdiction over “any 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.” 

(a)(1). To
establish this court’s jurisdiction under the Tucker Act, plaintiff must “identify a substantive
right for money damages against the United States separate from the Tucker Act itself.” Todd v.
United States, 

 (Fed. Cir. 2004). Pleadings of pro se plaintiffs are held to a
less stringent standard, but they still must establish that the court has jurisdiction. See Kelley v.
Sec’y, U.S. Dep’t of Labor, 

 (Fed. Cir. 1987). When ruling on the

       4
         Plaintiff also seeks a writ of mandamus, which the court does not have jurisdiction to
grant. See infra at 3. It is therefore not considered in the court’s analysis of appointment of
counsel.
       5
         In addition, the abrogation of Maclin was recognized by Greeno v. Daley, 

 (7th Cir. 2005).
       6
         Plaintiff seeks a writ of mandamus to direct Oklahoma government officials to act,
Compl. at 1, but the court lacks jurisdiction to issue such a writ. See Del Rio v. United States, 

 (2009).


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government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor
of the plaintiff.” See Trusted Integration, Inc. v. United States, 

 (Fed. Cir.
2011) (citing Henke v. United States, 

 (Fed. Cir. 1995)).

         Mr. Moore has failed to identify a source of law that entitles him to money damages. The
treaties that plaintiff cites, the 1830 Treaty of Dancing Rabbit Creek, the 1837 Treaty of
Doaksville, and the 1866 Treaty of the Choctaws and Chickasaws, do not contain money-damage
provisions. The Treaty of Dancing Rabbit Creek states that “no Territory or State shall ever have
a right to pass laws for the government of the Choctaw nation.” 

, art. 4 (1830). The
Treaty of Doaksville in turn grants the rights enumerated in the Treaty of Dancing Creek Rabbit
to the Chickasaws. Compl. at 2. In addition, the Treaty of the Choctaws and Chickasaws states
that Choctaw or Chickasaw people and people who marry members of the Choctaw or
Chickasaw Nation are subject to the laws of the Choctaw and Chickasaw Nations, including their
prosecution, trial and punishment. 

, art. 38 (1866). Although the Treaty of Dancing
Rabbit Creek and the Treaty of Doaksville could be read to protect members of the Choctaw and
Chickasaw Nations from state laws, they do not have clauses that authorize money damages and
therefore the court lacks jurisdiction.

                                         CONCLUSION

        The court therefore DENIES Mr. Moore’s requests for appointment of counsel and class
certification and GRANTS the government’s motion to dismiss for lack of subject-matter
jurisdiction. Accordingly, the Clerk shall dismiss Mr. Moore’s complaint.

       No costs.

       It is so ORDERED.

                                             s/ Charles F. Lettow
                                             Charles F. Lettow
                                             Senior Judge




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