United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION RE: DISMISSAL
Page Kelley United States Magistrate Judge.
complaint in this case was filed on June 15, 2018. (#1.) On
August 2, 2018, plaintiff requested that the U.S. marshal or
deputy marshal be ordered to serve summonses on three of the
four named defendants. (#7.) On September 17, 2018, the court
issued the following Order:
Plaintiff's motion for extension is GRANTED to the extent
that the time within which service must be effectuated is
extended to October 19, 2018. If at that time plaintiff has
been unable to serve process by other means provided in Rule
4, Diaz shall file with the court a detailed explanation of
the steps he undertook to effectuate service of process of
the defendants. Based on the content of that filing, the
court will consider whether the circumstances warrant issuing
an order to the marshal or deputy marshal to serve process
pursuant to Rule 4(c)(3), Federal Rules of Civil Procedure.
#15 at 3-4. Nothing has been filed in this case since
September 2018. There is no indication on the docket that
service has been effectuated, and plaintiff has not responded
to the court's Order (#15).
RECOMMEND that the complaint be DISMISSED because plaintiff
has failed to effectuate service in a timely manner.
is another reason why this matter should be dismissed. The
court notes that in the complaint, plaintiff alleges that he
“has jurisdiction and standing in his case under the
Tucker Act 28 U.S.C. § 1491, Administrative Procedure
Act (APA) 5 U.S.C. §§ 551, 702 (1994).” (#1
¶ 12.) Plaintiff seeks $1, 400, 000.00 in damages for
various claims. Id. at pp. 54-55.
United States, its agencies and its employees acting in their
official capacities can only be sued for damages if the
United States has explicitly waived its sovereign immunity.
United States v. Bormes, 568 U.S. 6, 9 (2012)
(internal citations and quotation marks omitted);
(“Sovereign immunity shields the United States from
suit absent a consent to be sued that is unequivocally
expressed.”) United States v. Mitchell, 445
U.S. 535, 538 (1980) (citations omitted) (“It is
elementary that “[t]he United States, as sovereign, is
immune from suit save as it consents to be sued . . ., and
the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.”);
Paret-Ruiz v. United States, 827 F.3d 167, 176 (1st
Cir. 2016); Merlonghi, 620 F.3d at 54 (“The
United States as a sovereign can be haled into court only if
it consents to be sued.”).
Tucker Act vests jurisdiction in the Court of Federal Claims
“upon 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.” 28
U.S.C. § 1491(a)(1); Horne v. Dep't of
Agriculture, 569 U.S. 513, 526-27 (2013). The statute
Both the Unite[d] States Court of Federal Claims and the
district courts of the United States shall have jurisdiction
to render judgment on an action by an interested party
objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or
the award of a contract or any alleged violation of statute
or regulation in connection with a procurement or a proposed
procurement. Both the United States Court of Federal Claims
and the district courts of the United States shall have
jurisdiction to entertain such an action without regard to
whether suit is instituted before or after the contract is
28 U.S.C.A. § 1491(b)(1). At this point in time,
“[t]he Court of Federal Claims thus has exclusive
jurisdiction over Tucker Act claims exceeding $10,
000.” Paret-Ruiz, 827 F.3d at 176 n.16 (citing
United States v. Hohri, 482 U.S. 64, 72 (1987)
(“Tucker Act claims for more than $10, 000 may be
brought only in the United States Claims Court.”)).
provides in relevant part that:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking
relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the
United States is an indispensable party.
5 U.S.C. § 702. By its terms, the statute excludes cases
seeking monetary damages from court review. Because plaintiff
seeks money damages, the APA does not afford the court
jurisdiction over his claim. Sibley v. Ball, 924
F.2d 25, 29 (1st Cir. 1991); Leeper v. Viola, No.
17-CV-10185-NMG, 2017 WL 2837007, at *1 (D. Mass. June 30,
2017) (“Nor does the Administrative Procedure Act, 5
U.S.C. § 702, provide a cause of action for suits
seeking monetary damages.”); Arruda & Beaudoin,
LLP v. Astrue, No. CIV.A. 11-10254-GAO, 2013 WL 1309249,
at *15 (D. Mass. Mar. 27, 2013); Leveris, 249
F.Supp.2d at 3 (“After Sibley, I can only
conclude that [plaintiff] has made a request for money
judgment for which this court has no jurisdiction under the
APA . . . .”).
also limits review of agency action to cases in which
“there is no other adequate remedy in a court.” 5
U.S.C. § 704; Bowen v. Massachusetts, 487 U.S.
879, 903 (1988) (“When Congress enacted the APA to
provide a general authorization for review of agency action
in the district courts, it did not intend that general grant
of jurisdiction to duplicate the previously established
special statutory procedures relating to specific
agencies.”). It appears plaintiff has an adequate
remedy of bringing his claims in the Court of Federal Claims.
See American Science & Engineering, Inc. v.
Califano, 571 F.2d 58, 62 (1st Cir. 1978) (citations
omitted) (“The very language of § 704 of the APA
belies plaintiff's claim. It provides for court review of
agency action ‘for ...