Michael Harvey v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL HARVEY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2279
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00229-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: February 3, 2021
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M ICHAEL H ARVEY , Zachary, LA, pro se.
RETA EMMA BEZAK , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
JEFFREY B. CLARK , ROBERT EDWARD K IRSCHMAN , JR.,
FRANKLIN E. WHITE, JR.
______________________
Case: 20-2279 Document: 17 Page: 1 Filed: 02/03/2021

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HARVEY v. UNITED STATES 2
Before O’M ALLEY, C LEVENGER, and TARANTO , Circuit
Judges.
PER C URIAM.
Michael Harvey appeals a judgment of the United
States Court of Federal Claims (“Claims Court”) dismiss-
ing his complaint for lack of jurisdiction and failure to state
a claim. See Harvey v. United States, 149 Fed. Cl. 751
(2020). For the reasons discussed below, we affirm.
I. BACKGROUND
In July 2019, Harvey drafted a document captioned
“Acceptance of the Corporate Offer to Contract With Full
Immunity and Without Recourse.” S.A. 103. The docu-
ment contains an amalgamation of allegations related to
Harvey’s rights and liabilities as a U.S. citizen. More spe-
cifically, in the document, Harvey claims that he is no
longer a citizen of the United States and has suffered
harms against his person by being treated as a citizen even
though he is not. It also contains an arbitration clause,
S.A. 161–65, and purports to be self-executing such that a
failure to respond to the document constitutes “tacit acqui-
escence” to all facts raised in this “binding [and] irrevocable
contractual agreement.” S.A. 160–61. Harvey claims to
have mailed this document to several named parties, in-
cluding the United States Attorney General, the Internal
Revenue Service, the Louisiana Attorney General, the
Commissioner of the Louisiana Division of Administration,
and Hancock Whitney Bank. S.A. 31, 103. Harvey’s is the
only signature that appears on the face of the document.
Harvey then promptly sought arbitration. An arbitra-
tion hearing was held on August 12, 2019 with an arbitra-
tor from Sitcomm Arbitration Association.1 Harvey claims
1 As the Claims Court noted, numerous federal
courts have expressed serious concerns regarding Sitcomm
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HARVEY v. UNITED STATES 3
that the arbitrator awarded $5,158,667.43 in damages for
breach of contract and $54,252,793.54 in additional penal-
ties for each day since the “default of infraction,” S.A. 36–
37, 53, and concluded that Harvey and the named parties
had entered into a legally binding contractual relationship
without fraud or inducement of contract. On August 30,
2019, Harvey sent demand letters to the defendants seek-
ing to enforce the award.
When the parties did not respond to his request, Har-
vey filed suit in the Claims Court on February 27, 2020.
The complaint requests that the court enforce the arbitra-
tion award against the alleged parties—now defendants—
for breach of contract and requests damages for a wide va-
riety of other claims, including violation of copyright, un-
authorized withholding of revenue, refusal to withdraw
federal tax liens, violation of injunction, and breach of fidu-
ciary duty, for a total of $59,411,460.97. It also requests
the removal of federal tax lien notices and correction of his
political status and nationality from American to Louisi-
anan, among other demands.
The government filed a motion to dismiss the case,
which the Claims Court granted on August 20, 2020. It
found that Harvey’s complaint raised certain claims that
are outside the court’s jurisdiction and, as to the remaining
Arbitration Association. See, e.g., Schlihs v. United States,
146 Fed. Cl. 495, 497 n.1 (describing the recurring “tarra-
diddle and lack of clarity” in Sitcomm’s decisions); Penny-
Mac Loan Servs., LLC v. Sitcomm Arb. Ass’n, No. 2:19-CV-
193-KS-MTP, 2020 WL 1469458, at *1–2 (S.D. Miss. Mar.
26, 2020) (noting claims that “Sitcomm is a sham arbitra-
tion organization that uses the guise of legitimacy to mar-
ket itself as an authorized and legitimate arbitration
company . . . . [and] issues fake exorbitant final arbitration
awards against various entities, despite no arbitration
hearing having ever been held”).
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HARVEY v. UNITED STATES 4
allegations, failed to state a claim upon which relief could
be granted.
Harvey timely appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
II. D ISCUSSION
We review legal questions, such as whether a party has
failed to state a claim or whether the Claims Court pos-
sesses jurisdiction over a claim, de novo. Frankel v. United
States, 842 F.3d 1246, 1249 (Fed. Cir. 2016); Biltmore For-
est Broad. FM, Inc. v. United States, 555 F.3d 1375, 1380
(Fed. Cir. 2009). In reviewing subject matter jurisdiction
and deciding a motion to dismiss based on failure to state
a claim, the Claims Court assumes that all uncontroverted
factual allegations in the complaint are true and construes
them in the light most favorable to the non-movant plain-
tiff. Estes Express Lines v. United States, 739 F.3d 689, 692
(Fed. Cir. 2014); Trusted Integration, Inc. v. United States,
659 F.3d 1159, 1163 (Fed. Cir. 2011).
Pro se pleadings “are held to less stringent standards
than formal pleadings drafted by lawyers.” Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (per curiam) (internal quotation
marks omitted). Nevertheless, the leniency afforded to a
pro se litigant does not relieve the litigant of the burden to
meet jurisdictional requirements nor excuse their failures.
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995);
Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380
(Fed. Cir. 1987).
A. Failure to State a Claim
The Claims Court found that Harvey failed to plausibly
allege a contractual agreement with the government in
seeking to enforce the alleged arbitration award. Harvey,
149 Fed. Cl. at 772–73, 776. Courts cannot enforce an ar-
bitration award when the underlying contract containing
the arbitration clause is invalid. See First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 947 (1995); cf. Henry Schein,
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HARVEY v. UNITED STATES 5
Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019)
(reaffirming that courts have the authority to determine
whether a valid arbitration agreement exists before refer-
ring a dispute to an arbitrator). A plaintiff may establish
privity of contract with the United States Government
through an express or implied-in-fact contract. Trauma
Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir.
1997). To do so, a plaintiff must show “mutual intent to
contract including an offer, an acceptance, and considera-
tion,” and, when the United States is an alleged party, that
the government representative who entered into or ratified
the agreement had actual authority to bind the govern-
ment in contract. Id.
On appeal, Harvey argues that the Claims Court had
no authority to question the existence of a contract between
himself and the United States and, instead, was required
to unquestioningly order payment to Harvey in the amount
he demanded. Appellant’s Inf. Br. at 4; S.A. 34, ¶ 26. This
is incorrect. Like other contracts, arbitration agreements
must be enforced according to the intentions of the parties
and other ordinary state-law principles. First Options, 514
U.S. at 944, 947. Here, those considerations reveal that the
government did not intend to submit to arbitration and,
moreover, that it did not intend to enter into any contract
at all. Although Harvey attaches several documents to his
complaint, nothing in his complaint or in the purported
agreement demonstrates that a valid contract existed be-
tween Harvey and the United States. There is no evidence
of any mutual intent to form an enforceable contract; there
is no signature by an authorized representative of the
United States; there is no allegation of consideration. For
arbitration contracts—as for any other contract—non-par-
ties are not bound. Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83 (2002); Datatreaury Corp. v. Wells Fargo &
Co., 522 F.3d 1368, 1372 (Fed. Cir. 2008). The arbitrator’s
determination that an agreement existed is dubious and
unsubstantiated. Although Harvey insists that the
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HARVEY v. UNITED STATES 6
government’s silence equated to “tacit acquiescence,” mere
repetition does not make it so. A court cannot enforce an
arbitration award when no valid contract existed.2
The Claims Court correctly found that nothing in the
contract or the allegations of the complaint demonstrates
that a contract even exists between Harvey and the United
States, let alone an enforceable arbitration award. Harvey,
149 Fed. Cl. at 768–76. We affirm the Claim Court’s deci-
sion to dismiss Harvey’s contract claims for failure to state
a claim.
B. Lack of Jurisdiction
The Claims Court determined that it lacked jurisdic-
tion over Harvey’s other claims. Id. at 772. Specifically, it
noted that it lacks jurisdiction over (1) claims against de-
fendants other than the United States, (2) claims that
sound in tort, and (3) criminal claims.
First, the Claims Court held that it lacks jurisdiction
over Harvey’s claims against non-U.S. defendants. Id. at
765–66. Its holding was correct. The Claims Court lacks
jurisdiction over claims against states, localities, and state
and local government entities, as well as over claims
against private parties; its jurisdiction only extends to
suits against the United States itself. United States v.
Sherwood, 312 U.S. 584, 588 (1941). Harvey provides no
explanation of how the Claims Court has jurisdiction over
his claims against the State of Louisiana, certain agencies
of that state, or a private bank. The Claims Court correctly
2 As the Claims Court found, moreover, the alleged
arbitration award is incomprehensible, lacks clarity, and
contains no specific factual findings or legal conclusions;
enforcing such an order would be impossible. Harvey, 149
Fed. Cl. at 774.
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HARVEY v. UNITED STATES 7
determined that those claims fall outside the court’s juris-
diction.
Second, to the extent that Harvey’s complaint raises al-
legations of fraud, conspiracy, harassment, and breach of
fiduciary duty, the Claims Court found these claims fall
outside the court’s jurisdiction. Harvey, 149 Fed. Cl. at
766–67. We agree. The Tucker Act specifically excludes
claims “sounding in tort” from the jurisdiction of the
Claims Court. 28 U.S.C. § 1491(a)(1); see also Keene Corp.
v. United States, 508 U.S. 200, 214 (1993).
Third, as to Harvey’s claims that the government en-
gaged in criminal misconduct, the Claims Court correctly
found that it lacks jurisdiction over criminal causes of ac-
tion. Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir.
1994).
III. CONCLUSION
We have considered the remainder of Harvey’s argu-
ments, but find them unpersuasive. For the reasons dis-
cussed above, the Claims Court properly dismissed this
case. Accordingly, we affirm the decision of the Claims
Court.
AFFIRMED
COSTS
Costs to Appellee.
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