Straw v. United States ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW U.D. STRAW, FOR HIMSELF, AND AS
EXECUTOR OF, THE ESTATE OF SANDRA KAY
ISAACS STRAW STEVENS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2114
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00560-EGB, Senior Judge Eric G.
Bruggink.
______________________
Decided: September 11, 2017
______________________
ANDREW U.D. STRAW, Schaumburg, IL, pro se.
ALEXIS J. ECHOLS, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
______________________
2 STRAW v. UNITED STATES
Before MOORE, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
Andrew U.D. Straw appeals an order of the U.S.
Court of Federal Claims denying his motion for leave to
file an amended complaint. The Court of Federal Claims
dismissed Mr. Straw’s complaint for lack of subject matter
jurisdiction, and subsequently denied his motion for leave
to file an amended complaint. Because the Court of
Federal Claims did not err in concluding that Mr. Straw
failed to allege a deprivation of any legally cognizable
property interests under the Fifth Amendment, and did
not abuse its discretion by denying Mr. Straw’s motion for
leave to amend his complaint, we affirm.
I
Mr. Straw alleges that he was exposed to toxic chemi-
cals when his father was stationed at the Naval Air
Station Jacksonville, Florida. According to his amended
complaint, Mr. Straw’s father repaired helicopters at the
air station, where he was exposed to toxic chemicals in
helicopter fuel and cleaning fluids. Mr. Straw’s mother
was also purportedly exposed to harmful chemicals while
pregnant with Mr. Straw because she cleaned and main-
tained his father’s uniform. The complaint asserts that
Mr. Straw’s chemical exposure in utero caused various
ailments for him and his family.
On April 20, 2017, Mr. Straw filed a complaint in the
Court of Federal Claims seeking compensation for dam-
ages suffered by him and his family members.
Mr. Straw’s initial complaint invoked the Fifth and Ninth
Amendments, and argued the court had jurisdiction under
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 391 (1971). The court dismissed
Mr. Straw’s complaint sua sponte because he failed to
state a claim under the Tucker Act or a takings claim
STRAW v. UNITED STATES 3
under the Fifth Amendment. Instead, the court concluded
that Mr. Straw’s complaint sounded in tort, which is
specifically excluded from the court’s jurisdiction.
After the Court of Federal Claims dismissed his case,
Mr. Straw moved for leave to amend his complaint.
Mr. Straw again asserted a property interest in his bodily
integrity, which the government purportedly deprived by
exposing him to toxic compounds. Appx. 015-18.
Mr. Straw also claimed that the government violated an
implied contract with his father by exposing him to toxic
compounds and failing to warn his family about the
potential adverse health effects.
The Court of Federal Claims denied Mr. Straw’s mo-
tion for leave to amend. The court again found that
Mr. Straw failed to plead a compensable taking under the
Fifth Amendment. In doing so, the court explained that
Mr. Straw’s allegation that the government harmed him
and his family is based in tort, even if it is framed as a
takings claim. The court also dismissed Mr. Straw’s
contractual claims because they are based on an alleged
contract implied-in-law that is not within the Court’s
jurisdiction.
Mr. Straw appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
II
“The question of whether a complaint was properly
dismissed for failure to state a claim upon which relief
could be granted is one of law, which we review inde-
pendently.” Highland Falls–Fort Montgomery Cent. Sch.
Dist. v. United States, 48 F.3d 1166, 1170 (Fed. Cir. 1995)
(citing Gould, Inc. v. United States, 935 F.2d 1271, 1273
(Fed. Cir. 1991)). We review the court’s denial of the
motion for leave to amend for abuse of discretion. Renda
Marine, Inc. v. United States, 509 F.3d 1372, 1379 (Fed.
Cir. 2007).
4 STRAW v. UNITED STATES
The Fifth Amendment guarantees compensation if
private property is taken for public use. U.S. Const.
Amend. V. Mr. Straw asserts that the military deprived
him of bodily integrity, a property interest, by exposing
his parents to toxic chemicals.
We are not aware of any case that establishes a
property interest in freedom from bodily harm. Mr. Straw
cites Horne v. Department of Agriculture, 135 S. Ct. 2419(2015), and Scott v. Sanford, 60 U.S. 393 (1857), to argue
that human beings are personal property. Neither case
supports his position. The Supreme Court in Horne held
that the government has a duty under the Fifth Amend-
ment to pay just compensation whenever it takes personal
or real property. 135 S. Ct. at 2425. Horne does not
support the notion that injuring someone constitutes a
taking under the Fifth Amendment. And Scott was
overturned by the abolishment of slavery in the Thir-
teenth Amendment. Therefore, despite Mr. Straw’s
attempt to characterize his claims as involving a property
interest, they are ultimately premised on the govern-
ment’s alleged breach of its duty not to harm Mr. Straw or
his parents. Such claims are based in tort, not property.
Accordingly, Mr. Straw failed to plead a takings claim
under the Fifth Amendment.
Next, we turn to Mr. Straw’s claim that the govern-
ment breached an implied contractual obligation to pre-
vent his father’s exposure to toxic compounds, and to
warn his family of potential adverse health effects after
exposure. The Supreme Court has held that the Tucker
Act confers jurisdiction on contracts implied-in-fact, but
not to contracts implied-in-law. Hercules Inc. v. United
States, 516 U.S. 417, 423 (1996). A contract implied-in-
fact is “founded upon a meeting of minds, which, although
not embodied in an express contract, is inferred, as a fact,
from conduct of the parties showing, in the light of the
surrounding circumstances, their tacit understanding.”
Id. at 424 (quoting Baltimore & Ohio R. Co. v. United
STRAW v. UNITED STATES 5
States, 261 U.S. 592, 597 (1923)). “By contrast, an agree-
ment implied in law is a ‘fiction of law’ where ‘a promise is
imputed to perform a legal duty . . . .’” Id. (internal
citations omitted).
Here, Mr. Straw claims the Marine Corps had a duty
to protect service members and their dependents. Specifi-
cally, Mr. Straw cites to provisions of the Uniform Code of
Military Justice, which makes certain conduct punishable
by court-martial. See, e.g., 10 U.S.C. § 919a (a)(1). But a
duty imposed by federal law not to harm service members
and their families, at best, can only be construed as a
contract implied-in-law. As the Court of Claims ex-
plained, the Tucker Act does not confer jurisdiction over
such claims.
On appeal, Mr. Straw argues the military and Con-
gress made “actions and representations” that created a
contract implied-in-fact. But Mr. Straw failed to plead
any facts that, if accepted as true, would plausibly sup-
port such an implied agreement. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In his amended complaint,
Mr. Straw cites only to the Uniform Code of Military
Justice for his breach of contract claim. Nothing in the
pleadings supports a plausible contractual claim against
the government.
Because the Court of Federal Claims properly dis-
missed Mr. Straw’s complaint and did not abuse its dis-
cretion by denying his motion for leave to amend, we
affirm.
AFFIRMED
No costs.