Ballard v. United States , 680 F. App'x 1007 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK WAYNE BALLARD,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2167
______________________
Appeal from the United States Court of Federal
Claims in Nos. 1:15-cv-00723-SGB, 1:15-cv-00799-SGB,
Judge Susan G. Braden.
______________________
Decided: March 14, 2017
______________________
MARK WAYNE BALLARD, Marianna, FL, pro se.
MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM, AMELIA LISTER-SOBOTKIN.
______________________
2 BALLARD v. US
Before PROST, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
PER CURIAM.
Mark Wayne Ballard appeals a final decision of the
United States Court of Federal Claims (“COFC”). The
COFC correctly dismissed Mr. Ballard’s case for want of
jurisdiction. We therefore affirm.
BACKGROUND
Mr. Ballard and Monte Little Coyote were incarcer-
ated at the Federal Correctional Institution in Marianna,
Florida after pleading guilty to criminal offenses. Acting
pro se, they each brought several claims against the
United States government at the COFC. Their com-
plaints were consolidated.
Ballard and Coyote alleged that their indictments by
the government resulted in violations of the Commerce
Clause, the Due Process Clauses, and the Takings Clause
of the U.S. Constitution; the Administrative Procedures
Act, 5 U.S.C. § 551 et seq.; the Fort Laramie Treaty of
1851, 11 Stat. 749; and the Fort Laramie Treaty of 1868,
15 Stat. 649. They also alleged that the U.S. government
purportedly threatened to withhold federal funding unless
an increased amount of “Indian cases” were submitted for
federal indictment. Further, they argued that the U.S.
government improperly used federal funds to require the
Cherokee tribe to relinquish certain treaty rights. See
S.A. 3−5, 17−20, 24−26.
The government filed a motion to dismiss for lack of
jurisdiction and failure to state a claim. After opposing
the government’s motion, the plaintiffs moved to amend
their complaint. The amended complaint raised allega-
tions of wrongful imprisonment and restraint by various
federal employees that took place throughout their in-
dictment, prosecution, and incarceration. The plaintiffs
claimed that these offenses violated the “bad men” provi-
BALLARD v. US 3
sion of the 1868 Fort Laramie Treaty, supra; the Racket-
eering and Corrupt Organizations Act, 18 U.S.C. 1962;
the Ex post Facto Clause of the U.S. Constitution; and the
Sixth, Eighth, and Fourteenth Amendments of the U.S.
Constitution. A6−7, 12−16.
The COFC granted the government’s motion to dis-
miss, finding that it lacks jurisdiction to adjudicate the
plaintiffs’ claims. Mr. Ballard appeals. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo a COFC decision to dismiss for
lack of jurisdiction. Banks v. United States, 741 F.3d
1268, 1275 (Fed. Cir. 2014). As the COFC recognized, pro
se filings are to be liberally construed, but that does not
alleviate plaintiffs’ burden to establish jurisdiction. Col-
bert v. United States, 617 F. App’x 981, 983 (Fed. Cir.
2015); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d
746, 748 (Fed. Cir. 1988).
Pursuant to the Tucker Act, the COFC has limited ju-
risdiction to resolve certain claims against the United
States that are “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.” 28 U.S.C. § 1491. But the Tucker Act
does not create any substantive right of action against the
United States. United States v. Testan, 424 U.S. 392, 398
(1976). Plaintiffs must identify and plead an independent
contractual relationship, constitutional provision, federal
statute, or executive agency regulation that provides a
substantive right to money damages. See Todd v. United
States, 386 F.3d 1091, 1094 (Fed. Cir. 2004). The source
of substantive law must mandate compensation by the
federal government; it must be “money mandating.”
Testan, 424 U.S. at 400.
4 BALLARD v. US
The COFC properly held that it lacks jurisdiction to
address claims based on the Commerce Clause, Ex post
Facto Clause, Due Process Clauses, and the Administra-
tive Procedure Act. None of those contain money-
mandating provisions that can be enforced against the
government by a private party. 1 To the extent that the
Fort Laramie Treaties contain money-mandating provi-
sions, the COFC correctly recognized that those mandates
have long-since expired. While the Fifth Amendment
Takings Clause can serve as a substantive cause of action
against the government, the COFC correctly held that it
lacks jurisdiction in this case because the complaint failed
to allege any “injury in fact,” which is a prerequisite to
establishing standing to bring a takings claim. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180−81 (2000). With respect to claims included
in the amended complaint alleging wrongful imprison-
ment and restraint by federal officials during plaintiffs’
indictment, prosecution, and incarceration, the COFC
correctly held that, absent a certificate of innocence or
pardon, it lacks jurisdiction over matters stemming from
criminal claims. See Freeman v. United States, F. App’x
892, 894 (Fed. Cir. 2014); see also Joshua v. United States,
17 F.3d 378, 379 (Fed. Cir. 1994).
This court generally declines to review issues raised
for the first time on appeal. See Sage Prod., Inc. v. Devon
Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). To the
extent Mr. Ballard now argues that a separate cause of
action brought by a third party could provide the COFC
with jurisdiction over his case, those arguments are
1 See, e.g., Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 227 (1974); Atlas Corp. v. United
States, 15 Cl. Ct. 681, 691 (1988), aff’d, 895 F.2d 745 (Fed.
Cir. 1990); Wopsock v. Natchees, 454 F.3d 1327, 1333
(Fed. Cir. 2006).
BALLARD v. US 5
waived, and unpersuasive in any event. Finally, to the
extent Mr. Ballard requests transfer pursuant to 28
U.S.C. § 1631, that provision provides the court discretion
to transfer in the interest of justice. We are not persuaded
that transferring this case is in the interest of justice.
For the reasons explained above, the COFC correctly
dismissed the claims for lack of jurisdiction. We therefore
affirm.
AFFIRMED
COSTS
Each party will bear its own costs.