Taylor v. United States , 590 F. App'x 983 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERYL TAYLOR,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5068
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00467-MBH, Judge Marian Blank
Horn.
______________________
Decided: November 12, 2014
______________________
SHERYL TAYLOR, of Memphis, Tennessee, pro se.
DOUGLAS G. EDELSCHICK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 TAYLOR v. US
Before PROST, Chief Judge, MAYER, and LOURIE, Circuit
Judges.
PER CURIAM.
Sheryl Taylor appeals from a final judgment of the
United States Court of Federal Claims dismissing her
complaint. See Taylor v. United States, 114 Fed. Cl. 185,
189 (Fed. Cl. 2014) (“Court of Federal Claims Decision”).
We affirm.
BACKGROUND
Taylor was employed as a computer specialist with
the Internal Revenue Service (“IRS”). In April 2011, she
was removed from her position for: (1) failure to follow
managerial direction; (2) failure to abide by established
leave procedures; and (3) absence without leave. See
Taylor v. Merit Sys. Prot. Bd., 527 F. App’x 970, 972-74
(Fed. Cir. 2013) (“Taylor I”). Taylor appealed to the Merit
Systems Protection Board (“board”), arguing that she had
been removed in retaliation for protected whistle-blowing
activity. * Id. at 971. The board, however, dismissed her
* In addition, Taylor filed a formal Equal Employ-
ment Opportunity (“EEO”) complaint with the IRS, alleg-
ing that her removal was the result of race, sex, disability,
and age discrimination. See Taylor v. Merit Sys. Prot.
Bd., 544 F. App’x 973, 974 (Fed. Cir. 2013) (“Taylor II”).
In December 2011, the IRS issued a final decision which
concluded that there was no discrimination relating to
Taylor’s removal. Id. Taylor appealed to the board, but it
dismissed her appeal as untimely filed. Id. at 975. Taylor
then appealed to this court. We dismissed her appeal,
explaining that we had no authority to consider a “mixed
case appeal that the Board resolves either on the merits
or on procedural grounds,” and that “review of the under-
lying EEO decision” was “a matter clearly beyond our
jurisdiction.” Id. at 976.
TAYLOR v. US 3
appeal for lack of jurisdiction. It concluded that it had no
authority to consider Taylor’s appeal because she had
failed to exhaust her administrative remedies and had
provided no evidence that she made a disclosure protected
under the Whistleblower Protection Act, 5 U.S.C.
§ 2302(D).
Taylor then appealed to this court, raising the “sole
issue” of whether the board had “wrongly denied her
multiple requests for appointment of counsel.” Taylor I,
527 F. App’x at 972. We held that Taylor had no constitu-
tional right to appointed counsel, explaining that the
right to counsel “is usually limited to criminal cases, and
generally applies to civil cases . . . only when an indigent
party’s liberty is potentially threatened.” Id.
In July 2013, Taylor filed a complaint in the United
States Court of Federal Claims seeking injunctive and
declaratory relief and damages of “$50,000 or more” from
the United States and the chairperson of the Equal Em-
ployment Opportunity Commission. She alleged that the
government violated the First, Fifth, and Fourteenth
Amendments when it failed to provide her with an attor-
ney, and that she had suffered “mental anguish” and “loss
of property” as a result of the government’s “negligence.”
Taylor further alleged that she was entitled “to recover
just compensation for the Government’s taking of federal
funds and the denial of counsel without due process.”
Court of Federal Claims Decision, 114 Fed. Cl. at 189.
The Court of Federal Claims dismissed Taylor’s com-
plaint. It held that it had no jurisdiction over her negli-
gence claims or her due process claims, explaining that
the Due Process Clauses of the Fifth and Fourteenth
Amendments are not money-mandating provisions. Id. at
195. The court further held that Taylor’s complaint did
not contain a viable Fifth Amendment takings claim
because she did “not allege that the government took
anything from her at all, much less a valid property
4 TAYLOR v. US
interest.” Id. at 198; see Adams v. United States, 391 F.3d
1212, 1218 (Fed. Cir. 2004) (emphasizing that a Fifth
Amendment takings claim requires the plaintiff to show
that the government took a cognizable private property
interest without just compensation).
Taylor then filed a timely appeal with this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
The Court of Federal Claims is a court of limited ju-
risdiction. Under the Tucker Act, 28 U.S.C. § 1491(a), it
has authority over claims for money damages against the
United States based on sources of substantive law that
“can fairly be interpreted as mandating compensation by
the Federal Government.” United States v. Navajo Na-
tion, 556 U.S. 287, 290 (2009) (citations and internal
quotation marks omitted); see also United States v.
Testan, 424 U.S. 392, 398-402 (1976) (explaining that the
Tucker Act confers jurisdiction only where a separate
constitutional provision, statute, or regulation creates a
substantive right to recover money damages from the
United States).
As the Court of Federal Claims correctly concluded, it
was without jurisdiction to consider Taylor’s claims
alleging that the government’s failure to provide her with
an attorney violated the Due Process Clauses of the Fifth
and Fourteenth Amendments. See Court of Federal
Claims Decision, 114 Fed. Cl. at 195-96. It is firmly
established that those constitutional provisions do not
create a substantive right to money damages from the
government. See LeBlanc v. United States, 50 F.3d 1025,
1028 (Fed. Cir. 1995) (“[T]he Due Process Clauses of the
Fifth and Fourteenth Amendments [and] the Equal
Protection Clause of the Fourteenth Amendment” do not
provide “a sufficient basis for jurisdiction because they do
not mandate payment of money by the government.”); see
also Crocker v. United States, 125 F.3d 1475, 1476 (Fed.
TAYLOR v. US 5
Cir. 1997); Carruth v. United States, 627 F.2d 1068, 1081
(Fed. Cir. 1980). Nor did the Court of Federal Claims
have jurisdiction to consider Taylor’s First Amendment
claims. “That amendment merely forbids Congress from
enacting certain types of laws; it does not provide persons
aggrieved by governmental action with an action for
damages in the absence of some other jurisdictional
basis.” United States v. Connolly, 716 F.2d 882, 887 (Fed.
Cir. 1983) (en banc).
The trial court was likewise without authority to con-
sider Taylor’s claim that the government acted negligent-
ly when it failed to appoint an attorney to represent her.
The plain language of the Tucker Act excludes tort claims.
See 28 U.S.C. § 1491(a)(1). Because negligence claims
sound in tort, see Rick’s Mushroom Serv., Inc. v. United
States, 521 F.3d 1338, 1343 (Fed. Cir. 2008), the Court of
Federal Claims is without jurisdiction to consider them.
See Keene Corp. v. United States, 508 U.S. 200, 214
(1993).
On appeal, Taylor’s principal argument is that be-
cause she does not have “the legal expertise to litigate a
complex civil action,” the government was obligated to
“appoint or assign counsel to [her] by releasing its federal
funds.” We do not find this argument persuasive. As we
explained in Taylor I, an employee appealing an agency’s
removal action “has no constitutional right to appointed
counsel.” 527 F. App’x at 972. While the Sixth Amend-
ment guarantees a criminal defendant the right to an
attorney, a civil litigant has that right only in exceptional
circumstances, such as when his personal “liberty is
potentially threatened.” Id.; see Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27-34 (1981) (holding that indigent
plaintiffs facing child custody termination proceedings
may be entitled to court-appointed counsel); Pitts v.
Shinseki, 700 F.3d 1279, 1283 (Fed. Cir. 2012) (emphasiz-
ing that the right to counsel generally does not attach in
civil cases where there is no potential deprivation of a
6 TAYLOR v. US
personal liberty interest); Arnesen v. Principi, 300 F.3d
1353, 1360 (Fed. Cir. 2002) (noting that indigent litigants
generally have no right to appointed counsel absent a
potential loss of personal freedom); Lariscey v. United
States, 861 F.2d 1267, 1270 (Fed. Cir. 1988) (“In civil
proceedings . . . the right to counsel is highly circum-
scribed, and has been authorized in exceedingly restricted
circumstances.”). No such exceptional circumstances are
present here.
We have considered Taylor’s remaining arguments
but find them unconvincing. Accordingly, we affirm the
judgment of the United States Court of Federal Claims.
AFFIRMED