Canuto v. United States , 673 F. App'x 982 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERESITA A. CANUTO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2299
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00414-NBF, Senior Judge Nancy B.
Firestone.
______________________
Decided: December 12, 2016
______________________
TERESITA A. CANUTO, Northridge, CA, pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________
Before DYK, CLEVENGER, and STOLL, Circuit Judges.
2 CANUTO v. US
PER CURIAM.
The Court of Federal Claims dismissed Teresita Ca-
nuto’s claims for lack of subject of matter jurisdiction. We
affirm the dismissal, along with the Court of Federal
Claims’ denial of Ms. Canuto’s motion to amend her
complaint as moot.
BACKGROUND
Ms. Canuto brings this suit against the United States.
She alleges that, on numerous occasions, members of the
U.S. military broke into her apartment, released sleeping
gas to incapacitate her and her family, and sexually
assaulted her. Ms. Canuto alleges that the perpetrators
were acting under orders from the Office of the President.
She seeks compensatory and punitive damages for the
alleged assaults.
This is the third suit Ms. Canuto has filed in the
Court of Federal Claims making largely the same allega-
tions of assault. In both prior cases, the Court of Federal
Claims dismissed Ms. Canuto’s complaints for lack of
subject matter jurisdiction, and this court affirmed each of
those dismissals. See Canuto v. United States, 651 F.
App’x 996 (Fed. Cir. 2016); Canuto v. United States, 615
F. App’x 951 (Fed. Cir. 2015).
Ms. Canuto filed her complaint in the present case on
April 1, 2016. She filed a motion to amend her complaint
to include additional allegations of abuse on April 15,
2016. The Court of Federal Claims sua sponte dismissed
Ms. Canuto’s claims on May 4, 2016, finding a lack of
subject matter jurisdiction. The Court of Federal Claims
also denied Ms. Canuto’s motion to amend as moot. Ms.
Canuto appeals the Court of Federal Claims’ dismissal.
We have jurisdiction to review the Court of Federal
Claims’ rulings under 28 U.S.C. § 1295(a)(3).
CANUTO v. US 3
DISCUSSION
A
The Tucker Act, 28 U.S.C. § 1491(a)(1), “confers juris-
diction upon the Court of Federal Claims over the speci-
fied categories of actions brought against the United
States.” Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en banc portion). The categories are
those “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).
The Tucker Act does not, however, create a substan-
tive cause of action. “[A] plaintiff must identify a sepa-
rate source of substantive law that creates the right to
money damages.” Fisher, 402 F.3d at 1172. “That source
must be ‘money-mandating.’ ” Metz v. United States, 466
F.3d 991, 996 (Fed. Cir. 2006) (quoting Fisher, 402 F.3d at
1172 (en banc portion)).
Ms. Canuto’s complaint cites to a several sources of
law as supporting her claims: the Posse Comitatus Act, 18
U.S.C. § 1385; the Occupational Safety and Health Act of
1970, 29 U.S.C § 651; 10 U.S.C. § 375 (relating to regula-
tions for preventing the use of the military for domestic
law enforcement); the Telephone Records and Privacy
Protection Act of 2006, 18 U.S.C. § 1039; the Privacy Act
of 1974, 5 U.S.C. § 552a; the Federal Tort Claims Act, 28
U.S.C. § 2679; 10 U.S.C. § 939 (relating to procedures for
addressing property damage claims under Uniform Code
of Military Justice); the Military Claims Act, 10 U.S.C.
§ 2733; the Civil Rights Act, 42 U.S.C. § 1981; and various
sections of Articles I, II, and III of the Constitution.
The Court of Federal Claims found that none of the
cited sources of law fit within the Tucker Act’s jurisdic-
tional grant. Without addressing whether Ms. Canuto
4 CANUTO v. US
satisfactorily alleged facts to state a claim under these
various regulations, we agree that the Court of Federal
Claims may not hear her claims.
First, Ms. Canuto’s claims seeking damages for “re-
peated assault . . . and battery,” are, at their core, tort
claims. See Complaint at 1. The Tucker Act specifically
excludes claims “sounding in tort” from the Court of
Federal Claims’ jurisdiction. 28 U.S.C. § 1491(a)(1).
Second, Congress has conferred to the district courts
exclusive jurisdiction over claims brought pursuant to the
Federal Tort Claims Act, see 28 U.S.C. § 1346(b)(1);
Robleto v. United States, 634 F. App’x 306, 308 (Fed. Cir.
2015), and the Civil Rights Act, see Cunningham v. Unit-
ed States, 479 F. App’x 974, 975 (Fed. Cir. 2012). The
Court of Federal Claims properly refused to hear Ms.
Canuto’s claims rooted in these statutes.
Finally, Ms. Canuto fails to establish that any of the
remaining sources of law are money-mandating. “Not
every claim invoking the Constitution, a federal statute,
or a regulation is cognizable under the Tucker
Act. . . . [T]he claimant must demonstrate that the source
of substantive law he relies upon can fairly be interpreted
as mandating compensation by the Federal Government
for the damages sustained.” United States v. Mitchell, 463
U.S. 206, 216–17 (1983) (quotation marks omitted). Even
pro se claimants must meet this burden of proving the
Court of Federal Claims’ jurisdiction. Sanders v. United
States, 252 F.3d 1329, 1333 (Fed. Cir. 2001). Ms. Canuto
has not done so.
We agree with the Court of Federal Claims, for the
reasons stated in the thorough opinion below, that the
other cited statutes and Constitutional provisions are not
money-mandating. Most of them do not contemplate or
provide for private causes of action, let alone require the
payment of damages. See United States v. Navajo Nation,
556 U.S. 287, 290 (2009) (“The . . . source of law need not
CANUTO v. US 5
explicitly provide that the right or duty it creates is en-
forceable through a suit for damages, but it triggers
liability only if it can fairly be interpreted as mandating
compensation by the Federal Government.” (quotation
marks omitted)).
In her appeal briefs, Ms. Canuto also argues that the
Declaration of Independence serves as protection order
against violence, threats, and harassment, thereby
providing the basis for the Court of Federal Claims’
jurisdiction. Ms. Canuto waived this argument by not
first raising it before the Court of Federal Claims. See
San Carlos Apache Tribe v. United States, 639 F.3d 1346,
1354–55 (Fed. Cir. 2011). Also, the Declaration of Inde-
pendence is not a money-mandating source of law.
We have considered Ms. Canuto’s remaining argu-
ments and find them unpersuasive. Thus, for the reasons
stated above, the Court of Federal Claims properly dis-
missed Ms. Canuto’s complaint for a lack of subject mat-
ter jurisdiction.
B
Prior to dismissal, Ms. Canuto moved to amend her
complaint to allege additional instances of assault. The
Court of Federal Claims denied the motion as moot after
dismissing the case.
The denial of Ms. Canuto’s motion to amend was not
an abuse of discretion. See Tamerlane, Ltd. v. United
States, 550 F.3d 1135, 1147 (Fed. Cir. 2008). Ms. Canu-
to’s amended allegations did not identify additional or
alternative legal bases on which the Court of Federal
Claims could exercise jurisdiction. As such, the motion
was futile and properly denied. See Foman v. Davis, 371
U.S. 178, 182 (1962) (identifying “futility of amendment”
as a basis for denying leave to amend).
6 CANUTO v. US
CONCLUSION
We affirm the Court of Federal Claims’ dismissal of
Ms. Canuto’s complaint and denial of the motion to
amend as moot.
AFFIRMED
COSTS
No Costs.