Kenyon v. United States , 683 F. App'x 945 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RONALD GENE KENYON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2549
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00223-SGB, Chief Judge Susan G.
Braden.
______________________
Decided: April 7, 2017
______________________
RONALD GENE KENYON, Marianna, FL, pro se.
JIMMY MCBIRNEY, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN
HOCKEY.
______________________
PER CURIAM.
2 KENYON v. US
Ronald Gene Kenyon (“Kenyon”) appeals from the fi-
nal judgment of the United States Court of Federal
Claims (“the Claims Court”) dismissing his amended
complaint for lack of subject matter jurisdiction. See
Kenyon v. United States, 127 Fed. Cl. 767 (2016) (“Deci-
sion”). For the reasons that follow, we affirm.
BACKGROUND
Kenyon is currently imprisoned at the Federal Cor-
rections Institute (“FCI”) in Marianna, Florida. Following
a retrial, the Eighth Circuit affirmed Kenyon’s conviction
on two counts of aggravated sexual abuse of a child,
reversed his conviction on two other counts, and remand-
ed. United States v. Kenyon, 481 F.3d 1054, 1059, 1072
(8th Cir. 2007). On July 16, 2007, Kenyon was sentenced
on the two counts of aggravated sexual abuse of a child to
concurrent terms of 293 months in custody. United States
v. Kenyon, Second Amended Judgment, No. 3:03-cr-30071,
(D.S.D. July 16, 2007), ECF No. 155. Kenyon did not
appeal.
In February 2016, Kenyon filed a complaint in the
Claims Court. The court subsequently granted Kenyon’s
motion to file an amended complaint. Kenyon’s amended
complaint alleges violations of his constitutional rights
and the “bad men” clause of the Fort Laramie Treaty of
1868, 15 Stat. 635. The amended complaint also alleges
that Kenyon was wrongfully imprisoned. Kenyon seeks
damages in the amount of $25 million for wrongful im-
prisonment and injunctive and declaratory relief, includ-
ing enjoining the United States from enforcing multiple
statutes and policies listed in the amended complaint, his
immediate release from FCI, and “expungement of his
‘charges, DNA, fingerprints, data and all other legal
instruments particular to [him].’” Decision, 127 Fed. Cl.
at 770–771 (quoting Am. Compl. at 2–3) (alteration in
original). The government moved to dismiss the amended
KENYON v. US 3
complaint for lack of subject matter jurisdiction and for
failure to state a claim.
On July 28, 2016, the Claims Court granted the gov-
ernment’s motion and dismissed Kenyon’s amended
complaint for lack of subject matter jurisdiction. The
Claims Court concluded that it did “not have jurisdiction
to adjudicate the alleged constitutional violations because
the Fourth, Sixth, and Eighth Amendments, as well as
the Due Process clauses of the Fifth and Fourteenth
Amendments are not ‘money-mandating.’” Kenyon, 127
Fed. Cl. at 773. Additionally, because Kenyon “ha[d] not
exhausted his administrative remedies by filing a claim
with the United States Department of the Interior,” the
Claims Court concluded that it did not have jurisdiction
regarding the alleged violations of the “bad men” clause of
the Fort Laramie Treaty. Id. at 774.
Furthermore, the Claims Court determined that it did
not have jurisdiction over Kenyon’s wrongful imprison-
ment claims for failure to satisfy the statutory require-
ments under 28 U.S.C. § 2513(a), or jurisdiction to review
the criminal proceedings leading to Kenyon’s conviction
and his claims pursuant to certain criminal statutes. Id.On August 22, 2016, Kenyon filed a joint notice of ap-
peal and motion to alter or amend judgment pursuant to
Rule 59(e) of the Rules of the United States Court of
Federal Claims. On August 25, 2016, the Claims Court
denied the motion to alter or amend the judgment as moot
in light of the transmittal of the appeal to this court.
(“Rule 59(e) Order”). Keyon did not file a notice of appeal
from, or an amended notice of appeal following, the Rule
59(e) Order.
Kenyon timely appealed from the Claims Court’s July
28, 2016 decision. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
4 KENYON v. US
DISCUSSION
We review the Claims Court’s decision to dismiss a
claim for lack of subject matter jurisdiction de novo.
Waltner v. United States, 679 F.3d 1329, 1332 (Fed. Cir.
2012). A plaintiff bears the burden of establishing juris-
diction by a preponderance of the evidence, Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and
the leniency afforded pro se litigants with respect to mere
formalities does not relieve them of jurisdictional re-
quirements, Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d
1378, 1380 (Fed. Cir. 1987). We review the Claims
Court’s interpretation of treaties de novo. Jones v. United
States, 846 F.3d 1343, 1351 (Fed. Cir. 2017).
The Tucker Act provides the Claims Court with juris-
diction over claims “against the United States 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 is “only a
jurisdictional statute; it does not create any substantive
right enforceable against the United States for money
damages.” United States v. Testan, 424 U.S. 392, 398
(1976). “Instead, to invoke jurisdiction under the Tucker
Act, a plaintiff must identify a contractual relationship,
constitutional provision, statute, or regulation that pro-
vides a substantive right to money damages.” Khan v.
United States, 201 F.3d 1375, 1377 (Fed. Cir. 2000). The
Claims Court also has “jurisdiction to render judgment
upon any claim for damages by any person unjustly
convicted of an offense against the United States and
imprisoned.” 28 U.S.C. § 1495.
Kenyon argues that the Claims Court’s dismissal
should be reversed and that the “court failed to fairly
consider [his] motion to alter or amend judgment pursu-
ant to Rule 59(e).” Appellant’s Br. 1–2. Kenyon contends
KENYON v. US 5
that the Claims Court applied the wrong law, failed to
consider important grounds for relief, and otherwise erred
in dismissing his case. For support, he primarily provides
citation without explanation to cases, statutes, the Fort
Laramie Treaty, the Constitution, and the Federal Rules
of Civil Procedure.
The government responds that the Claims Court cor-
rectly concluded that it lacks jurisdiction over Kenyon’s
complaint. The government contends that the Claims
Court properly relied on established precedent to hold
that it lacked jurisdiction over Kenyon’s claims. The
government asserts that Kenyon waived any argument
regarding an “overlap between two federal provisions” (42
U.S.C. § 1983 and 28 U.S.C. § 2255) and whether 42
U.S.C. § 16913 (“S.O.N.R.A.”) is “punishment” by raising
those issues for the first time on appeal. Appellee’s Br. 6–
7. The government also argues that the Claims Court did
not incorrectly fail to consider Kenyon’s Rule 59(e) mo-
tion.
As an initial matter, because Kenyon never filed an
amended notice of appeal of the Rule 59(e) Order, that
order is not properly before us. “A party intending to
challenge an order disposing of any motion listed in
[Federal Rule of Appellate Procedure] 4(a)(4)(A), or a
judgment’s alteration or amendment upon such a motion,
must file a notice of appeal, or an amended notice of
appeal . . . .” FED. R. APP. P. 4(a)(4)(B)(ii). Motions listed
in Rule 4(a)(4)(A) include motions “to alter or amend the
judgment under Rule 59.” Here, the Rule 59(e) Order
disposed of Kenyon’s motion to alter or amend the judg-
ment. Kenyon failed to timely file an amended notice of
appeal from that order. Accordingly, Kenyon’s allegation
that the Claims Court failed to “fairly consider” his mo-
tion to alter or amend the judgment is not properly before
us. See Tex. Peanut Farmers v. United States, 409 F.3d
1370, 1375 (Fed. Cir. 2005).
6 KENYON v. US
We agree with the government that the Claims Court
properly concluded that it lacked jurisdiction to adjudi-
cate Kenyon’s alleged constitutional violations. The
Claims Court lacks jurisdiction over claims based on the
Fourth, Sixth, and Eighth Amendments, as well as the
Due Process clauses of the Fifth 1 and Fourteenth
Amendments because they are not “money-mandating.”
See, e.g., Brown v. United States, 105 F.3d 621, 623 (Fed.
Cir. 1997) (“Because monetary damages are not available
for a Fourth Amendment violation, the Court of Federal
Claims does not have jurisdiction over such a violation.”);
Dupre v. United States, 229 Ct. Cl. 706, 706 (1981) (“[T]he
fourth and sixth amendments do not in themselves obli-
gate the United States to pay money damages; and,
therefore, we have no jurisdiction over such claims.”);
Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir.
2007) (“The Court of Federal Claims does not have juris-
diction over claims arising under the Eighth Amendment,
as the Eighth Amendment is not a money-mandating
provision.” (internal quotation marks omitted)); LeBlanc
v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (The
“Due Process Clauses of the Fifth and Fourteenth
Amendments” are not “a sufficient basis for jurisdiction
because they do not mandate payment of money by the
government.”).
We also agree with the government that the Claims
Court properly concluded that it lacked jurisdiction over
Kenyon’s wrongful imprisonment claims. 28 U.S.C.
§ 2513 requires a person suing under 28 U.S.C. § 1495 to
“allege and prove that:”
(1) His conviction has been reversed or set aside
on the ground that he is not guilty of the offense of
which he was convicted, or on new trial or rehear-
1 The amended complaint does not allege a taking
under the Fifth Amendment.
KENYON v. US 7
ing he was found not guilty of such offense, as ap-
pears from the record or certificate of the court
setting aside or reversing such conviction, or that
he has been pardoned upon the stated ground of
innocence and unjust conviction and
(2) He did not commit any of the acts charged or
his acts, deeds, or omissions in connection with
such charge constituted no offense against the
United States, or any State, Territory or the Dis-
trict of Columbia, and he did not by misconduct or
neglect cause or bring about his own prosecution.
28 U.S.C. § 2513(a). Kenyon does not meet these re-
quirements.
We similarly agree that even if the court construes
Kenyon’s wrongful imprisonment claims as a request for
review of the district court criminal proceedings, the
Claims Court lacks jurisdiction. The Claims Court “does
not have jurisdiction to review the decisions of district
courts or the clerks of district courts relating to proceed-
ings before those courts.” Joshua v. United States, 17
F.3d 378, 380 (Fed. Cir. 1994). Furthermore, we agree
that the Claims Court properly concluded that it lacked
jurisdiction pursuant to the criminal statutes identified
by Kenyon. See id. at 1379 (stating that the Claims Court
“has no jurisdiction to adjudicate any claims whatsoever
under the federal criminal code”).
Furthermore, we agree that dismissal of Kenyon’s
“bad men” claims pursuant to the Fort Laramie Treaty
was appropriate. The Claims Court dismissed these
claims because “Kenyon ha[d] not exhausted his adminis-
trative remedies by filing a claim with the United States
Department of the Interior.” Decision, 127 Fed. Cl. at
774. Irrespective of whether filing such a claim is a
jurisdictional requirement, a question we do not reach,
dismissal for failure to exhaust administrative remedies
is appropriate in this case.
8 KENYON v. US
The Supreme Court “long has acknowledged the gen-
eral rule that parties exhaust prescribed administrative
remedies before seeking relief from the federal courts.”
McCarthy v. Madigan, 503 U.S. 140, 144–45 (1992). The
Fort Laramie Treaty clearly requires “proof” of a claim
being “made to the agent and forwarded to the Commis-
sioner of Indian Affairs at Washington City.” Fort
Laramie Treaty of 1868, art. I. 2 Kenyon does not dispute
that he has not filed the required claim with the agency
and has not argued that any exception to administrative
exhaustion applies here. See, e.g., McCarthy, 503 U.S. at146–49 (summarizing judicial exceptions to administra-
tive exhaustion). Thus, the Claims Court properly dis-
2 The treaty states, in relevant part:
If bad men among the whites, or among other
people subject to the authority of the United
States, shall commit any wrong upon the per-
son or property of the Indians, the United
States will, upon proof made to the agent and
forwarded to the Commissioner of Indian Af-
fairs at Washington City, proceed at once to
cause the offender to be arrested and pun-
ished according to the laws of the United
States, and also re-imburse the injured person
for the loss sustained. . . . And the President,
on advising with the Commissioner of Indian
Affairs, shall prescribe such rules and regula-
tions for ascertaining damages under the pro-
visions of this article as in his judgment may
be proper. But no one sustaining loss while
violating the provisions of this treaty or the
laws of the United States shall be re-imbursed
therefor.
Fort Laramie Treaty of 1868, art. I (emphases added).
KENYON v. US 9
missed his treaty claims for failure to exhaust adminis-
trative remedies.
Finally, we agree with the government that Kenyon
waived any argument regarding an overlap between 42
U.S.C. § 1983 and 28 U.S.C. § 2255 and whether
S.O.N.R.A. is punishment by raising those issues for the
first time on appeal. Even where a party appears pro se,
“[i]ssues not properly raised before the [trial] court are
waived on appeal.” Stauffer v. Brooks Bros. Grp., 758
F.3d 1314, 1322 (Fed. Cir. 2014). Kenyon does not dis-
pute in his Reply Brief that these are new arguments, nor
does he explain why waiver of these arguments would
result in a “miscarriage of justice” with respect to his
claims. See Appellant’s Reply Br. 4 (quoting Mankes v.
Vivid Seats, Ltd., 822 F.3d 1302, 1309 (Fed. Cir. 2016)).
Kenyon has thus waived these arguments. Additionally,
Kenyon’s arguments regarding S.O.N.R.A.’s application to
Victor C. Fourstar, Jr., who is not a party to this action,
are not properly before this court.
CONCLUSION
We have considered Kenyon’s remaining arguments,
but find them unpersuasive. For the foregoing reasons,
we affirm the Claims Court’s decision dismissing Ken-
yon’s claims.
AFFIRMED
COSTS
No costs.