Ganaway v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLARENCE GANAWAY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5031
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-654, Judge Francis M. Allegra.
______________________
Decided: February 10, 2014
______________________
CLARENCE GANAWAY, of Mansfield, Ohio, pro se.
CHRISTOPHER J. CARNEY, 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, BRYANT G. SNEE, Acting
Director, and FRANKLIN E. WHITE, JR., Assistant Director.
______________________
Before O’MALLEY, REYNA, and WALLACH, Circuit Judges.
2 GANAWAY v. US
PER CURIAM.
Clarence Ganaway appeals from the judgment of the
United States Court of Federal Claims dismissing his
complaint for lack of subject matter jurisdiction. This
court affirms.
BACKGROUND
On September 28, 2012, Mr. Ganaway filed a com-
plaint with the Court of Federal Claims alleging civil
rights violations and seeking “monetary damages, puni-
tive damages,” and “any other restitution remedies that
apply to the plaintiff in equity.” App. 4–5. His complaint
states that minority children in inner cities receive “infe-
rior education” whereas children in the suburbs have
access to higher learning. App. 7. “Due to under[-
]education,” he alleges that minority children “fall into
the trap of disparat[e] sentencing to long harsh prison
time.” App. 8. He argues this disparity is a violation of
the Equal Protection Clause of the Fourteenth Amend-
ment, App. 12, and seeks relief “under the Civil Rights
Act 42 U.S.C. § 1983,” App. 6.
On October 2, 2012, the Court of Federal Claims sua
sponte issued an order dismissing the complaint for lack
of jurisdiction. Mr. Ganaway filed this timely appeal. He
failed to pay this court’s docketing fee, however, and on
February 15, 2013, his appeal was dismissed for failure to
prosecute. Ganaway v. United States, No. 2013-5031 (Fed.
Cir. Feb. 15, 2013) (ECF No. 7) (order dismissing appeal
for failure to prosecute in accordance with the rules). On
September 20, 2013, this court granted Mr. Ganaway’s
motion to reopen his appeal, and ordered him to file an
informal brief within twenty-one days. Ganaway v. United
States, No. 2013-5031 (Fed. Cir. Sept. 20, 2013) (ECF No.
16) (order granting motion to reopen appeal). We now
consider Mr. Ganaway’s informal brief and the Govern-
ment’s response.
GANAWAY v. US 3
DISCUSSION
Dismissal for lack of jurisdiction is a question of law,
which this court reviews de novo. Bank of Guam v. United
States, 578 F.3d 1318, 1325 (Fed. Cir. 2009). The plaintiff
bears the burden to establish jurisdiction by a preponder-
ance of the evidence. Trusted Integration, Inc. v. United
States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). “In deter-
mining jurisdiction, a court must accept as true all undis-
puted facts asserted in the plaintiff’s complaint and draw
all reasonable inferences in favor of the plaintiff.” Id.
Drawing all inferences in Mr. Ganaway’s favor, the
Court of Federal Claims was correct to dismiss his com-
plaint for lack of jurisdiction. The Tucker Act, which
provides jurisdiction in the Court of Federal Claims,
states:
The United States Court of Federal Claims shall
have jurisdiction to render judgment upon any
claim against the United States founded either
upon the Constitution, or any Act of Congress or
any regulation of an executive department, or up-
on any express or implied contract with the Unit-
ed States, or for liquidated or unliquidated
damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (2012). 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). A plaintiff must also assert a right to recover
under a separate money-mandating source of law. When,
as here, there is no allegation of a contract with the
United States, the plaintiff must show that “the constitu-
tional provision, statute, or regulation in question ex-
pressly creates a substantive right enforceable against the
federal government for money damages.” LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing
Testan, 424 U.S. at 398).
4 GANAWAY v. US
The laws on which Mr. Ganaway relies are not money
mandating. The Equal Protection Clause of the Four-
teenth Amendment “do[es] not mandate payment of
money by the government.” LeBlanc, 50 F.3d at 1028.
Section 1983 of the Civil Rights Act of 1964 also does not
create a right “against the federal government for money
damages,” id., but is instead a damages remedy against
persons acting under the color of state law. See Davis v.
Passman, 442 U.S. 228, 248 (1979) (“By virtue of 42
U.S.C. § 1983, a damages remedy is already available to
redress injuries such as petitioner’s when they occur
under color of state law.”). To the extent Mr. Ganaway
asserts a due process claim under the Fifth and Four-
teenth Amendments, or a tort claim, these claims also do
not establish jurisdiction. See LeBlanc, 50 F.3d at 1028
(holding there is no Tucker Act jurisdiction based on the
Due Process clauses of the Fifth and Fourteenth Amend-
ments); 28 U.S.C. § 1346(b)(1) (granting district courts
exclusive jurisdiction to hear tort claims against the
United States pursuant to the Federal Tort Claims Act);
see also Berdick v. United States, 612 F.2d 533, 536 (Ct.
Cl. 1979).
On appeal, Mr. Ganaway argues that the Court of
Federal Claims erred in failing to consider 28 U.S.C.
§§ 1331, 1343, 2201, 2202, 2283, 2284, and 1915(e)(1).
These provisions have no bearing on jurisdiction in the
Court of Federal Claims, however. Sections 1331, 1343,
2201, and 2202 provide jurisdiction in federal district
courts, not the Court of Federal Claims. Sections 2283
and 1915(e) are not jurisdictional provisions; the former
addresses when federal courts may enjoin state court
proceedings, and the latter describes when courts may
appoint counsel to “represent any person unable to afford
counsel.”
Mr. Ganaway also asserts jurisdiction under an
unspecified “Rule 65.” If he refers to Rule 65 of the Rules
of the United States Court of Federal Claims, that rule
GANAWAY v. US 5
sets various limits on the court’s exercise of injunctive
relief. It does not provide for jurisdiction.
Mr. Ganaway also asserts error in the Court of Feder-
al Claims’ alleged failure to take into account “the main
fact of inferior education in the in[n]er cit[ies] of Ameri-
ca.” Appellant’s Br. 1. He states that most “minority
school district[s] receive nearly $4000 less per pupil” and
“78% of [their] teachers . . . do not teach in [their] accred-
ited subject area.” Id. Although these distressing factual
allegations may well be true, they do not create for Mr.
Ganaway a cause of action in the Court of Federal Claims.
Nor do they alter the jurisdictional analysis here; Mr.
Ganaway has failed to identify a money-mandating source
of law. 1
CONCLUSION
This court accordingly affirms the Court of Federal
Claims’ dismissal of Mr. Ganaway’s complaint.
AFFIRMED
No costs.
1 Mr. Ganaway requests this court to “allow discov-
ery” pursuant to the Federal Rules of Civil Procedure 26
through 37. Appellant’s Br. 2. Because the Court of
Federal Claims lacked jurisdiction, however, it had no
power to order discovery.