Julian v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER B. JULIAN, RENEE G. JULIAN,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1889
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-01344-EJD, Senior Judge Edward
J. Damich.
______________________
Decided: August 4, 2016
______________________
CHRISTOPHER B. JULIAN, Ararat, VA, pro se.
RENEE G. JULIAN, Ararat, VA, 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., ALLISON
KIDD-MILLER.
2 JULIAN v. US
______________________
Before PROST, Chief Judge, CHEN, and STOLL, Circuit
Judges.
PER CURIAM.
Plaintiffs Christopher B. Julian and Renee G. Julian
filed suit in the United States Court of Federal Claims
alleging that the government breached an implied con-
tract and/or violated the Fifth Amendment’s Takings
Clause when the United States District Court for the
Western District of Virginia dismissed an earlier suit filed
by Plaintiffs under the Racketeer Influenced and Corrupt
Organizations (RICO) Act, 18 U.S.C. § 1964(c). In an
order issued March 10, 2016, the Court of Federal Claims
dismissed Plaintiffs’ complaint for lack of jurisdiction and
failure to state a claim upon which relief could be granted.
Julian v. United States, No. 15-1344C, 2016 WL 929219,
at *2–3 (Fed. Cl. Mar. 10, 2016) (Order). In that same
order, the court denied Plaintiffs’ request that the as-
signed judge—Senior Judge Edward J. Damich—recuse
himself from the case. Id. at *3. We find no error in the
court’s analysis and agree that dismissal was proper. We
therefore affirm.
BACKGROUND
Plaintiffs’ claims in this case arise from dismissal of
an earlier case they filed in the Western District of Vir-
ginia. On September 16, 2013, Plaintiffs filed suit against
the United States Department of Agriculture (USDA),
seven federal employees, and one Virginia state employee
requesting judicial review of the USDA’s decision to deny
Plaintiffs a Farm Ownership Loan and alleging a variety
of due process and other tort claims. 1 Julian v. Rigney,
1 Specifically, Plaintiffs lodged allegations of negli-
gence, fraud, fraudulent misrepresentation, conspiracy,
JULIAN v. US 3
No. 4:13-cv-00054, 2014 U.S. Dist. LEXIS 38311, at *13
(W.D. Va. Mar. 24, 2014). The district court dismissed
Plaintiffs’ claims, with the exception of the request for
review of the USDA’s decision to deny the loan. Id. at
*83. The district court subsequently granted the USDA’s
motion for summary judgment that it acted within its
authority when it denied Plaintiffs’ loan request. Julian
v. Rigney, No. 4:13-cv-00054, 2014 U.S. Dist. LEXIS
113190, at *18 (W.D. Va. Aug. 15, 2014). The Court of
Appeals for the Fourth Circuit affirmed the district court’s
decisions, Julian v. U.S. Dep’t of Agriculture, 585
F. App’x. 850, 850–51 (4th Cir. 2014), and the Supreme
Court denied Plaintiffs’ cert petition, Julian v. U.S. Dep’t
of Agriculture, 135 S. Ct. 1901, 1902 (2015).
Plaintiffs then filed suit in the Court of Federal
Claims seeking damages of $42 million. They alleged that
the United States government breached an implied con-
tract when the Western District of Virginia dismissed
their earlier case. Plaintiffs reason as follows: (1) the
government offered to enter into a contract with private
citizens through the codification of § 1964(c) of the RICO
Act, which allows persons who suffer injuries to their
business or property through a violation of the RICO Act
to serve as “private attorneys general” and sue for dam-
ages in federal district court, see Agency Holding Corp. v.
Malley-Duff & Assoc., Inc., 483 U.S. 143, 151 (1987);
(2) Plaintiffs accepted this offer by filing their complaint
in the Western District of Virginia; and (3) the govern-
ment breached the implied contract when the district
court dismissed Plaintiffs’ claims. In the alternative,
Plaintiffs alleged that the district court’s dismissal effec-
racketeering, and violations of the Fair Credit Reporting
Act. Julian v. Rigney, No. 4:13-cv-00054, 2014 U.S. Dist.
LEXIS 38311, at *13 (W.D. Va. Mar. 24, 2014).
4 JULIAN v. US
tuated an unlawful “taking” of Plaintiffs’ personal proper-
ty (i.e., the implied contract) under the Fifth Amendment.
On March 10, 2016, the Court of Federal Claims dis-
missed Plaintiffs’ action. The court held that it lacked
jurisdiction to review the Western District of Virginia’s
dismissal of Plaintiffs’ earlier case and that Plaintiffs
failed to state a claim for breach of contract or an unlaw-
ful taking. Order, 2016 WL 929219, at *2–3. As part of
the order, Judge Damich denied Plaintiffs’ request that he
recuse himself because he refused to attest to Plaintiffs
that he had taken his statutory oath to perform his duties
under the Constitution. 2 Id. at *3.
In response to the Court of Federal Claims’ order,
Plaintiffs filed a petition for writ of mandamus to this
court. We converted Plaintiffs’ petition to a notice of
appeal on April 19, 2016. We have jurisdiction to address
Plaintiffs’ appeal under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review whether the Court of Federal Claims
properly dismissed a complaint for either a lack of juris-
diction or for failure to state a claim upon which relief can
be granted de novo. Boyle v. United States, 200 F.3d
1369, 1372 (Fed. Cir. 2000). Plaintiffs bear the burden of
establishing jurisdiction by a preponderance of the evi-
dence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir. 2002). We “uphold[] the Court of Federal Claims’
evidentiary rulings absent an abuse of discretion.” Id.
Dismissal for failure to state a claim under Rule
12(b)(6) is proper only when a plaintiff “can prove no set
2 Plaintiffs included this request in a footnote in
their opposition to the government’s motion to dismiss.
Judge Damich treated the request as a motion for recusal.
Id. at *3.
JULIAN v. US 5
of facts in support of his claim which would entitle him to
relief.” Leider v. United States, 301 F.3d 1290, 1295 (Fed.
Cir. 2002) (internal quotation marks and citation omit-
ted). “In reviewing the Court of Federal Claims’ grant of
a Rule 12(b)(6) motion, we must assume that all well-pled
factual allegations in the complaint are true and draw all
reasonable inferences in favor of the non-movant.” Adams
v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004).
The Court of Federal Claims properly found that it
lacked jurisdiction over Plaintiffs’ claims. While styled as
breach of contract and takings claims, Plaintiffs’ claims
are, at bottom, requests that the Court of Federal Claims
review the Western District of Virginia’s decision to
dismiss Plaintiffs’ earlier action. 3 “The Court of Federal
Claims does not have jurisdiction to review the decisions
of district courts . . . relating to proceedings before those
courts.” Joshua v. United States, 17 F.3d 378, 380 (Fed.
Cir. 1994). Moreover, to the extent that Plaintiffs now
argue that the RICO Act is, itself, a money-mandating
statute conferring jurisdiction on the Court of Federal
Claims, 4 we hold that it is not. See Treviño v. United
3 The Court of Federal Claims also dismissed
claims it understood Plaintiffs to raise under the due
process clauses of the Fifth and Fourteenth Amendments.
Order, 2016 WL 929219, at *2. In their opening brief,
Plaintiffs make clear that none of their claims “w[ere], or
[are], based on violations of the Fifth and Fourteenth
Amendments.” Appellants’ Opening Br. 38. “[T]he party
who brings a suit is master to decide what law he will rely
upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S.
22, 25 (1913). Therefore, we do not address this portion of
the court’s opinion.
4 See Appellants’ Opening Br. 39 (“As has been con-
sistently argued by Appellants throughout these proceed-
ings 18 U.S.C. § 1964(c) is absolutely [a] money
6 JULIAN v. US
States, 557 F. App’x 995, 998 (Fed. Cir. 2014); Hufford v.
United States, 87 Fed. Cl. 696, 702 (2009).
The Court of Federal Claims’ alternative analysis—
i.e., that Plaintiffs failed to state a claim for which relief
could be granted—was likewise correct. Plaintiffs’ allega-
tions do not establish that any contract existed between
Plaintiffs and the government. Plaintiffs’ characteriza-
tion of § 1964(c) of the RICO Act as a contract “offer” is
false. “[A]bsent some clear indication that the legislature
intends to bind itself contractually, the presumption is
that ‘a law is not intended to create private contractual or
vested rights.’” Nat’l R.R. Passenger Corp. v. Atchison
Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465–66 (1985)
(quoting Dodge v. Bd. of Ed., 302 U.S. 74, 79 (1937)).
Nothing in the RICO Act suggests it was intended to
function as a contract offer to private citizens.
Plaintiffs also failed to allege an unlawful taking un-
der the Fifth Amendment. Plaintiffs contend that their
RICO Act claim in the Western District of Virginia repre-
sented a property right that was taken by the government
when the district court dismissed the claim. We have
held that frustration of a legal claim, like that alleged by
Plaintiffs, is not a compensable taking. See Belk v. United
States, 858 F.2d 706, 709 (Fed. Cir. 1988) (holding that
international agreement that barred Iranian hostages
from bringing legal action could not form the basis of a
takings claim).
Finally, we hold that Judge Damich did not abuse his
discretion when he denied Plaintiffs’ motion that he
recuse himself from the case. See Shell Oil Co. v. United
States, 672 F.3d 1283, 1288 (Fed. Cir. 2012) (“Consistent
with the vast majority of courts to consider this issue, we
mandating statute, which provides substantive property
rights in money damages.”).
JULIAN v. US 7
review a judge’s failure to recuse for an abuse of discre-
tion.”). By statute, all federal judges must swear or
affirm to perform their duties under the Constitution
before taking office. See 28 U.S.C. § 453. There is no
requirement that a federal judge later establish that he
took that oath or affirmation to the satisfaction of any
particular party.
AFFIRMED
COSTS
Each party shall bear its own costs.