                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.
 United States Court of Appeals for the Federal Circuit

                                         06-5047

                                  KEITH RUSSELL JUDD,

                                                      Plaintiff-Appellant,

                                           v.

                                     UNITED STATES,

                                                      Defendant-Appellee.

                               __________________________

                                  DECIDED: June 28, 2006
                               __________________________


Before NEWMAN, LINN, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge LINN. Circuit Judge NEWMAN dissents.

LINN, Circuit Judge.

       Keith Russell Judd appeals a final decision of the United States Court of Federal

Claims, Judd v. United States, No. 05-CV-726 (Fed. Cl. Dec. 8, 2005) (Order),

dismissing Judd’s claim to enforce a Pretrial Diversion Agreement for lack of subject

matter jurisdiction. Because the Pretrial Diversion Agreement is not a contract within

the scope of the Tucker Act, we affirm the Court of Federal Claims’ dismissal for lack of

subject matter jurisdiction.

                                      BACKGROUND

       Judd entered into a Pretrial Diversion Agreement (“the Diversion Agreement”)

with the United States government through the office of the United States Attorney for
the Western District of Texas in April 1996. The Diversion Agreement provided that

Judd would not be prosecuted for an identified crime if he fulfilled certain conditions.

Judd’s complaint before the Court of Federal Claims requested enforcement of the

Diversion Agreement, alleging that it was a contract that the government had breached.

In response to a motion to dismiss, Judd added a claim for money damages for the

alleged breach based on funds that were seized as a result of his conviction. The Court

of Federal Claims concluded that the Diversion Agreement was not a “contract “ within

the scope of the Tucker Act, 28 U.S.C. § 1491(a)(1), and dismissed the claim for lack of

subject matter jurisdiction. Order, slip op. at 4. We have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1295(a)(3).

                                      DISCUSSION

      The Court of Federal Claims’ dismissal of a case for lack of subject matter

jurisdiction is a legal determination that we review de novo. Frazer v. United States,

288 F.3d 1347, 1351 (Fed. Cir. 2002). The issue on appeal is whether the Diversion

Agreement is a contract according to the Tucker Act. We conclude that it is not.

      The Tucker Act, in relevant part, grants the Court of Federal Claims jurisdiction

“to render judgment upon any claim against the United States founded . . . upon any

express or implied contract with the United States . . . .” 28 U.S.C. § 1491(a)(1) (2000).

However, the Tucker Act does not cover every agreement with the federal government.

      The contract liability which is enforceable under the Tucker Act consent to
      suit does not extend to every agreement, understanding, or compact
      which can semantically be stated in terms of offer and acceptance or
      meeting of the minds. The Congress undoubtedly had in mind as the
      principal class of contract cases in which it consented to be sued, the
      instances where the sovereign steps off the throne and engages in
      purchase and sale of goods, lands, and services, transactions such as




06-5047                                 2
      private parties, individuals or corporations also engage in among
      themselves.

Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981). In Kania, the Court of Claims

acknowledged that a plea agreement, immunity agreement, or witness protection

agreement might create Tucker Act jurisdiction, “[b]ut, in such case, the court would

look for specific authority in the [Assistant United States Attorney] to make an

agreement obligating the United States to pay money, and spelling out how in such a

case the liability of the United States is to be determined.” Id. In Sanders v. United

States, we interpreted that statement to mean that, for parties in a criminal case, “a

claim for money damages for the alleged breach of such an agreement may not be

maintained unless that agreement clearly and unmistakably subjects the government to

monetary liability for any breach.” 252 F.3d 1329, 1334-35 (Fed. Cir. 2001) (emphasis

added).

      Like the immunity agreement in Kania or the stipulated bail agreement in

Sanders, the Diversion Agreement in this case is entirely concerned with the conduct of

parties to a criminal case and contains no express terms providing for money damages.

The money damages Judd does allege were not specifically provided for in the

Diversion Agreement. The Diversion Agreement therefore is not a contract within the

scope of the Tucker Act, and the Court of Federal Claims lacks subject matter

jurisdiction. The Court of Federal Claims’ decision dismissing this case is affirmed.



NEWMAN, Circuit Judge, dissents.




06-5047                                  3
