                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2009-5079

                                  KHURRAM AFZAL,

                                                         Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                         Defendant-Appellee,

      Khurram Afzal, of Fullerton, California, pro se.

       Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director.

Appealed from: United States Court of Federal Claims

Senior Judge Eric G. Bruggink
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2009-5079

                                    KHURRAM AFZAL,

                                                         Plaintiff-Appellant,

                                             v.

                                    UNITED STATES,

                                                         Defendant-Appellee.


Appeal from the United States Court of Federal Claims in 08-CV-869, Senior Judge Eric
G. Bruggink.


                             __________________________

                               DECIDED: October 7, 2009
                             __________________________


Before RADER, BRYSON, and LINN, Circuit Judges.

PER CURIAM.

       Khurram Afzal (“Afzal”) appeals a final decision of the United States Court of

Federal Claims dismissing his action for lack of jurisdiction. Because we agree that

Afzal’s claims fall outside the jurisdiction of the Court of Federal Claims, we affirm.

       On December 5, 2008, Afzal filed a complaint against the San Gabriel Valley

Small Business Development Center (“San Gabriel Valley-SBDC”) and the United

States in the Court of Federal Claims, claiming $300 million in damages because the

San Gabriel Valley-SBDC refused to finance his proposed computer modem business.
The complaint asserts subject matter jurisdiction under the Tucker Act, 28 U.S.C.

§ 1491 (2006).

      In the action before the Court of Federal Claims, Afzal served a subpoena on the

United States on January 9, 2009.      The subpoena requested a copy of a contract

between the Small Business Administration and the San Gabriel Valley-SBDC. Afzal

claims that this contract provides evidence that the San Gabriel Valley-SBDC finances

small businesses. The United States moved to quash the subpoena, and the court

granted the motion on January 16, 2009. Afzal served the subpoena on the United

States a second time. Afzal claims that the court also quashed this subpoena, while the

United States contends that the subpoena was not quashed but rather rendered

unenforceable when the court dismissed Afzal’s action.

      On February 3, 2009, the United States moved to dismiss the suit. The United

States attached a copy of the contract between the Small Business Administration and

the San Gabriel Valley-SBDC to its motion to dismiss. The Court of Federal Claims

granted the United States’ motion on March 17, 2009. The court found that the Tucker

Act did not confer subject matter jurisdiction because the only statute cited by Afzal, 15

U.S.C. § 648 (2006), did not mandate compensation.

      Afzal filed a timely appeal with this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(3).

      We understand Afzal to raise three issues on appeal. First, he argues that the

Court of Federal Claims misinterpreted 15 U.S.C. § 648. Second, he contends that the

court improperly quashed his subpoenas. Finally, he alleges that the United States has




2009-5079                                   2
discriminated against him because of his national origin. We address each allegation in

turn.

        The Tucker Act grants the Court of Federal Claims jurisdiction over certain

actions against the United States and waives the United States’ sovereign immunity for

those actions. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). The Act

applies to claims for money damages 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. It does not,

however, create a substantive cause of action. Fisher, 402 F.3d at 1172. Thus, Afzal

must identify a money-mandating source of law, i.e., “a separate source of substantive

law that creates the right to money damages.” Id.

        Afzal seems to argue that 15 U.S.C. § 648 compels the San Gabriel Valley-

SBDC to finance his proposed small businesses.               This argument reflects a

misunderstanding of § 648. The statute permits the Small Business Administration to

make grants for establishing small business development centers, not small

businesses:

              The Administration is authorized to make grants (including
              contracts and cooperative agreements) to any State
              government or any agency thereof, any regional entity, any
              State-chartered development, credit or finance corporation,
              any women’s business center operating pursuant to section
              656 of this title, any public or private institution of higher
              education, including but not limited to any land-grant college
              or university, any college or school of business, engineering,
              commerce, or agriculture, community college or junior
              college, or to any entity formed by two or more of the above
              entities (herein referred to as “applicants”) to assist in
              establishing small business development centers . . . .



2009-5079                                   3
15 U.S.C. § 648(a)(1) (emphases added).        The statute is simply inapplicable here.

Afzal does not contend that his proposed business is a small business development

center, and nothing in the statute allows a small business development center to fund a

small business. In fact, the regulations that implement § 648 explicitly prohibit small

business development centers from loaning money: “SBDCs may not make loans,

service loans or make credit decisions regarding the award of loans.” 13 C.F.R. §

130.340(b)(4) (2009).

      Even if § 648 were applicable, we cannot conclude that it mandates

compensation. The statute merely authorizes the Small Business Administration to fund

small business development centers. Had Congress intended § 648 to compel the

Small Business Administration to finance small business development centers, it might

have replaced the word “authorized” with a word that clearly compelled the Small

Business Administration to act, for example, “shall” or “must.” But it did not. Thus, we

agree with the Court of Federal Claims that 15 U.S.C. § 648 is not a money-mandating

provision of law and that the Court of Federal Claims did not have jurisdiction to hear

Afzal’s claims under 15 U.S.C. § 648.

      Afzal also contends that the Court of Federal Claims improperly quashed his

subpoenas. We disagree. Rule 26 of the Rules of the United States Court of Federal

Claims (“RCFC”) states that, subject to exceptions inapplicable here, “[a] party may not

seek discovery from any source before the parties have conferred as required by

Appendix A ¶ 3.” RCFC 26(d)(1) (2009). In turn, Appendix A, paragraph 3 requires the

parties’ counsel to confer “[s]ubsequent to the filing of defendant’s answer.”       Id.

Appendix A ¶ 3. No answer was filed here, thus any subpoenas filed by Afzal were



2009-5079                                  4
premature and therefore properly quashed by the court. Moreover, the United States

provided Azfal the discovery he sought by attaching to its motion to dismiss a copy of

the contract between the Small Business Administration and the San Gabriel Valley-

SBDC. Therefore, we find no abuse of discretion in the Court of Federal Claims’ actions

in quashing Afzal’s subpoenas.

          Finally, Afzal argues that the United States discriminated against him based on

his national origin.    In response, the United States contends that Afzal waived this

argument because he failed to raise it below and because the Court of Federal Claims

does not have jurisdiction over discrimination claims. We need not address the issue of

waiver, as we agree that the Court of Federal Claims does not have jurisdiction over

such claims, see 28 U.S.C. § 1343(a) (conferring district courts with original jurisdiction

over civil rights disputes); J & L Janitorial Servs., Inc. v. United States, 231 Ct. Cl. 837,

838 (Ct. Cl. 1982) (finding that racial discrimination claims must be brought in district

court).

          For the foregoing reasons, the Court of Federal Claims was correct in concluding

that it lacked subject matter jurisdiction to entertain Afzal’s claims and properly quashed

Afzal’s subpoenas. Accordingly, we affirm.

                                          COSTS

          No costs.




2009-5079                                     5
