                    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

                                         05-1605

     John E. McCormac, TREASURER OF THE STATE OF NEW JERSEY and
    Richard H. Moore, Jr., TREASURER OF THE STATE OF NORTH CAROLINA,

                                                                Plaintiffs-Appellants,

                                             v.

               UNITED STATES DEPARTMENT OF THE TREASURY,
                John W. Snow, SECRETARY OF THE TREASURY,
                        BUREAU OF PUBLIC DEBT, and
          Van Zeck, COMMISSIONER OF THE BUREAU OF PUBLIC DEBT,

                                                                Defendants-Appellees.

                            __________________________

                            DECIDED: June 15, 2006
                            __________________________


Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.

CLEVENGER, Senior Circuit Judge.


      Plaintiffs-Appellants John E. McCormac, Treasurer of the State of New Jersey,

and Richard H. Moore, Treasurer of the State of North Carolina (collectively, the States)

appeal the decision of the United States District Court for the District of New Jersey,

transferring this case to the United States Court of Federal Claims.          McCormac v.

United States Dep't of Treasury, No. 04-4368 (D.N.J. July 29, 2005) (Transfer Decision).

Because we hold that the Court of Federal Claims does not have jurisdiction over this

case, we reverse and remand to the district court for further proceedings.
                                              I

       The States filed suit against Defendants-Appellees, the United States

Department of the Treasury, the Secretary of the Treasury, the Bureau of Public Debt,

and the Commissioner of the Bureau of Public Debt (collectively, the Government),

invoking the Administrative Procedure Act (APA), 5 U.S.C. § 702, which permits judicial

review of agency action in actions "seeking relief other than money damages." The

States allege that, under state custodial escheat statutes, specifically the New Jersey

Uniform Unclaimed Property Act, N.J. Stat. Ann. § 46:30B-1 et seq. and the North

Carolina Escheat and Unclaimed Property Act, N.C. Gen. Stat. § 116B-1 et seq.

(collectively, the State Acts), they are entitled to acquire and maintain custody of

unclaimed property on behalf of the rightful owners of that property. Thus, the States

seek custody of matured but unclaimed United States savings bonds in the possession

of the Treasury Department.

       The Government moved to dismiss the amended complaint pursuant to Fed. R.

Civ. P. 12(b)(1) or, alternatively, to transfer the action to the Court of Federal Claims

pursuant to 28 U.S.C. § 1631. The district court denied the motion to dismiss and

granted the motion to transfer, finding that the States' claims are "based on contracts,"

i.e., the savings bonds, such that the Tucker Act, as opposed to the APA, provides the

appropriate source of subject matter jurisdiction.      The States timely appealed that

decision to this court, and we have jurisdiction to review the district court's interlocutory

order pursuant to 28 U.S.C. § 1292(d)(4)(A).




05-1605                                   2
                                              II

         We review questions concerning jurisdiction and transfer to the Court of Federal

Claims de novo. United States v. County of Cook, 170 F.3d 1084, 1087 (Fed. Cir.

1999).

         In its brief to this court, the Government concedes that it erred in requesting a

transfer to the Court of Federal Claims, as this case is not within that court's limited

jurisdiction.   The States agree and request that we reverse the transfer order and

remand to the district court for further proceedings.

         Indeed, both parties are correct that the transfer to the Court of Federal Claims

was improper. A case may be transferred to a "court in which the action or appeal could

have been brought." 28 U.S.C. § 1631 (2000). In order for the Court of Federal Claims

to have jurisdiction over this case, it must lie within the express jurisdictional mandate of

the Tucker Act, which grants the Court of Federal Claims jurisdiction over "any claim

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) (2000). However, the Tucker Act does not create any

substantive right for monetary damages. United States v. Mitchell, 445 U.S. 535, 538

(1980).     Rather, a plaintiff must plead an independent contractual relationship,

constitutional provision, federal statute, or executive agency regulation that provides a

substantive right to money damages. See Cyprus Amax Coal Co. v. United States,

205 F.3d 1369, 1373 (Fed. Cir. 2000) (citing Mitchell, 463 U.S. at 216; United States v.

Testan, 424 U.S. 392, 400 (1976)).




05-1605                                   3
       The States do not assert a contractual relationship, constitutional provision,

federal statute, or executive agency regulation that provides a substantive right to

money damages. Rather, the district court found that the Court of Federal Claims had

jurisdiction because "[t]he bonds are contracts between the United States and the bond

owners." Transfer Decision, slip op. at 4 (citing Rotman v. United States, 31 Fed. Cl.

724, 725 (1994) ("A U.S. Savings Bond is a contract between the United States and the

person to whom it is registered.")). The court determined that the States are seeking to

be paid the proceeds of the savings bonds, that such payment is at odds with the

federal regulations governing the bonds, and that, as a result, the States were seeking

to challenge the terms of the bonds. Thus, the court found that "the States' complaint

does assert a claim upon a contract with the United States" such that jurisdiction lies

within the Court of Federal Claims. Id. at 4-5.

       However, although the States are asserting a claim that involves a contract, they

are not asserting a contract claim for money damages against the government. The

bonds create a contractual relationship between the bond owners and the Government,

but do not create a contractual relationship between the States and the Government.

The States are not named parties to the bond contract, such that there is no privity

between the States and the Government. Further, the States neither assert that they

currently have title to the bonds, nor seek transfer of title to the bonds. Rather, they

seek custody rights originating in their escheat statutes, such that they seek to "act[] as

a conservator, not as a party to a contract." Conn. Mutual Life Ins. Co. v. Moore,

333 U.S. 541, 547 (1948).




05-1605                                  4
       Finally, neither party has cited any other contract creating a contractual

relationship between the States and the Government, nor any other substantive right for

money damages upon which a Tucker Act claim may be founded. Consequently, the

Court of Federal Claims does not have jurisdiction over this case. We reverse the

transfer order and remand to the district court for further proceedings.




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