Case: 20-1078   Document: 25     Page: 1   Filed: 07/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 CHARLES E. UTLEY,
                  Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2020-1078
                 ______________________

    Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00796-MBH, Senior Judge Marian Blank
 Horn.
                  ______________________

                  Decided: July 8, 2020
                 ______________________

    CHARLES E. UTLEY, Greenbelt, MD, pro se.

     JIMMY MCBIRNEY, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for defendant-appellee. Also represented by
 JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
 EDWARD KIRSCHMAN, JR.
                  ______________________
Case: 20-1078    Document: 25      Page: 2    Filed: 07/08/2020




 2                                    UTLEY   v. UNITED STATES



 Before PROST, Chief Judge, CLEVENGER and STOLL, Circuit
                         Judges.
 PER CURIAM.
     Charles Utley appeals from the final decision of the
 United States Court of Federal Claims dismissing his com-
 plaint for lack of subject-matter jurisdiction. Because we
 agree that the Court of Federal Claims lacks jurisdiction to
 hear his complaint, we affirm.
     Mr. Utley is an Air Force veteran and a Department of
 Veterans Affairs (VA) healthcare enrollee. In April 2016,
 medical professionals at the Washington, DC VA Medical
 Center (VAMC) examined Mr. Utley for severe headaches.
 The next month, the VAMC administered brain magnetic
 resonance imaging to Mr. Utley that revealed a mass in his
 brain. Mr. Utley alleges that the VAMC did not inform him
 of the mass until September 2017. He had surgery to re-
 move the mass in December 2017.
      In May 2019, Mr. Utley filed a complaint in the Court
 of Federal Claims alleging personal injury based on the
 conduct of VAMC medical professionals. According to the
 trial court, Mr. Utley’s complaint seeks compensation for
 “mental, emotional, physical and economic stress” due to
 the VAMC medical professionals’ alleged “‘[f]ailure to diag-
 nose an unrelated disease,’ ‘[d]elayed diagnosis,’ ‘[m]edical
 [m]alpractice [b]ased on [d]iagnostic [e]rrors,’ ‘[h]uman er-
 ror,’ and ‘[m]isdiagnosis/[d]elayed [d]iagnoses.’” Utley
 v. United States, 144 Fed. Cl. 573, 574 (2019) (brackets in
 original).
      The Government moved to dismiss Mr. Utley’s com-
 plaint for lack of subject-matter jurisdiction. The Court of
 Federal Claims granted the Government’s motion, holding
 that because all of Mr. Utley’s stated allegations and
 claims sound in tort, they must be dismissed for lack of sub-
 ject-matter jurisdiction under 28 U.S.C. § 1491. Mr. Utley
Case: 20-1078     Document: 25     Page: 3    Filed: 07/08/2020




 UTLEY   v. UNITED STATES                                    3



 appeals. We have jurisdiction pursuant to 28 U.S.C.
 § 1295(a)(3).
      We review de novo the Court of Federal Claims’ dismis-
 sal of a complaint for lack of subject-matter jurisdiction.
 Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997)
 (citing Shearin v. United States, 992 F.2d 1195 (Fed. Cir.
 1993)). Mr. Utley bears the burden of showing proper ju-
 risdiction in the Court of Federal Claims by a preponder-
 ance of the evidence. Taylor v. United States, 303 F.3d
 1357, 1359 (Fed. Cir. 2002) (citing Thomson v. Gaskill,
 315 U.S. 442, 446 (1942)). Under the Tucker Act, the Court
 of Federal Claims has limited jurisdiction to hear certain
 claims against the Government. 28 U.S.C. § 1491(a)(1).
 The Tucker Act expressly excludes tort claims against the
 Government from the Court of Federal Claims’ jurisdiction.
 Id. (“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 depart-
 ment, or upon any express or implied contract with the
 United States, or for liquidated or unliquidated damages in
 cases not sounding in tort.”).
      Mr. Utley has not identified any section of the Consti-
 tution or any statute or regulation that would entitle him
 to recover damages under the Tucker Act based on the facts
 he alleges. On appeal, Mr. Utley agrees that his complaint
 states claims for medical malpractice and negligence. Med-
 ical malpractice and negligence are claims sounding in tort
 over which the Court of Federal Claims lacks jurisdiction.
 See id.; Rick’s Mushroom Serv., Inc. v. United States,
 521 F.3d 1338, 1343 (Fed. Cir. 2008) (collecting cases) (“A
 claim for professional negligence is a tort claim.”). Because
 the Court of Federal Claims does not have jurisdiction to
 hear such claims, it would seem that this case should have
 been filed in district court, not the Court of Federal Claims.
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 4                                      UTLEY   v. UNITED STATES



     Mr. Utley also appears to argue that the trial court
 erred in dismissing his complaint because he alleged facts
 sufficient to support criminal charges against VAMC med-
 ical professionals for falsifying medical records. But “the
 role of the judiciary in . . . enforcing and policing the crim-
 inal law is assigned to the courts of general jurisdiction and
 not to” the Court of Federal Claims. Kania v. United
 States, 227 Ct. Cl. 458, 465 (1981). Accordingly, to the ex-
 tent Mr. Utley alleges injury due to criminal activity, the
 Court of Federal Claims still lacks jurisdiction over his
 claim.
     We have considered Mr. Utley’s remaining arguments
 and do not find them persuasive. For the above reasons,
 we conclude the Court of Federal Claims did not err in dis-
 missing Mr. Utley’s complaint for lack of subject-matter ju-
 risdiction.
                         AFFIRMED
                             COSTS
     No costs.
