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                                   ORI(!Court
                                         I ALof jfeberal <!Claims
                                          No. 14-825C
                                   (Filed January 27, 2015)
                                  NOT FOR PUBLICATION
                                                                            FILED
* * * * * * * * * * * * * * * * * *                                        JAN 2 7 r j
                                           *                              U.S. COURT OF
                                           *                             FEDERAL CLAIMS
DAVID ASMUSSEN,                            *
                                           *
                     Plaintiff,            *
                                           *
                v.                         *
                                           *
THE UNITED STATES,                         *
                                           *
                     Defendant.            *
                                           *
* * * * * * * * * * * * * * * * * *

                     MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Pending before the court is defendant's motion to dismiss plaintiffs complaint
for lack of subject-matter jurisdiction under Rule 12(b)(l) of the Rules of the United
States Court of Federal Claims ("RCFC"). For the reasons set forth below the Court
finds that it lacks subject-matter jurisdiction over plaintiffs claims. Defendant's
motion to dismiss is therefore GRANTED.

                                    I. BACKGROUND

       David J. Asmussen, plaintiff, is currently serving a lifetime prison sentence
at the South Dakota State Penitentiary. Def.'s Mot. to Dismiss (Def.'s Mot.) at 1.
Plaintiff, proceeding prose, filed a complaint in this Court on September 5, 2014,
requesting a declaration "stating with specificity that the Constitution of the United
States ... is void." Compl. at 1. Plaintiff claims that he is a "[third] party"
benefiting from the Constitution, which he treats as a contract. Id. He alleges that
agents of the United States abused their "fiduciary power" by defrauding him and
therefore violated his rights under the Constitution. Id. Plaintiff attached to his
complaint a letter that he apparently wrote to South Dakota Governor Dennis
Daugaard seeking a pardon. See Compl. at 2. Plaintiff appears to be bringing this
case in response to his pardon request not being granted. See Compl. at 1.

       On November 6, 2014, the government filed a motion to dismiss plaintiffs
claim for lack of subject-matter jurisdiction under RCFC 12(b)(l). In its motion, the
government argues that plaintiff failed to identify any money-mandating source of
law upon which his claim was based. Def.'s Mot. at 3. The government notes that
our court's jurisdiction over contract disputes is limited to situations involving
either express or implied-in-fact contracts. Id. The Constitution, the government
argues, is not an express contract and plaintiff did not allege sufficient factual
allegations to support the conclusion that it is an implied-in-fact contract. Id. at 4.
Furthermore, the government points out that the only remedy sought by plaintiff in
the complaint is declaratory relief, which is not connected to any claim for money
damages and thus is outside the jurisdiction of the court. Id.

       On December 18, 2014, the Clerk's office received from plaintiff a partially
highlighted copy of the government's motion to dismiss. See Order, December 23,
2014. As the Court noted in its order returning the highlighted document to
plaintiff, it was unclear what plaintiff was attempting to demonstrate with the
selective highlighting of the government's motion. Id. While the attempted filing
may have been an effort by plaintiff to demonstrate disagreement with portions of
the government's motion by only highlighting certain parts of the motion's text, the
ambiguity surrounding the document and the fact that it was not a motion,
response, or even a status report, led to the Court's conclusion that it was not a
document that could be filed in this case. Id. at 2. Plaintiff failed to file an
opposition paper, and the deadline for doing so has now passed.

                                 II. DISCUSSION

A. Legal Standards

       Under RCFC 12(b)(l), claims brought before this court must be dismissed
when it is shown that this court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, courts will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B & B Plastics, Inc., 291F.3d1324, 1326
(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter
jurisdiction the court views "the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate"); CBY Design Builders v. United States, 105 Fed. Cl.
303, 325 (2012).

     While a prose plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
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outside this court's jurisdiction from being dismissed, see, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991).

B. Analysis

       In this case, plaintiff is seeking a declaration that "the Constitution of the
United States ... is void." Compl. at 1. Plaintiff seems to claim that he is a third
party beneficiary of the Constitution, and alleges that agents of the United States
abused their fiduciary power by defrauding him and violating his constitutional
rights. Id. As mentioned, plaintiffs claim appears to be spurred by the South
Dakota Governor's denial of his pardon request. Id. at 1-2.

        The jurisdiction of the Court of Federal Claims is governed by the Tucker Act,
which gives this court the authority to render judgment on certain claims seeking
monetary damages against the United States. 28 U.S.C. § 1491 et seq.; United
States v. Mitchell, 463 U.S. 206, 215-18 (1983). Because the Tucker Act does not
create any substantive rights, a plaintiff must identify a separate source of law that
creates a right to money damages for his claim to be within the court's jurisdiction.
Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant
part)); Mitchell, 463 U.S. at 216. The test for determining whether a statute or
regulation can support jurisdiction in this court is whether it can be fairly
interpreted as mandating compensation. See, e.g., United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472-73 (2003); Mitchell, 463 U.S. at 216-17; Fisher v.
United States, 402 F.3d 1167, 1173-74 (Fed. Cir. 2005); Contreras v. United States,
64 Fed. Cl. 583, 588-92 (2005).

       Here, plaintiff does not identify a money-mandating provision, statute, or
regulation in his complaint upon which subject-matter jurisdiction can be based.
Instead, he appears to seek a general declaration that the United States
Constitution is "void." See Compl. at 1. As the United States Supreme Court has
noted, "[n]ot every claim invoking the Constitution ... is cognizable under the
Tucker Act," but rather the claim "must be one for money damages against the
United States." United States v. Mitchell, 463 U.S. 206, 216-17 (1983). Plaintiffs
complaint merely invokes the Constitution in general terms and fails to identify a
specific source of law that "can fairly be interpreted as mandating compensation."
United States v. Testan, 424 U.S. 392, 402 (1976) (quoting Eastport S.S. Corp. v.
United States, 178 Ct.Cl. 599, 607 (1967)). Nor can the Constitution be considered
an express or implied-in-fact contract concerning which a breach action may be
maintained in our court. See Taylor v. United States, 113 Fed. Cl. 171, 173 (2013).
Because plaintiffs complaint fails to identify a money-mandating source of law
                                         -3-
upon which to base his claim, this Court lacks subject-matter jurisdiction over this
case.

       Furthermore, while equitable or declaratory relief can sometimes be available
in Tucker Act suits, it must be "an incident of and collateral to" a money judgment.
James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting 28 U.S.C.
§ 1491(a)(2)).t As the Federal Circuit has held, "the Court of Federal Claims has no
power 'to grant affirmative non-monetary relief unless it is tied and subordinate to
a money judgment."' Id. (quoting Austin v. United States, 206 Ct.Cl. 719, 723
(1975)). Plaintiffs pursuit of a declaration proclaiming the Constitution to be void
is not "tied and subordinate to a money judgment," and therefore such stand-alone
non-monetary relief lies outside the powers of this court.

                                 III. CONCLUSION

       For the reasons stated above, defendant's motion to dismiss this case for lack
of subject-matter jurisdiction pursuant to RCFC 12(b)(l) is GRANTED. The clerk
is directed to close the case.

IT IS SO ORDERED.




t Declaratory relief is also available in bid protests and cases concerning the tax-
exempt status of organizations. See 28 U .S.C. §§ 1491(b)(2), 1507.
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