         In the United States Court of Federal Claims
                                         No. 12-478C

                                    (Filed: January 14, 2013)

                                (NOT TO BE PUBLISHED)



 **********************************
                                               )
 TOMMY LEE STEVENS,                            )
                                               )
                       Plaintiff,              )
                                               )
        v.                                     )
                                               )
 UNITED STATES,                                )
                                               )
                       Defendant.              )
                                               )
 **********************************


       Tommy Lee Stevens, pro se, Mount Olive, North Carolina.

       Gregg Paris Yates, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.


                                     OPINION AND ORDER

LETTOW, Judge.

        Plaintiff, Tommy Lee Stevens, requests monetary damages of $25,000,000 for alleged
physical injuries. Pending before the court is the government’s motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims
(“RCFC”).




                                                   1
                                        BACKGROUND 1

        Mr. Stevens’ claim arises from a surgical procedure that he underwent in November 1994
at Wake Medical Hospital in Raleigh, North Carolina. Compl. at 1. 2 He alleges that the
government, working in concert with state agencies, caused a transceiver to be implanted in him
during the surgery. See id.; Pl.’s Resp. to Def.’s Reply in Support of its Mot. to Dismiss (“Pl.’s
Sur-Reply”) at 9-10. He avers that he was diagnosed as schizophrenic in the late 1990s “because
[he] could not explain the problems [he] was having,” which he claims were actually caused by
the implantation of the transceiver. Compl. at 3. Mr. Stevens states that the transceiver was
implanted as part of a government research program. See id at 2. 3 He asserts that the harm
caused by the implantation of the transceiver has caused him to suffer from “an extreme form of
depression.” Id. He also contends that the transceiver is a “device in [him] that is being used as
a biological weapon and can be used to destroy property, [and] can[,] and is[,] causing several
illnesses due to [the transceiver] controlling the functioning of [bodily] organs.” Id. at 5.

       Mr. Stevens claims that the government, because of its involvement with the
implantation, violated 45 C.F.R. § 46.116, which establishes informed-consent requirements for
government-funded research using human subjects. Compl. at 1. He also cites a notice
published by the United States Department of Health and Human Services in the Federal
Register to support his claim that he has a right to make contact with his Congressperson
regarding his injury. See Compl. at 5-7 (referring to 66 Fed. Reg. 18938-02 (Apr. 12, 2001)); see
also Def.’s Mot. to Dismiss at 5-6. He further maintains that the government has breached an
implied contract with him by refusing to compensate him for harms caused as a result of the
implantation. Pl.’s Sur-Reply at 6. He filed suit in this court on July 27, 2012.

        The government has moved to dismiss, contending that the court does not possess subject
matter jurisdiction over Mr. Stevens’ claims. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 1. It
argues that the court does not possess subject matter jurisdiction because (1) Mr. Stevens has not
identified a money-mandating statute or regulation that supports his claims; (2) he ultimately
seeks relief for a tort, and torts are expressly excluded from the Tucker Act’s grant of
jurisdiction; (3) he asks for an order allowing him to petition Congress and that is relief that this
court is not empowered to grant; and (4) his claim is barred by the six-year statute of limitations
for bringing suit in this court under the Tucker Act, 28 U.S.C. § 2501. See Def.’s Mot. at 5-6;
Def.’s Reply in Support of its Mot. to Dismiss (“Def.’s Reply”) at 1-2.



       1
       This statement of the circumstances relating to Mr. Stevens’ claim is taken from the
complaint and the parties’ briefs related to the government’s motion to dismiss.
       2
       The pages of Mr. Stevens’ complaint are not numbered. The court will treat the pages of
the complaint as well as its attachments as having been numbered sequentially.
       3
         Mr. Stevens has filed other suits in the Court of Federal Claims collaterally related to
these allegations, each of which was dismissed for lack of jurisdiction. See, e.g., Stevens v.
United States, No. 10-509C, 2011 WL 1883010 (Fed. Cl. May 17, 2011); Stevens v. United
States, No. 09-338C, 2009 WL 3650874 (Fed. Cl. Oct. 28, 2009).
                                                  2
                                           ANALYSIS

                                       Standards for Decision

         “[A] ‘court must satisfy itself that it has jurisdiction to hear and decide a case before
proceeding to the merits.’” Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004)
(quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed. Cir. 2002) (citing View
Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997))). In considering a
motion to dismiss for lack of subject matter jurisdiction, the court will “normally consider the
facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 747 (Fed. Cir. 1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Air
Prod. & Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n.4 (Fed. Cir. 1985)).
When the court’s subject matter jurisdiction has been called into question by a motion filed
under RCFC 12(b)(1), however, the burden of establishing the court’s jurisdiction resides with
the party seeking to invoke it, McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S.
178, 189 (1936), and this burden is not satisfied until proven by a preponderance of the evidence,
Reynolds, 846 F.2d at 748 (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969) (quoting
McNutt, 298 U.S. at 189)).

                                     Subject Matter Jurisdiction

                            A. Money-Mandating Statute or Regulation

        The Tucker Act grants this court “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 department.” 28 U.S.C. § 1491(a)(1). The Tucker Act does not create a
substantive right to relief, nor is it, by itself, sufficient to confer jurisdiction on this court. See
United States v. Testan, 424 U.S. 392, 398 (1976); Martinez v. United States, 333 F.3d 1295,
1302-03 (Fed. Cir. 2003) (en banc). Rather, “[a] substantive right must be found in some other
source of law.” United States v. Mitchell, 463 U.S. 206, 216 (1983). Thus, the Tucker Act
essentially acts to waive the government’s sovereign immunity with respect to claims deriving
from a money-mandating source of law. Id. Accordingly, to establish that this court has subject
matter jurisdiction under the Tucker Act, the plaintiff must first point to an independent,
substantive source of law that may be interpreted as mandating payment from the United States
for the injury suffered, and upon successfully doing so, the plaintiff must then present “a non[-
]frivolous assertion that [he or she] is within the class of plaintiffs entitled to recover” under that
money-mandating source. Jan's Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d
1299, 1307 (Fed. Cir. 2008).

        Neither the regulation to which Mr. Stevens cites, 45 C.F.R. § 46.116, nor the notice
published in the Federal Register, 66 Fed. Reg. 18938-02, constitutes a money-mandating source
of law. The regulation establishes the Department of Health and Human Services’ “Policy for
Protection of Human Research Subjects” and prescribes general requirements for gaining
informed consent from a research subject. It does not mandate the payment of money. See 45
C.F.R. § 46.116. The notice, published by the Agency for Healthcare Research and Quality,
Department of Health and Human Services, proposes guidance for the disclosure of records and

                                                   3
information to congressional committees and offices. See 66 Fed. Reg. 18938-02. It does not
mandate the payment of money by the United States. Because neither of these policy guides are
money-mandating sources of law, they do not give this court jurisdiction under the Tucker Act to
hear Mr. Stevens’ claims.

                                       B. Alleged Contract

        Under the Tucker Act, this court also has jurisdiction over claims based “upon any
express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The Tucker Act
nonetheless does not enable the court to adjudicate claims against the United States “based on
contracts implied in law.” Mitchell, 463 U.S. at 218 (citing Merritt v. United States, 267 U.S.
338, 341 (1925)). Consequently, to be enforceable in this court, contracts must either be in
writing or be implied-in-fact. In either case, to have a valid contract with the federal
government, a claiming plaintiff must demonstrate “‘mutual intent to contract[,] including an
offer and acceptance, consideration, and a [g]overnment representative who had actual authority
to bind the [g]overnment.’” California Fed. Bank, FSB v. United States, 245 F.3d 1342, 1346
(Fed. Cir. 2001) (quoting Massie v. United States, 166 F.3d 1184, 1188 (Fed. Cir. 1999)); see
also Aboo v. United States, 86 Fed. Cl. 618, 626 (2009), aff'd, 347 F. App’x 581 (Fed. Cir.
2009); American Fed. Bank, FSB v. United States, 62 Fed. Cl. 185, 194 (2004). For Mr. Stevens
to recover on a breach of contract claim, he “must demonstrate . . . the existence of a valid
contract, a duty arising out of the contract, a breach of that duty, and damages caused by the
breach.” Cooley v. United States, 76 Fed. Cl. 549, 555–56 (2007) (citing San Carlos Irr. &
Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)); see also Aboo, 86 Fed. Cl.
at 626.

        Mr. Stevens has asserted that he entered into a “fraudulent contract” with the government
that purportedly made him a party to government research involving implantation of a
transceiver to which he did not consent. Pl.’s Resp. to Def.’s Mot. to Dismiss Compl. (“Pl.’s
Opp’n”) at 10. His allegations do not demonstrate a mutual intent to contract. They make no
mention of an offer, acceptance, or consideration. Nor do they identify a government
representative who had actual authority to bind the government to a contract. Thus, Mr. Stevens
has failed to demonstrate the existence of a valid contract over which this court has jurisdiction.

        Furthermore, this court does not possess jurisdiction over any kind of tort claim,
including claims “framed under non-tort law” where “the essence of the claim lies in tort.”
Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998); see also Brown v. United States, 105 F.3d
621, 623 (Fed. Cir. 1997); Burtt v. United States, 176 Ct. Cl. 310, 313-14 (Ct. Cl. 1966) (noting
the rule that “a party cannot bring a tortious claim within [the Court of Federal Claims’]
jurisdiction by framing it in implied contract”). The government correctly characterizes
Mr. Stevens’ breach-of-contract claim as concerning “demands for relief for an unconsented
medical procedure . . . [which] sound in tort.” Def.’s Reply at 4. Because tort claims are
expressly excluded from this court’s jurisdiction, and because Mr. Stevens has not presented a




                                                 4
viable contract claim or a claim founded on a money-mandating source of law, this court does
not have jurisdiction over his complaint. 4

                                         CONCLUSION

       For the reasons stated, the government’s motion to dismiss is GRANTED pursuant to
RCFC 12(b)(1). This court does not have subject matter jurisdiction over Mr. Stevens’ claims.
The clerk shall enter judgment in accord with this decision.

       No costs.

       It is so ORDERED.

                                                      _________________________
                                                      Charles F. Lettow
                                                      Judge




       4
         Even if jurisdiction was properly invoked under the Tucker Act, the six-year statute of
limitations prescribed by 28 U.S.C. § 2501 would operate as a jurisdictional bar. The events
underlying Mr. Stevens’ claim occurred in 1994, see Compl. at 1, meaning that the claim expired
in 2000. Mr. Stevens argues that the statute of limitations should be tolled in this instance
because he was unaware of the presence of the transceiver until 1999 and the injury was
“inherently unknowable.” Pl.’s Opp’n at 11, 13. In limited circumstances, the statute of
limitations may be tolled if the “defendant has concealed its acts with the result that plaintiff was
unaware of their existence or . . . [the plaintiff’s] injury was ‘inherently unknowable’ at the
accrual date.” Japanese War Notes Claimants Ass’n of Philippines, Inc. v. United States, 373
F.2d 356, 359 (Ct. Cl. 1967). Mr. Stevens has acknowledged that he was aware of his injuries as
early as 1999. See Pl.’s Opp’n at 11. At the latest, then, the statute of limitations began running
in 1999, and Mr. Stevens’ claim expired in 2005.
                                                  5
