             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

                                        05-5133


                            FREDERICK J. SONNENFELD,

                                                Plaintiff-Appellant,

                                           v.

                                   UNITED STATES,

                                                Defendant-Appellee.

                          ____________________________

                           DECIDED: November 14, 2005
                          ____________________________


Before MICHEL, LOURIE, and LINN, Circuit Judges.

PER CURIAM.

                                      DECISION

      Frederick J. Sonnenfeld appeals from the decision of the United States Court of

Federal Claims (the “trial court”), awarding summary judgment to the United States (the

“government”) on his claim for student loan repayment under the Department of Army’s

Student Loan Repayment Program (“SLRP”), and dismissing his Fifth Amendment

claim. Sonnenfeld v. United States, No. 03-1345 (Fed. Cl. April 27, 2005) (“Decision”).

Because the trial court did not err in granting summary judgment, we affirm.
                                      BACKGROUND

       Mr. Sonnenfeld, a prior service soldier, re-enlisted in the United States Army

Reserve under the Military Occupation Specialty (“MOS”), 71L-administration, on

November 6, 1993. Decision, slip op. at 1. At that time, he signed a re-enlistment

agreement purporting to enroll him in the SLRP.           Id.   The SLRP is part of the

Department of Army’s Selected Reserve Incentive Program, which authorizes bonuses

and repayment of educational loans. Id., slip op. at 2. In March 1998, Mr. Sonnenfeld

submitted a request for reimbursement of a portion of his student loan to the

Department of Army, and was informed that he was not eligible for the program. Id.

The 104th Division Retention Officer submitted a request for an exception to the policy

on Mr. Sonnenfeld’s behalf that was supported by his commander, but that request was

denied on July 26, 1999. Id. Mr. Sonnenfeld filed a complaint in the United States

District Court for the District of Colorado seeking $20,000 for breach of contract, and the

case was transferred to the Court of Federal Claims. Id. Mr. Sonnenfeld then filed a

complaint in the Court of Federal Claims. Id.

       On September 24, 2004, the Court of Federal Claims dismissed Mr. Sonnenfeld’s

claims based on the re-enlistment agreement and on tort law for lack of subject matter

jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). Id. However, the court found

that it did have jurisdiction under the Tucker Act over Mr. Sonnenfeld’s claim based

upon Army Regulation 135-7. Id. Subsequently, the government moved to dismiss or,

in the alternative, for summary judgment on the ground that Mr. Sonnenfeld was

ineligible for the SLRP at the time of his re-enlistment. Id.




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         The trial court considered the government’s motion to dismiss for failure to state

a claim under Rule 12(b)(6) of the Court of Federal Claims (“RCFC”) as a motion for

summary judgment, and granted the motion on April 27, 2005. The court held that Mr.

Sonnenfeld was ineligible for the SLRP because the provision of the Army Regulation

135-7 upon which he relied, ¶ 5.1-3(c) (eff. July 1, 1990), was rescinded before he re-

enlisted, and Public Law 99-145 does not provide a remedy in this case. Id., slip op. at

4. The court also dismissed Mr. Sonnenfeld’s Fifth Amendment claim for lack of subject

matter jurisdiction because the due process and equal protection clauses of the Fifth

Amendment are not money-mandating, as required by the Tucker Act, 28 U.S.C. §

1491(a)(1). Id., slip op. at 5-6. Mr. Sonnenfeld now appeals to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

                                       DISCUSSION

         We review a grant of summary judgment by the Court of Federal Claims de novo.

Winstar Corp. v. United States, 64 F.3d 1531, 1539 (Fed. Cir. 1995) (en banc), aff'd,

518 U.S. 839 (1996). Summary judgment is appropriate if “there is no genuine issue as

to any material fact and . . . the moving party is entitled to a judgment as a matter of

law.”    RCFC 56(c).       We also review legal determinations de novo, including the

dismissal of a complaint by the Court of Federal Claims for lack of subject matter

jurisdiction. Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1104 (Fed. Cir.

2004).

         On appeal, Mr. Sonnenfeld raises three challenges to the decision of the trial

court. First, he argues that his eligibility for the SLRP is governed by the July 1, 1990

version of Army Regulation 135-7 ¶ 5.1-3(c) rather than the October 1, 1994 version




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because the change to the former provision was not authorized by the Administrative

Assistant to the Secretary of the Army.         Appellant’s Br. at 1-2.     Secondly, Mr.

Sonnenfeld argues that the trial court erred in not requiring the government to produce

documents regarding the change to Army Regulation 135-7 ¶ 5.1-3(c) (eff. July 1,

1990), pursuant to his Freedom of Information Act (FOIA) request. Id. at 2-3. Third, Mr.

Sonnenfeld argues that because he was promised the SLRP at the time of re-

enlistment, the government’s failure to honor its commitment violates the Fifth

Amendment. Id. at 4.

       The government responds that the rescission of Army Regulation 135-7 ¶ 5.1-

3(c) (eff. July 1, 1990) was properly authorized, and became effective January 1, 1992.

Appellee’s Br. at 10-11. Secondly, the government argues that its failure to produce

documents pursuant to Mr. Sonnenfeld’s FOIA request is not properly before this court

because Mr. Sonnenfeld has raised this issue for the first time on appeal. Id. at 6-7.

The government maintains that even if Mr. Sonnenfeld had raised the FOIA issue

below, the trial court would have lacked subject matter jurisdiction to consider such a

claim because the Tucker Act does not confer jurisdiction over non-money-mandating

claims. Id. at 7-8. Third, the government argues that the trial court lacked jurisdiction to

entertain Mr. Sonnenfeld’s Fifth Amendment claim because the Fifth Amendment does

not mandate payment of money damages for alleged violations. Id. at 11-12.

       We agree with the government that the trial court did not err in granting summary

judgment. Army Regulation 135-7 ¶ 5.1-3 (eff. July 1, 1990) provides that prior service

(“PS”) applicants and in-service personnel are eligible for the SLRP if they “contract for

an MOS in which they are qualified, or in a critical MOS that has been established by




05-5133                                  -4-
Headquarters, Department of Army for the SLRP increased incentive.” However, the

Department of Army rescinded that provision in the October 1, 1994 version, which

struck out the clause reading “PS applicants and in-service personnel who contract for

an MOS in which they are qualified” and added, “[e]xcept under the drill sergeant

program, contracts on or after 1 Jan 92 to serve in an MOS authorized by HQDA for the

SLRP incentive.” In the trial court, Mr. Sonnenfeld, relying on the July 1, 1990 version

of Army Regulation 135-7 ¶ 5.1-3, contended that he was eligible for the SLRP incentive

because he was a prior service soldier who contracted for and remained in an MOS in

which he was already qualified. Decision, slip op. at 4. The trial court rejected his

argument because the Department of Army rescinded that provision, effective January

1, 1992. Id. We agree with the trial court’s analysis.

      Mr. Sonnenfeld provides no evidence to support his argument that the change to

Army Regulation 135-7 ¶ 5.1-3 (eff. July 1, 1990) originated with the United States Army

Recruiting Command (USARC), and therefore was not authorized before the date of his

enlistment. Appellant’s Br. at 1. Lieutenant Colonel Kenneth D. Curry asserted in his

declaration that a January 1992 USARC message informed commanders of a change in

Army Regulation 135-7 ¶ 5.1-3(c) (eff. July 1, 1990) that was made by the Department

of Army. Appellee’s Supp. App. at 26. The USARC message also states that it was a

“retransmission in part and [was] combined with other referenced messages,” including

a January 1991 message from Headquarters Department of Army. Id. at 57-58. Even

though the government did not submit the actual communication into evidence, there is

no genuine issue of material fact that the Department of Army sent the message

effecting the change to Army Regulation 135-7 ¶ 5.1-3 (eff. July 1, 1990).




05-5133                                 -5-
       Because the Department of Army was the originator of the message rescinding

Army Regulation 135-7 ¶ 5.1-3(c) (eff. July 1, 1990), the change was authorized, and

took effect on January 1, 1992. The fact that Mr. Sonnenfeld re-enlisted before the

rescission was published in the next printing of the regulation does not change the

effective date of the amendment.       Therefore, the court properly concluded that the

regulation on which Mr. Sonnenfeld relies, Army Regulation 135-7 ¶ 5.1-3(c) (eff. July 1,

1990), was rescinded before Mr. Sonnenfeld re-enlisted in November 1993, and does

not benefit him.

       Mr. Sonnenfeld contends that the trial court erred in not requiring the government

to produce documents responsive to his FOIA request. Appellant’s Br. at 2-3. Because

Mr. Sonnenfeld raises this argument for the first time on appeal, we decline to consider

it. Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Arguments not made

in the court or tribunal whose order is under review are normally considered waived.”).

       Finally, the trial court was correct in holding that it lacked jurisdiction to consider

Mr. Sonnenfeld’s Fifth Amendment claim. Decision, slip op. at 5-6. The Tucker Act

confers jurisdiction in the Court of Federal Claims over claims against the United States

founded upon the Constitution, an Act of Congress, a regulation of an executive

department, or an express or implied contract. 28 U.S.C. § 1491(a)(1). Courts have

consistently construed this provision as limiting the Court of Federal Claims’ jurisdiction

to money-mandating claims, i.e., where the Constitution, regulation, or statute require

compensation by the government for any damage sustained. Smith v. Secretary of

Army, 384 F.3d 1288, 1292 (Fed. Cir. 2004). The Fifth Amendment does not mandate

compensation by the government to Mr. Sonnenfeld for alleged violations of due




05-5133                                  -6-
process and equal protection. Further, Mr. Sonnenfeld has not alleged a taking of any

property interest under the Fifth Amendment that would require compensation.

Therefore, the court did not err in dismissing Mr. Sonnenfeld’s Fifth Amendment claim.

      We have considered Mr. Sonnenfeld’s remaining arguments and find them

unpersuasive.    We therefore affirm the decision of the trial court granting the

government’s motion for summary judgment and dismissing Mr. Sonnenfeld’s

complaint.




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