                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                     ___________

                                     No. 00-1904
                                     ___________

Nathaniel Taylor, Sr., et al.,            *
                                          *
                    Appellants,           *           Appeal from the United States
                                          *           District Court for the Eastern
             v.                           *           District of Arkansas
                                          *
United States of America,                 *
                                          *
                     Appellees.           *
                                     ___________

                             Submitted: January 10, 2001

                                  Filed: April 12, 2001
                                      ___________

Before RICHARD S. ARNOLD and BOWMAN, Circuit Judges, and KYLE,
District Judge.1


KYLE, District Judge.




      1
        The HONORABLE RICHARD H. KYLE, United States District Judge for
the District of Minnesota, sitting by designation.
      This is an appeal from an Order of the district court2 dismissing a Tucker Act3
Complaint for failing to state a claim upon which relief can be granted. We affirm.
      Accepting the allegations of the Complaint as true, the eleven individual
Appellants are all members of the same family. Ten of the eleven Appellants were
present at the home of Nathaniel Taylor, Sr. and Lizzie Taylor in Little Rock,
Arkansas, early in the morning of April 12, 1996. At about 6:45 a.m., United States
Marshals “beat” on their door and “forced” their way into the house. The marshals
spent approximately thirty-five minutes searching every room in the house --
including the bedrooms -- without the consent of the Appellants. The marshals did
not display a search warrant or claim such a warrant existed. The marshals did
represent that they had an arrest warrant for a person unknown to the Taylors, for
whom they were searching the house. The marshals never displayed the arrest
warrant, however. After completing their search of the Lizzie and Nathaniel Taylor’s
home, the marshals traveled to the home of the eleventh family member, Reverend
Craig Taylor, and searched his home as well. Again, the marshals never produced a
warrant in connection with their search.

       The Taylors initially brought this action against the United States pursuant to
the Federal Tort Claims Act. After the government filed a motion to dismiss for lack
of subject matter jurisdiction and for failure to state a claim upon which relief can be
granted, the Taylors amended their complaint by dropping the Federal Tort Claims
Act claim and substituting, as the sole grounds for relief, a claim under the Tucker
Act. Specifically, the Taylors alleged in the Amended Complaint that the marshals
violated their constitutional rights under the Fourth Amendment’s guarantee to be
free from unreasonable searches and seizures. Each appellant sought an award of
damages not to exceed $10,000, damages for mental and emotional distress, costs,


      2
       The HONORABLE STEPHEN M. REASONER, United States District
Judge for the Eastern District of Arkansas.
      3
       28 U.S.C. §§ 1346, 1491.
                                           2
and attorneys’ fees.

       The United States moved to dismiss the Amended Complaint on the ground
that the Taylors could not state a claim under the Tucker Act for monetary damages
arising out of a violation of the Fourth Amendment. The district court granted the
motion to dismiss and this appeal followed.

      We review de novo a dismissal for failure to state a claim upon which relief can
be granted. Ring v. First Interstate Mortgage Inc., 984 F.2d 924, 926 (8th Cir. 1993).
To sue the United States, Appellants must show both a waiver of sovereign immunity
and a grant of subject matter jurisdiction. V S Ltd. Partnership v. Dep’t of Housing
& Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citing Presidential Gardens
Assocs. v. United States, 175 F.3d 132, 139 (2d. Cir. 1999)).

       Section 1346 of Title 28 of the United States Code, called the Little Tucker
Act, provides for concurrent jurisdiction in the district courts and the United States
Court of Federal Claims for any “civil action or claim against the United States, not
exceeding $10,000 in amount, founded either upon the Constitution, or any Act of
Congress . . . .” 28 U.S.C. § 1346(a)(2). Section 1346 also expressly waives the
United States’ sovereign immunity where the law involved -- Constitution, statute or
regulation -- creates a substantive right to recover money damages against the United
States. See United States v. Testan, 424 U.S. 392, 398 (1976). The substantive right
to recover money damages does not exist in the Tucker Act itself; rather, “the
claimant must demonstrate that the source of substantive law he relies upon ‘can
fairly be interpreted as mandating compensation by the Federal Government for the
damages sustained.’” See United States v. Mitchell, 463 U.S. 206 216-17 (1983).
Therefore, the district court properly focused its inquiry on whether the Fourth
Amendment can fairly be interpreted as mandating compensation by the United States
for the injury the Taylors sustained.



                                          3
       The District Court correctly determined, from its review of the relevant cases
involving allegations of violation of Fourth Amendment rights, that violations of the
“unreasonable searches and seizures” clause of the Fourth Amendment cannot fairly
be read as requiring compensation for damages sustained. See Order at 6 (citing
Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997); Crocker v. United States,
37 Fed. Cl. 191, 194-95 (1997); Lark v. United States, 17 Cl. Ct. 567, 569 (1989);
Noel v. United States, 16 Cl. Ct. 166, 169 (1989); LaChance v. United States, 15 Cl.
Ct. 127, 130 (1988); and Royce v. United States, 1 Cl. Ct. 225, 226 (1982)). Where
there is no substantive right to recover damages from the federal government,
§ 1346(a)(2) does not act as a waiver of the sovereign immunity of the United States.
The Taylors cannot obtain relief from the United States under the Tucker Act for the
actions of the U.S. Marshals.4 Accordingly, the district court’s Order dismissing the
Taylors’ Amended Complaint is affirmed.



A true copy.

               Attest:

                           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




      4
         It appears that the Taylors could have brought a “constitutional tort” claim
against the deputy marshals in their individual capacities under Bivens v. Six Unknown
Agents, 403 U.S. 388 (1971).

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