N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CLARENCE GANAWAY

, Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee.

______________________

2013

- 5031

______________________

Appeal from the United States Court of Federal
Claims in No. 12

- CV

- 654 , Judge Francis M. Allegra

.

______________________

Decided: February 10, 2014

______________________

C LARENCE G ANAWAY

, of Mansfield, Ohio , pro se.

C HRISTOPHER J. C ARNEY , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for defendant

appellee. With him on the brief were S TUART F. D ELERY
, Assistant Attorney General, B RYANT G. S NEE , Acting Director, and F RANKLIN E. W HITE
, J R ., Assistant Director.

______________________

Before O’M ALLEY

, R EYNA

, and W ALLACH

, Circuit Judges.G ANAWAY v. US 2

P ER C URIAM

. Clarence Ganaway appeals from the judgment of the United States Court of Federal Claims dismissing his complaint for lack of subject matter jurisdiction. This
court affirms.

B ACKGROUND

On September 28, 20 12, Mr. Ganaway filed a co mplaint with the Court of Federal Claims alleging civil rights violations and seeking “monetary damages

, pun itive damages ,” and “any other restitution remedies that apply to the plaintiff in equity.” App. 4 –5. His complaint

state s that minority children in inner cities receive “inferior education” whereas children in the suburbs have access to higher learning. App. 7

. “Due to under[

- ]education,” he alleges that minority children “fall into the trap of disparat[e] sentenc ing to long harsh prison
time.” App. 8. He argues this disparity is a violation of the Equal Protection Clause of the Fourteenth Amen dment, App. 12, and seeks relief “under the Civil Rights Act 42 U.S.C. § 1983, ” App. 6

. O n October 2, 2012, the Court of Federa l Claims sua sponte is sued an order dismissing the complaint for lack of jurisdiction

. Mr. Ga naway filed this timely appeal. He failed to pay this court’s docketing fee, however, and on February 15, 2013, his appeal was dismissed for failure to
prosecute

. Ganaway v. United States , No. 2013

- 5031 (Fed. Cir. Feb. 15, 2013) (ECF No. 7) (order dismissing appeal for failure to prosecute in accordance with the rules). On September 20, 2013, this court granted Mr. Ganaway’s motion to reopen his appeal, and order ed him to file an
informal brief within twenty

- one days. Ganaway v. United
States , No. 2013

- 5031 (Fed. Cir. Sept. 20, 2013) (ECF No. 16) (order granting motion to reopen appeal). We now
consider Mr. Ganaway’s informal brief and the Gover nment’s response.G ANAWAY v. US 3

D ISCUSSION

Dismissal for lack of jurisdiction is a question of law,
which this court reviews de novo. Bank of Guam v. United
States , 578 F.3d 1318, 1325 (Fed. Cir. 2009). The plaintiff bears the burden to establish jurisdiction by a preponde rance of the evidence. Trusted Integration, Inc. v. United
States , 659 F.3d 1159, 1163 (Fed. Cir. 2011). “In dete rmining jurisdiction, a court must accept as true all undi sputed facts asserted in the plaintiff’s complaint and draw
all reasonable inferences in favor o f the plaintiff.” Id.

Drawing all inferences in Mr. Ganaway’s favor, the
Court of Federal Claims was correct to dismiss his co mplaint for lack of jurisdiction. The Tucker Act , which provides jurisdiction in the Court of Federal Claims,

states:

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 department, or u pon any express or implied contract with the Uni ted States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012)

. The Tucker Act is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan , 424 U.S. 392, 398 (1976). A plaintiff must also assert a right to recover under a separate money- mandating source of law

. When, as here, there is no allegation of a contract with the
United St ates, the plaintiff must show that “t he constit utional provision, statute, or regulation in question e xpressly creates a substantive right enforceable against the federal government for money damages.” LeBlanc v.
United States , 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing
Testan

, 424 U.S. at 398 ).G ANAWAY v. US 4

The laws on which Mr. Ganaway relies are not money mandating. The Equal Protection Clause of the Fou rteenth Amendment “do[es] not mandate payment of money by the government.” LeBlanc , 50 F.3d at 1028.
Section 19 83 of the Civil Rights Act of 1964 also does not create a right “against the federal government for money damages,” id. , but is instead a damages remedy against persons acting under the color of state law. See Davis v.
Passman , 442 U.S. 228, 248 (1979) (“By virtue of 42 U.S.C. § 1983, a damages remedy is already available to redress injuries such as petitioner’s when they occur under color of state law.”). To the extent Mr. Ganaway asserts a due process claim under the Fifth an d Fou rte enth Amendments, or a tort claim, these claims also do not establish jurisdiction. See LeBlanc , 50 F.3d at 1028 (holding there is no Tucker Act jurisdiction based on the
Due Process clauses of the Fifth and Fourteenth Amen dments); 28 U.S.C. § 1346( b)(1) (granting district courts exclusive jurisdiction to hear tort claims against the United States pursuant to the Federal Tort Claims Act ) ; see also Berdick v. United States , 612 F.2d 533, 536 (Ct. Cl. 1979)

. On appeal, Mr. Ganaway argues that the Court of Federal Claims erred in failing to consider 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2283, 2284, and 1915(e)(1). These provisions have no bearing on jurisdiction in the Court of Federal Claims, however. Sections 1331 , 1343, 2201, and 2202 provide jurisdiction in federal district courts, not the Court of Federal Claims. Sections 2283 and 1915(e) are not jurisdictional provisions ; the former
addresses w hen federal courts may enjoin state court proceedings, and the latter describes when courts may

appo int counsel to “represent any person unable to afford

coun sel .”

Mr. Ganaway also asserts jurisdiction under an unspecified “Rule 65.” If he refers to Rule 65 of the Rules of the United States Court of Federal Claims, that ruleG ANAWAY v. US 5

sets various limits on the court’s exercise of injunctive relief. It does not provide for jurisdiction.

Mr. Ganaway also asserts error in the Court of Fede ral Claims ’ alleged failure to take into account “the main fact of inferior education in the in[n]e r cit[ies] of Amer ica.” Appellant’s Br. 1. He states that most “minority school district[s] receive nearly $4000 less per pupil” and “78% of [their] teachers . . . do not teach in [their] accre dited subject area.” Id. Although these distressing factual

a llegations may well be true, they do not create for Mr. Ganaway a cause of action in the Court of Federal Claims. Nor do they alter the jurisdic tional analysis here; Mr. Ganaway has failed to identify a money

- mandating source
of law. 1

C ONCLUSION

This court accordingly affirms the Court of Federal
Claims ’ dismissal of Mr. Ganaway’s complaint.

AFFIRMED

No costs

.

1 Mr. Ganaway requests this court to “allow disco very” pursuant to the Federal Rules of Civil Proc e dure 26 through 37. Appellant’s Br. 2. Because the Court of Federal Claims lacked jurisdiction, however, it had no power to order discovery.