NOTE: This disposition is nonprecedential.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

______________________ 

CLARENCE GANAWAY, of Mansfield, Ohio, pro se. 

CHRISTOPHER J. CARNEY, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendantappellee. With him on the brief were STUART F. DELERY, 

Assistant Attorney General, BRYANT G. SNEE, Acting 

Director, and FRANKLIN E. WHITE, JR., Assistant Director.

______________________ 

Before O’MALLEY, REYNA, and WALLACH, Circuit Judges.
2 GANAWAY v. US

PER CURIAM. 

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. 

BACKGROUND

On September 28, 2012, Mr. Ganaway filed a complaint with the Court of Federal Claims alleging civil 

rights violations and seeking “monetary damages, punitive damages,” and “any other restitution remedies that 

apply to the plaintiff in equity.” App. 4–5. His complaint 

states 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] sentencing to long harsh prison 

time.” App. 8. He argues this disparity is a violation of 

the Equal Protection Clause of the Fourteenth Amendment, App. 12, and seeks relief “under the Civil Rights 

Act 42 U.S.C. § 1983,” App. 6. 

On October 2, 2012, the Court of Federal Claims sua 

sponte issued an order dismissing the complaint for lack 

of jurisdiction. Mr. Ganaway 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 ordered 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 Government’s response. 
GANAWAY v. US 3

DISCUSSION

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 preponderance of the evidence. Trusted Integration, Inc. v. United 

States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). “In determining jurisdiction, a court must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw 

all reasonable inferences in favor of the plaintiff.” Id. 

Drawing all inferences in Mr. Ganaway’s favor, the 

Court of Federal Claims was correct to dismiss his complaint 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 upon any express or implied contract with the United 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 States, the plaintiff must show that “the constitutional provision, statute, or regulation in question expressly 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). 
4 GANAWAY v. US

The laws on which Mr. Ganaway relies are not money 

mandating. The Equal Protection Clause of the Fourteenth Amendment “do[es] not mandate payment of 

money by the government.” LeBlanc, 50 F.3d at 1028. 

Section 1983 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 and Fourteenth 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 Amendments); 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 when federal courts may enjoin state court 

proceedings, and the latter describes when courts may 

appoint counsel to “represent any person unable to afford 

counsel.” 

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 rule 
GANAWAY 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 Federal Claims’ alleged failure to take into account “the main 

fact of inferior education in the in[n]er cit[ies] of America.” 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] accredited subject area.” Id. Although these distressing factual 

allegations 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 jurisdictional analysis here; Mr. 

Ganaway has failed to identify a money-mandating source 

of law.1 

CONCLUSION

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 discovery” pursuant to the Federal Rules of Civil Procedure 26 

through 37. Appellant’s Br. 2. Because the Court of 

Federal Claims lacked jurisdiction, however, it had no 

power to order discovery.