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 dec ision of the United States Court of Federal Claims (the “trial court”), awarding summary judgment to t he United States (the “government”) on his claim for student loan r epayment under the Department of Army’s Student Loan Repayment Progr am (“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 Spec ialty (“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 Inc entive Program, whic h 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 104 th Division Retention Officer submitted a request for an ex ception 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 comp laint in the United States District Court for the District of Colorado s eeking $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 F ederal 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 Tu cker 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 judgm ent on the ground that Mr. Sonnenfeld was ineligible for the SLRP at the time of his re-enlistment. Id.

05-5133 -2-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 Ap ril 27, 2005. The co urt held that Mr. Sonnenfeld was ineligible for the SLRP becaus e the provision of the Army Regulation 135-7 upon which he relied, ¶ 5. 1-3(c) (eff. July 1, 1990), was rescinded before he reenlisted, 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-mandati ng, 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 judgm ent 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 j udgment is appropriate if “ther e 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 c hallenges to the decision of the trial court. First, he argues that his eligibility fo r the SLRP is governed by the July 1, 1990 version of Army Regulation 135-7 ¶ 5.1-3(c) rather than the Oc tober 1, 1994 version

05-5133 -3-because the change to the former provision wa s not authorized by the Administrative Assistant to the Secretary of the Army. Appellant’s Br. at 1-2. Secondly, Mr. Sonnenfeld argues that t he trial court erred in not requi ring the government to produce documents regarding the change to Army Regul ation 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 prom ised the SLRP at the time of reenlistment, the government’s failure to honor its commitment violates the Fifth Amendment. Id. at 4. The government responds t hat the rescission of Army Regulation 135-7 ¶ 5.1- 3(c) (eff. July 1, 1990) was properly authoriz ed, and became effective January 1, 1992. Appellee’s Br. at 10-11. Secondly, the gov ernment argues that it s 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 subjec t matter jurisdiction to consider such a claim because the Tucker Act does not conf er jurisdiction over non-money-mandating claims. Id. at 7-8. Third, the gover nment argues that the trial court lacked jurisdiction to entertain Mr. Sonnenfeld’s Fi fth Amendment claim because the Fifth Amendment does not mandate payment of money dam ages for alleged violations. Id. at 11-12. We agree with the government t hat the trial court did not err in granting summary judgment. Army Regulation 135-7 ¶ 5.1-3 (eff. Ju ly 1, 1990) provides that prior service (“PS”) applicants and in-service personnel are elig ible for the SLRP if they “contract for an MOS in which they are qualif ied, or in a critical MOS that has been established by

05-5133 -4-Headquarters, Department of Army for the SL RP increased incentive.” However, the Department of Army rescinded t hat 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. S onnenfeld, relying on the Ju ly 1, 1990 version of Army Regulation 135-7 ¶ 5.1- 3, contended that he was eligib le 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 D epartment of Army rescinded that provision, effective January 1, 1992. Id. We agree with the trial court’s analysis. Mr. Sonnenfeld provides no evidence to s upport 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 authoriz ed 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 mess age 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. A pp. at 26. The USARC message also states that it was a “retransmission in part and [was] combined wit h other referenced messages,” including a January 1991 message from Headquarters Department of Army. Id. at 57-58. Even though the government did not s ubmit the actual communicati on into evidence, there is no genuine issue of material fact that t he 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. Ju ly 1, 1990), the cha nge was authorized, and took effect on January 1, 1992. The fact that Mr. Sonnenfeld re-enlisted before the rescission was published in the next printi ng of the regulati on does not change the effective date of the amendment. Therefor e, 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 r equest. Appellant’s Br. at 2-3. Because Mr. Sonnenfeld raises this argument for the fi rst 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 holdi ng 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 agai nst the United States founded upon the Constitution, an Act of C ongress, a regulati on of an executive department, or an express or im plied contract. 28 U.S.C. § 1491(a)(1). Courts have consistently construed this prov ision as limiting the Court of Federal Claims’ jurisdiction to money-mandating claims, i.e. , where the Constitution, regul ation, 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 dismissi ng Mr. Sonnenfeld’s Fifth Amendment claim. We have considered Mr. Sonnenfeld’s remaining arguments and find them unpersuasive. We therefor e affirm the decision of t he trial court granting the government’s motion for summary judgm ent and dismissing Mr. Sonnenfeld’s complaint.

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