N OTE : This disposition is nonprecedential. 

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

______________________ MARK WAYNE BALLARD, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2016

- 2167

______________________ Appeal from the United States Court of Federal Claims in No s . 1:15

- cv

- 00723

- SGB, 1:15

- cv

- 00799

- SGB, Judge Susan G. Braden.

______________________

Decided: March 14, 2017

______________________

M ARK W AYNE B ALLARD , Marianna, FL, pro se.

M ELISSA B AKER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for defendant

- appellee . Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., D EBORAH A. B YNUM , A MELIA L ISTER -S OBOTKIN

.

______________________BALLARD v. US 2

Before P ROST , Chief Judge, C LEVENGER , and R EYNA , Circuit Judges.

P ER C URIAM

. Mark Wayne Ballard appeal s a final decision of the United States Court of Federal Claims (“COFC” ) . The COFC correctly dismissed Mr. Ballard’s case for want of jurisdiction. We therefore affirm

. B ACKGROUND

Mr. Ballard and Monte Little Coyote were incarce rated at the Federal Correctional Institution in Marianna, Florida after pleading guilty to crim inal offenses

. Acting

pro se , they each brought several claims against the United States government at the COFC. T heir co mplaints were consolidated.
Ballard and Coyote alleged that their indictments by the government resulted in violations of the Com merce Clause, the Due Process Clauses, and the Takings Clause of the U.S. Constitution ; the Administrative Procedures Act, 5 U.S.C. § 551 et seq. ; the Fort Laramie Treaty of 1851, 11 Stat. 749; and the Fort Laramie Treaty of 1868, 15 Stat. 649. They also alleged that the U.S. government purportedly threatened to withhold federal funding unless an increased amount of “Indian cases” were submitted for federal indictment . Further, they argued that the U.S. government improperly used federal funds to require the Cherokee tribe to relinquish certain treaty rights. See S.A. 3−5, 17−20, 24−26. The government filed a motion to dismiss for lack of jurisdiction and failure to state a claim. After opposing the government’s motion, the plaintiffs moved to amend the ir complaint

. The amended complaint raised alleg ations of wrongful imprisonment and restraint by various federal employees that took place throughout their i ndictment, prosecution, and incarceration. T he plaintiffs claimed that these offenses violated th e “bad men” prov i-BALLARD v. US 3

sion of the 1868 Fort Laramie Treaty, supra ; the Racke teering and Corrupt Organiza tions Act, 18 U.S.C. 1962; the Ex post Facto Clause of the U.S. Consti tution; and the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution. A6− 7 , 12− 16.

The COFC granted the government’s motion to di smiss, finding that it lacks jurisdiction to adjudicate the plaintiffs’ claims. M r. Ballard appeals . We have jurisdi ction p ursuant to 28 U.S.C. § 1295(a)(3).

D ISCUSSION

We review de novo a COFC decision to dismiss for lack of jurisdiction. Banks v. United States , 741 F.3d 1268, 1275 (Fed. Cir. 2014). As the COFC recognized, pro

se filings are to be liberally construed, but that does not alleviate plaintiffs’ burden to establish juris diction

. Co lbert v. United States , 617 F. A pp’x 981, 983 (Fed. Cir. 2015); Reynolds v. Army & Air Force Exch. Serv. , 846 F.2d 746, 748 (Fed. Cir. 1988).
Pursuant to the Tucker Act, t he COFC has limited j urisdiction to resolve certain claims against the United States that are “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. ” 28 U.S.C. § 1491

. But the Tucker Act does not create any substantive right of action against the United States. United States v. Testan , 424 U.S. 392, 398 (1976). Plaintiffs must identify and plead an independent contractual relationship, constitutional provision, federal statute, or executive agency regulation that prov ides a substantive right to money damages. See Todd v. United States , 386 F.3d 1091, 1094 (Fed. Cir. 2004). The source of substantive law must mandate compensation by the federal government ; it must be “money mandating .” Testan, 424 U.S. at 400.BALLARD v. US 4

The COFC properly held that it lacks jurisdiction to address claims based on the Commerce Clause, Ex post Facto Clause, Due Process Clause s, and the Administr ative Procedure Act . None of those contain money

mandating provisions that can be enforced against th e government by a private party. 1 To the extent t hat the Fort Laramie Treaties contain money

- mandating prov isions, the COFC correctly recognized that those mandates have long

- since expired. While the Fifth Amendment Takings Clause can serve as a substant ive cause of action against the government, the COFC correctly held that it lacks jurisdiction in this case because the com plaint failed to allege any “injury in fact,” which is a prerequisite to establishing standing to bring a takings claim. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180−81 (2000)

. With respect to claims included in the amended complaint alleging wrongful impriso nment and restraint by federal officials during plaintiffs’ indictment , prosecution, and i ncarceration

, the COFC correctly held that , absent a certificate of innocence or pardon, it lacks jurisdiction over matters stemming from criminal claims. See Freeman v. United States , F. App’x 892, 894 (Fed. Cir. 2014); see also Joshua v. United States

, 17 F.3d 378, 379 (Fed. Cir. 1994)

. This c ourt generally declines to review issues raised for the first time on appeal. See Sage Prod., Inc. v. Devon Indus. , Inc. , 126 F.3d 1420, 1426 (Fed. Cir. 1997). To the
extent Mr. Ballard now argue s that a separate cause of action brought by a third party could provide the COFC with jurisdiction over his case, those arguments are

1 See, e.g.

, Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 227 (1974); Atlas Corp. v. United States , 15 Cl. Ct. 681, 691 (1988)

, aff’d, 895 F.2d 745 (Fed. Cir. 1990); Wopsock v. Natchees , 454 F.3d 1327, 1333 (Fed. Cir. 2006)

.BALLARD v. US 5

waived

, and unpersuasive in any event

. Final ly, to the
extent Mr. Ballard requests transfer pursuant to 2 8 U.S.C. § 1631, that provision provides the court discretion to transfer in the interest of justice

. We are not persuaded that transfer ring this case is in the interest of justice.
For the reasons explained above, t he COFC correctly dismissed the claims for lack of jur isdiction. We therefore affirm.

AFFIRMED

C OSTS Each party will bear its own costs.