NOTE: This disposition is nonprecedential.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 Nos. 1:15-cv-00723-SGB, 1:15-cv-00799-SGB, 

Judge Susan G. Braden.

______________________ 

Decided: March 14, 2017

______________________ 

MARK WAYNE BALLARD, Marianna, FL, pro se.

MELISSA BAKER, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH 

A. BYNUM, AMELIA LISTER-SOBOTKIN. 

______________________ 
2 BALLARD v. US

Before PROST, Chief Judge, CLEVENGER, and REYNA,

Circuit Judges.

PER CURIAM. 

Mark Wayne Ballard appeals 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. 

BACKGROUND

Mr. Ballard and Monte Little Coyote were incarcerated at the Federal Correctional Institution in Marianna, 

Florida after pleading guilty to criminal offenses. Acting 

pro se, they each brought several claims against the 

United States government at the COFC. Their complaints were consolidated. 

Ballard and Coyote alleged that their indictments by 

the government resulted in violations of the Commerce 

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 

their complaint. The amended complaint raised allegations of wrongful imprisonment and restraint by various

federal employees that took place throughout their indictment, prosecution, and incarceration. The plaintiffs 

claimed that these offenses violated the “bad men” provi-
BALLARD v. US 3

sion of the 1868 Fort Laramie Treaty, supra; the Racketeering and Corrupt Organizations Act, 18 U.S.C. 1962;

the Ex post Facto Clause of the U.S. Constitution; and the 

Sixth, Eighth, and Fourteenth Amendments of the U.S. 

Constitution. A6−7, 12−16.

The COFC granted the government’s motion to dismiss, finding that it lacks jurisdiction to adjudicate the 

plaintiffs’ claims. Mr. Ballard appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

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 jurisdiction. Colbert v. United States, 617 F. App’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, the COFC has limited jurisdiction 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 provides 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. 
4 BALLARD v. US

The COFC properly held that it lacks jurisdiction to 

address claims based on the Commerce Clause, Ex post 

Facto Clause, Due Process Clauses, and the Administrative Procedure Act. None of those contain moneymandating provisions that can be enforced against the 

government by a private party.1 To the extent that the 

Fort Laramie Treaties contain money-mandating provisions, the COFC correctly recognized that those mandates 

have long-since expired. While the Fifth Amendment 

Takings Clause can serve as a substantive cause of action 

against the government, the COFC correctly held that it 

lacks jurisdiction in this case because the complaint 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 imprisonment and restraint by federal officials during plaintiffs’

indictment, prosecution, and incarceration, 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 court 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 argues 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. Finally, to the 

extent Mr. Ballard requests transfer pursuant to 28 

U.S.C. § 1631, that provision provides the court discretion 

to transfer in the interest of justice. We are not persuaded 

that transferring this case is in the interest of justice. 

For the reasons explained above, the COFC correctly 

dismissed the claims for lack of jurisdiction. We therefore 

affirm. 

AFFIRMED

COSTS

Each party will bear its own costs.