NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

05-1605 John E. McCormac, TREASURER OF THE STATE OF NEW JERSEY and Richard H. Moore, Jr., TREASURER OF THE STATE OF NORTH CAROLINA, Plaintiffs-Appellants,

v. UNITED STATES DEPARTMENT OF THE TREASURY, John W. Snow, SECRETARY OF THE TREASURY, BUREAU OF PUBLIC DEBT, and Van Zeck, COMMISSIONER OF THE BUREAU OF PUBLIC DEBT, Defendants-Appellees.

______ ____________________ DECIDED: June 15, 2006

______ ____________________ Before SCHALL, Circuit Judge , CLEVENGER, Senior Circuit Judge , and BRYSON, Circuit Judge

. CLEVENGER, Senior Circuit Judge

. Plaintiffs-Appellants John E. McCormac, Treasurer of the St ate of New Jersey, and Richard H. Moore, Treasurer of the State of North Caroli na (collectively, the States) appeal the decision of the United States Dist rict Court for the District of New Jersey, transferring this case to the United States Court of Federal Claims. McCormac v. United States Dep't of Treasury , No. 04-4368 (D.N.J. July 29, 2005) ( Transfer Decision ). Because we hold that the Court of Federal Claims does not have jurisdiction over this
case, we reverse and remand to the district court for further proceedings.I The States filed s u it agains t Def endants-Appellees, the United St ates Department of the Treasury, t he Secretary of the Treasury, the Bureau of Public Debt, and the Commissioner of the Bu reau of Public Debt (colle ctively, the Government), invoking the Administrative Procedure Act (APA) , 5 U.S.C. § 702, which per mits judicial review of agency action in actions "seekin g relief other than money damages." The States allege that, under stat e c u stodial es cheat statutes, specifically the New Jersey Uniform Unclaimed Property Act, N.J. Stat. Ann. § 46:30B-1 et seq. and the North Carolina Escheat and Unc l aim ed Proper t y Act, N.C. Gen. Stat. § 116B-1 et se q. (collective l y, the State Acts), they are entitled to acquire and maintain custody of unclaimed property on behalf of the rightful owner s of that property. Thus, the States seek custody of matured but unclaimed Unit ed States s a vings bonds in the possession of the Treasury Department. The Gover n ment moved to dismiss the amended c o mplaint pursu ant to Fed. R. Civ. P. 12( b)(1) or, alternatively, to transfer the action to the Cour t of Federal Claim s pursuant to 28 U.S.C. § 1631. The district court denied the motion to dismiss and granted the motion to transfer, finding that the States' clai ms are "based on contracts," i.e. , the savings bon d s , such that the Tucker Act, as opposed to the APA, pr ovides the appropriate source of subject matter juri sd iction. The States timely appealed that decision to this court, and we have jurisdiction to review the district court's interlocutory order pursuant to 28 U

. S.C. § 1292(d)(4)(A).

05-1605 2II We review questions concerning jurisdiction and transf e r to the Court of Federal Cla ims de novo

. United States v. County of Cook , 170 F.3d 1084, 1087 (Fed. Cir

. 1999). In its brief to this court, the Governm ent concedes that it erred i n requesting a transfer to the Court of Federal Claims, as this case is not within that court's limited jurisdiction. The States agree and request that we reverse the transfer order and remand to the district court for further proceedings. Indeed, both parties are correct that the transfer to the Court of Federal Claims was improper. A case may be tr ansferred to a "court in which the action or appeal could have been brought." 28 U. S.C. § 1631 (2000). In order fo r the Court of Federal Claims to have jurisdiction ov er this case, it must lie within the express jurisdictional mandate of the Tucker Act, which grants the Court of Feder al Claims jurisdiction ov er "any cla i m against the United States founde d either upon the Constituti on, or any Act of Congress or any regulation of an executiv e departmen t, or upon any e x pr ess or implied contract with the United States, or fo r liquidated or unliquidated da mages in cases no t soundi ng in tort." 28 U.S.C. § 1491(a)(1) (2000). However, the Tucker Act does not c r eate any substantive right for monetary damages. United States v. Mitchell , 445 U.S. 535, 538 (1980). Rather, a plaintiff must plea d an independent c ontract ual relationship , constitutional provis ion, feder al statute, or exec utive agency regulation that provides a substantive right to money dam ages. See Cyprus Amax Coal Co. v. Un ited States , 205 F.3d 1369, 1373 (Fed. Cir. 2000) (citing Mitchell , 463 U.S. at 216; United States v. Testan , 424 U.S. 392, 400 (1976)).

05-1605 3The States do not assert a contractual relationship, constitutional provision, federal statute, or executiv e agency regulation that provid es a substantive right to money damages. R a ther, the district court found that the Court of Federal Claims had jurisdiction because "[t]he bonds are contracts between the United States and the bond owners." Transfer Decision , slip op. at 4 (citing Rotman v. United States , 31 Fed. Cl. 724, 725 (1994) ("A U. S. Saving s Bond is a c ontract between the United States and the person to whom it is registered.")). The c ourt determi ned that the States are seeking to be paid the proceeds of the savings bonds, that such pay ment is at odds with the federal regulations governing the bonds, and tha t, as a result, the St ates were seeking to challenge the terms of the bonds. Thus, the court found that " t he States' complaint does ass e rt a claim upon a cont ract with the United States" such that jurisdiction lies within the Court of Federal Claims. Id. at 4-5. Howev e r, although the States are asserting a claim that involves a contract, they
are not as serting a c ontract claim for money damages against the government. The bonds create a contractual relationship bet ween the bond owner s and the Government, but do not create a contractual relationship between t he States and the Government. The States are not named parties to the bond contr a ct, such that there is no privit y between the States and the Government. Further, the Stat es neither ass e rt that they currently have title to the bonds , nor seek tr ansfer of title to the bonds. Rather, they seek custody rights originating in their escheat statutes, such th at they seek to "act[] as a conservator, not as a party to a contract." Conn. Mutual Life Ins. Co. v. Moore , 333 U.S. 541, 547 (1948).

05-1605 4Finally, neither party has c i ted any other contract creating a contractual relationship between the States and the Govern ment, nor any other substantive right for money damages upon wh ich a Tucker Act claim may be founde d. Consequently, the Court of Federal Claims does not have jurisdiction over this case. We reverse the transfer order and remand to the dist rict court for further proceedings.

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