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# ORI I AL 3Jn tbe mlniteb**~tates** 

# (!Court ofjf 

# eberal <!Claims No. 14-825C (Filed January 27, 2015) NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * * 

### * * DAVID ASMUSSEN, * * Plaintiff, * * v. * * 

### THE UNITED STATES, * * Defendant. * 

### * * * * * * * * * * * * * * * * * * * 

### MEMORANDUM OPINIONAND ORDER WOLSKI, Judge. 

# FILED JAN 2 7 rj U.S. COURT OF FEDERAL CLAIMS

Pendingbefore the court is defendant's motion to dismiss plaintiffs complaint for lack ofsubject-matterjurisdiction under Rule 12(b)(l) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"). For the reasons set forth below the Court finds that it lacks subject-matterjurisdiction over plaintiffs claims. Defendant's motion to dismiss is therefore 

### GRANTED. I. 

### BACKGROUND David J. Asmussen, plaintiff, is currently serving a lifetime prison sentence at the South Dakota State Penitentiary. Def.'s Mot. to Dismiss (Def.'s Mot.) at 1. Plaintiff, proceedingprose, filed a complaint in this Court on September 5, 2014, requesting a declaration "statingwith specificity that the Constitution ofthe United States

... is void." Compl. at 1. Plaintiffclaims that he is a "[third] party" benefitingfrom the Constitution, which he treats as a contract. 

### Id. He alleges that agents ofthe United States abused their "fiduciarypower" by defrauding him and therefore violated his rights under the Constitution. 

### Id. Plaintiffattached to his complaint a letter that he apparently wrote to South Dakota Governor DennisDaugaard seeking a pardon. 

### See Compl. at 2. Plaintiffappears to be bringing this case in response to his pardon request not being granted. 

### See Compl. at 1. On November 6, 2014, the government filed a motion to dismiss plaintiffs claim for lack ofsubject-matterjurisdiction under RCFC 12(b)(l). In its motion, the government argues thatplaintifffailed to identify any money-mandating source of law upon which his claim was based. Def.'s Mot. at 3. The government notes that our court'sjurisdiction over contract disputes is limited to situations involving either express or implied-in-fact contracts. 

### Id. The Constitution, the government argues, is not an express contract and plaintiffdid not allege sufficient factual allegations to support the conclusion that itis an implied-in-factcontract. 

### Id. at 4. Furthermore, the government points out that the only remedy sought byplaintiffin the complaint is declaratory relief, which is not connected to any claim for money damages and thus is outside thejurisdiction ofthe court. 

### Id. On December 18, 2014, the Clerk's office received from plaintiffa partially highlighted copy ofthe government's motion to dismiss. 

### See Order, December 23, 2014. As the Court noted in its order returning the highlighted document to plaintiff, it was unclear what plaintiffwas attemptingto demonstrate withthe selective highlighting ofthe government's motion. 

### Id. While the attempted filing may have been an effort byplaintiffto demonstrate disagreement withportions of the government's motionby only highlighting certainparts ofthe motion's text, the ambiguity surroundingthe document and the fact that it was not a motion, response, or even a status report, led to the Court's conclusion that it was not a document that could be filed in this case. 

### Id. at 2

. Plaintifffailed to file an oppositionpaper, and the deadline for doing so has now passed. 

### II. DISCUSSION A. Legal Standards Under RCFC 12(b)(l), claims brought before this court must be dismissed when it is shown that this court lacksjurisdiction over their subject matter. When considering a motion to dismiss for lack ofsubject-matterjurisdiction, courts will normally accept as true all factual allegations made by the pleader and draw all reasonable inferences in the light most favorable to that party. 

### See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); 

### Pixton v. B & 

### B Plastics, Inc., 291F.3d1324, 1326 (Fed. Cir. 2002) (requiring that on a motion to dismiss for lack ofsubject-matter jurisdictionthe courtviews "the alleged facts in the complaint as true, and ifthe facts reveal any reasonable basis upon which the non-movant mayprevail, dismissal is inappropriate"); 

### CBYDesignBuilders v. United States, 105 Fed. Cl. 303, 325 (2012). While a

### proseplaintiffs filings are to be liberally construed, 

### see Erickson v. Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are - 2 -outside this court'sjurisdiction from being dismissed, 

### see, e.g., Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court'sjurisdiction bears the burden ofestablishingit, and must ultimately do so by a preponderance of the evidence. 

### See McNutt v. GMAC, 298 U.S. 178, 189 (1936); 

### Reynolds v. Army & 

### AirForce Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); 

### Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). B. Analysis In this case, plaintiffis seeking a declaration that "the Constitution ofthe United States

... is void." Compl. at 1. Plaintiffseems to claim that he is a third party beneficiary ofthe Constitution, and alleges that agents ofthe United States abused their fiduciary power by defrauding him and violating his constitutional rights. 

### Id. As mentioned, plaintiffs claim appears to be spurredby the South Dakota Governor's denial ofhis pardon request. 

### Id. at 1-2. Thejurisdiction ofthe Court ofFederal Claims is governedby the TuckerAct, which gives this court the authority to renderjudgment on certain claims seeking monetary damages against the United States. 28 U.S.C. 

### § 1491 

### et seq.; United States v. Mitchell, 463 U.S. 206, 215-18 (1983). Because the Tucker Act does not create any substantive rights, a plaintiffmust identify a separate source oflaw that creates a right to money damages for his claim to be within the court'sjurisdiction. 

### Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting 

### Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (enbane in relevant part)); 

### Mitchell, 463 U.S. at 216. The test for determining whether a statute or regulation can supportjurisdictionin this court is whether it canbe fairly interpreted as mandating compensation. 

### See, e.g., United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003); 

### Mitchell, 463 U.S. at 216-17; 

### Fisher v. United States, 402 F.3d 1167, 1173-74 (Fed. Cir. 2005); 

### Contreras v. United States, 64 Fed. Cl. 583, 588-92 (2005). Here, plaintiffdoes not identify a money-mandatingprovision, statute, or regulation in his complaint upon which subject-matterjurisdiction canbe based. Instead, he appears to seek a general declaration that the United States Constitution is "void." 

### See Compl. at 1. As the United States Supreme Court has noted, "[n]ot every claim invoking the Constitution

... is cognizable under the Tucker Act," but rather the claim "mustbe one for money damages against the United States." 

### United States v. Mitchell, 463 U.S. 206, 216-17 (1983). Plaintiffs complaint merely invokes the Constitution in general terms and fails to identify a specific source oflaw that "can fairly be interpreted as mandating compensation

." 

### United States v. Testan, 424 U.S. 392, 402 (1976) (quoting

### Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607 (1967)). Nor can the Constitution be considered an express or implied-in-fact contract concerning which a breach action may be maintained in our court. 

### See Taylor v. United States, 113 Fed. Cl. 171, 173 (2013). Because plaintiffs complaint fails to identify a money-mandating source oflaw - 3 -upon which to base his claim, this Court lacks subject-matterjurisdiction over this case. Furthermore, while equitable or declaratory reliefcan sometimes be available in TuckerAct suits, it must be "anincident ofand collateral to" a moneyjudgment

. 

### James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting 28 U.S.C. § 1491(a)(2)).t As the Federal Circuit has held, "the Court ofFederal Claims has no power 'to grant affirmative non-monetary reliefunless itis tied and subordinate to a moneyjudgment."' 

### Id. (quoting

### Austin v. United States, 206 Ct.Cl. 719, 723 (1975)). Plaintiffs pursuit ofa declarationproclaimingthe Constitution to be void is not "tied and subordinate to a moneyjudgment," and therefore such stand-alone non-monetary relieflies outside the powers ofthis court. 

### III. CONCLUSION For the reasons stated above, defendant's motion to dismiss this case for lack ofsubject-matterjurisdictionpursuantto RCFC 12(b)(l) is 

### GRANTED. The clerk is directed to close the case. 

### IT IS SO ORDERED.

t Declaratory reliefis also available inbidprotests and cases concerningthe taxexempt status oforganizations

. 

### See 28 U

.S.C

. §§ 1491(b)(2), 1507. - 4 -