/ 

ORI I AL 

3Jn tbe mlniteb ~tates (!Court of jf eberal <!Claims 

No. 14-825C 

(Filed January 27, 2015) 

NOT FOR PUBLICATION 

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

* 

* 

DAVID ASMUSSEN, * 

* 

Plaintiff, * 

* 

v. * 

* 

THE UNITED STATES, * 

* 

Defendant. * 

* 

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

MEMORANDUM OPINION AND ORDER 

WOLSKI, Judge. 

FILED 

JAN 2 7 rj 

U.S. COURT OF 

FEDERAL CLAIMS 

Pending before the court is defendant's motion to dismiss plaintiffs complaint 

for lack of subject-matter jurisdiction under Rule 12(b)(l) of the Rules of the United 

States Court of Federal Claims ("RCFC"). For the reasons set forth below the Court 

finds that it lacks subject-matter jurisdiction 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, proceeding prose, filed a complaint in this Court on September 5, 2014, 

requesting a declaration "stating with specificity that the Constitution of the United 

States ... is void." Compl. at 1. Plaintiff claims that he is a "[third] party" 

benefiting from the Constitution, which he treats as a contract. Id. He alleges that 

agents of the United States abused their "fiduciary power" by defrauding him and 

therefore violated his rights under the Constitution. Id. Plaintiff attached to his 

complaint a letter that he apparently wrote to South Dakota Governor Dennis 
Daugaard seeking a pardon. See Compl. at 2. Plaintiff appears 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 of subject-matter jurisdiction under RCFC 12(b)(l). In its motion, the 

government argues that plaintiff failed 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's jurisdiction 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 plaintiff did not allege sufficient factual 

allegations to support the conclusion that it is an implied-in-fact contract. Id. at 4. 

Furthermore, the government points out that the only remedy sought by plaintiff in 

the complaint is declaratory relief, which is not connected to any claim for money 

damages and thus is outside the jurisdiction of the court. Id. 

On December 18, 2014, the Clerk's office received from plaintiff a partially 

highlighted copy of the 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 plaintiff was attempting to demonstrate with the 

selective highlighting of the government's motion. Id. While the attempted filing 

may have been an effort by plaintiff to demonstrate disagreement with portions of 

the government's motion by only highlighting certain parts of the motion's text, the 

ambiguity surrounding the 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. Plaintiff failed to file an 

opposition paper, 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 lacks jurisdiction over their subject matter. When 

considering a motion to dismiss for lack of subject-matter jurisdiction, 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 of subject-matter 

jurisdiction the court views "the alleged facts in the complaint as true, and if the 

facts reveal any reasonable basis upon which the non-movant may prevail, 

dismissal is inappropriate"); CBY Design Builders v. United States, 105 Fed. Cl. 

303, 325 (2012). 

While a prose plaintiffs 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's jurisdiction from being dismissed, see, e.g., Henke v. United 

States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction 

bears the burden of establishing it, and must ultimately do so by a preponderance of 

the evidence. See McNutt v. GMAC, 298 U.S. 178, 189 (1936); Reynolds v. Army & 

Air Force 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, plaintiff is seeking a declaration that "the Constitution of the 

United States ... is void." Compl. at 1. Plaintiff seems to claim that he is a third 

party beneficiary of the Constitution, and alleges that agents of the United States 

abused their fiduciary power by defrauding him and violating his constitutional 

rights. Id. As mentioned, plaintiffs claim appears to be spurred by the South 

Dakota Governor's denial of his pardon request. Id. at 1-2. 

The jurisdiction of the Court of Federal Claims is governed by the Tucker Act, 

which gives this court the authority to render judgment 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 plaintiff must identify a separate source of law that 

creates a right to money damages for his claim to be within the court's jurisdiction. 

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) (en bane in relevant 

part)); Mitchell, 463 U.S. at 216. The test for determining whether a statute or 

regulation can support jurisdiction in this court is whether it can be 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, plaintiff does not identify a money-mandating provision, statute, or 

regulation in his complaint upon which subject-matter jurisdiction can be 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 "must be 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 of law 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 of law 

- 3 -
upon which to base his claim, this Court lacks subject-matter jurisdiction over this 

case. 

Furthermore, while equitable or declaratory relief can sometimes be available 

in Tucker Act suits, it must be "an incident of and collateral to" a money judgment. 

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 of Federal Claims has no 

power 'to grant affirmative non-monetary relief unless it is tied and subordinate to 

a money judgment."' Id. (quoting Austin v. United States, 206 Ct.Cl. 719, 723 

(1975)). Plaintiffs pursuit of a declaration proclaiming the Constitution to be void 

is not "tied and subordinate to a money judgment," and therefore such stand-alone 

non-monetary relief lies outside the powers of this court. 

III. CONCLUSION 

For the reasons stated above, defendant's motion to dismiss this case for lack 

of subject-matter jurisdiction pursuant to RCFC 12(b)(l) is GRANTED. The clerk 

is directed to close the case. 

IT IS SO ORDERED. 

t Declaratory relief is also available in bid protests and cases concerning the taxexempt status of organizations. See 28 U.S.C. §§ 1491(b)(2), 1507. 

- 4 -