Niedbala v. United States

37 Fed. Cl. 43, 1996 WL 684182
CourtUnited States Court of Federal Claims
DecidedNovember 22, 1996
DocketNo. 95-734 C
StatusPublished
Cited by9 cases

This text of 37 Fed. Cl. 43 (Niedbala v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Niedbala v. United States, 37 Fed. Cl. 43, 1996 WL 684182 (uscfc 1996).

Opinion

OPINION and ORDER

TURNER, Judge.

This case stands on defendant’s motion filed February 5, 1996 to dismiss plaintiffs complaint for lack of subject matter jurisdiction. We conclude that defendant’s motion must be granted.

I

Plaintiff and his wife are American citizens who reside on Terceira Island, Azores, Portugal. Plaintiff retired from the U.S. Air Force in 1962. The Lajes Field, Azores, U.S. Air Force base security police issued to plaintiff base license plates for two automobiles owned by him and operated in the Azores. It apparently was standard practice from 1987 through 1994 for the base security police to issue base license plates to retired U.S. military personnel residing in the Azores. By registering their cars with the base, retirees were able to avoid paying Portuguese import tariffs and vehicle registration fees.

On January 6, 1995, Portuguese officials became aware of the issuing of base license [45]*45plates to retirees. American and Portuguese officials agreed that the issuance of such plates to retired personnel fell outside the Portuguese-American Technical Agreement of 1984, which regulates the American military presence in the Azores. The Portuguese government established a penalty for the wrongfully imported and maintained cars of approximately $6,000 per vehicle. The U.S. Consulate in Ponte Delgada, Azores, intervened on behalf of the retirees, and as a result, the fine was reduced to $200 per vehicle.

On January 20, 1995, Portuguese customs officials apparently seized plaintiffs 1987 Dodge Omni and 1984 Toyota Tercel. Plaintiff asserts that he was unable to pay an assessed import duty equivalent to $35,000 and that he “had to donate” the cars to the Portuguese customs officials, with full tanks of gas, and pay a fine for each car.

Plaintiffs wife wrote to General John M. Loh, Commander, Langley Air Force Base, regarding the loss of their cars. In a letter dated March 13, 1995, General Loh suggested that plaintiff contact the Office of the Staff Judge Advocate at Lajes Field. On June 7, 1995, plaintiff filed a claim for $10,-500 as reimbursement of the cost of the vehicles and other expenses resulting from the improper issuance of the base license plates. Defs Mot.App. at 3. By letter of July 20, 1995, Major Laurence M. Soybel, Staff Judge Advocate, Lajes Field, denied plaintiffs claim. The letter indicated that the claim was reviewed under Air Force Instruction 51-501, Chapter 3, Military Claims Act, and 10 U.S.C. § 2733. Major Soybel stated that the claim was denied as there was no evidence of negligence on the part of the U.S. government or a U.S. government employee.

Plaintiff appealed' this decision. On September 8, 1995, Lt. Col. Carla S. Walgen-bach, Chief, General and International Tort Branch, Tort Claims and Litigation Division, Air Force Legal Services Agency, denied the appeal. Lt. Col. Walgenbach explained that plaintiff had failed to demonstrate negligence by a U.S. government employee. “While you were erroneously allowed to register your vehicles with the U.S. Armed Forces, this was not the reason for your present expenses. Your expenses were incurred as a result of Portuguese law, of which you are presumed to be aware.” Def.’s Mot.App. at 1. This was the final denial of the claim processed under the Military Claims Act, 10 U.S.C. § 2733. Plaintiff then presented his claim for $10,500 to this court.

II

A

Absent a specific statute vesting the Court of Federal Claims with jurisdiction, see e.g., 28 U.S.C. § 1498 (damage claims for unlicensed use of patents and copyrights), a claim for monetary relief may be predicated only on the Tucker Act, 28 U.S.C. § 1491(a). The Tucker Act grants the Court of Federal Claims jurisdiction to render judgment upon any monetary claim against the United States “founded 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” in cases not sounding in tort. 28 U.S.C. § 1491(a)(1).

While the Tucker Act provides jurisdiction to proceed in this court with a monetary claim against the federal government, United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976), it “does not create any substantive right enforceable against the United States for money damages.” Id. at 398, 96 S.Ct. at 953. See also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); Security Bank & Trust Co. v. United States, 31 Fed.Cl. 589, 593 (1994). Monetary relief may only be granted if it is expressly authorized by a separate statute, a constitutional provision, a regulation or a contract. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (“entitlement to money damages depends on whether any federal statute ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained’ ” (citation omitted)). See also Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed.Cir.1994) (en banc); Appalachian Regional Healthcare, Inc. v. United States, 999 F.2d 1573, 1577 (Fed.Cir.1993); [46]*46Trayco, Inc. v. United States, 994 F.2d 832, 837 (Fed.Cir.1993); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert, denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984).

B

In order to defeat the motion to dismiss for lack of subject matter jurisdiction, plaintiff must demonstrate, pursuant to 28 U.S.C. § 1491(a)(1), that his claim rests either on a contract or on legislation. Plaintiff asserts no claim founded on contract. Consequently, to resolve the outstanding dispositive motion, we must determine whether plaintiffs claim is “founded upon” money-mandating legislation.

Plaintiff, proceeding pro se, states no particular theory of his case beyond asserting that Air Force personnel caused his loss and, by implication, that the government should reimburse. We address the case two ways: first, as an appeal seeking judicial review of final agency action, and second, as a claim unrelated to any prior agency action.

Ill

As noted above, the Air Force considered plaintiffs claim as one potentially payable under 10 U.S.C. § 2733.

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Bluebook (online)
37 Fed. Cl. 43, 1996 WL 684182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niedbala-v-united-states-uscfc-1996.