`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ERIC DRAKE,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2018-2135, 2019-1572
`______________________
`
`Appeals from the United States Court of Federal
`Claims in Nos. 1:17-cv-00581-SGB, 1:18-cv-01806-NBF,
`Senior Judge Nancy B. Firestone, Senior Judge Susan G.
`Braden.
`
`______________________
`
`Decided: November 13, 2019
`______________________
`
`ERIC DRAKE, Dallas, TX, pro se.
`
`
` MILES KARSON, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for defendant-appellee. Also represented by
`JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
`EDWARD KIRSCHMAN, JR.
`______________________
`
`
`
`
`2
`
`DRAKE v. UNITED STATES
`
`Before PROST, Chief Judge, NEWMAN and BRYSON,
`Circuit Judges.
`
`PER CURIAM.
`Eric Drake appeals two decisions by the United States
`Court of Federal Claims dismissing two separate cases, pri-
`marily based on the same facts and the same causes of ac-
`tion. The first order dismissed Mr. Drake’s first complaint
`as untimely under 28 U.S.C. § 2501, and the second order
`dismissed Mr. Drake’s second complaint for lack of subject
`matter jurisdiction. See Drake v. United States, No. 17-
`581, 2018 WL 1613869 (Fed. Cl. Apr. 3, 2018) (“Drake I”);
`Vondrake v. United States, No. 18-1806, 141 Fed. Cl. 599
`(Fed. Cl. 2019) (“Drake II”).1 Because we conclude that the
`Court of Federal Claims lacks subject matter jurisdiction
`for both complaints, we affirm.
`I
`On May 30, 1990, Mr. Drake was arrested by the
`United States Secret Service after depositing in a Virginia
`bank eight thousand dollars that the bank suspected was
`illegally obtained. Following his arrest, Mr. Drake re-
`mained incarcerated until August 14, 1990, when he pled
`guilty to producing a false identification document under
`18 U.S.C. § 1028(a)(1).2 On October 17, 1990, the United
`
`1 The record includes several aliases for Plaintiff-Ap-
`pellant, including the names “Eric Drake” and “E.
`Vondrake” in the two underlying cases. See Drake I,
`No. 17-581, 2018 WL 1613869, *1 n.2 (noting that Mr.
`Drake’s aliases include “David Wayne Rogers,” “Eric von
`Drake,” “Eric von Rogers,” and “Mark Fuller”). For con-
`sistency, we will refer to the Plaintiff-Appellant as
`Mr. Drake.
`2 At the time of Mr. Drake’s plea, 18 U.S.C.
`§ 1028(a)(1) provided that “[w]hoever . . . knowingly and
`without
`lawful authority produces an
`identification
`
`
`
`DRAKE v. UNITED STATES
`
`3
`
`States District Court for the Eastern District of Virginia
`convicted Mr. Drake, imposing a fine and sentencing Mr.
`Drake to one hundred and forty-one days, which was time
`he had already served, and twenty-four months supervised
`release.
`The case now before this court is a consolidated appeal
`from two separate cases filed by Mr. Drake in the Court of
`Federal Claims related to his 1990 conviction. Mr. Drake
`filed his first complaint at the Court of Federal Claims on
`April 27, 2017, and he amended that complaint on Novem-
`ber 15, 2017. Mr. Drake alleged constitutional and civil
`rights violations based on what he argued was an unjust
`conviction. See S.A. 7–353; Appellant’s Br. 7. Mr. Drake
`also alleged breach of contract for the constitutional viola-
`tions based on “an implied and bilateral contract with the
`government of the United States” through the U.S. Consti-
`tution and Bill of Rights. S.A. 11. Finally, Mr. Drake as-
`serted tort claims against the government based on
`intentional infliction of emotional distress and mental an-
`guish. S.A. 35. The Government moved to dismiss Mr.
`Drake’s complaint for lack of jurisdiction, including on the
`ground that it was untimely filed after the six-year statute
`of limitations provided by 28 U.S.C. § 2501. Mr. Drake op-
`posed, arguing that the statute of limitations should be eq-
`uitably tolled. On April 3, 2018, the Court of Federal
`Claims dismissed the complaint because it was filed after
`the statute of limitations had expired and was therefore
`untimely under 28 U.S.C. § 2501. Drake I, 2018 WL
`1613869, at *6. Mr. Drake requested reconsideration,
`
`
`document or a false identification document . . . or at-
`tempts to do so, shall be punished[.]” 18 U.S.C. § 1028(a)(1)
`(1990).
`3 Citations to the record are to the Supplemental Ap-
`pendix (“S.A.”), filed by the U.S. Department of Justice.
`
`
`
`4
`
`DRAKE v. UNITED STATES
`
`which the Court of Federal Claims denied. Mr. Drake ap-
`pealed.
`On November 16, 2018, Mr. Drake filed a second com-
`plaint primarily asserting the same causes of action based
`on the same facts. S.A. 53–81. In the second case,
`Mr. Drake additionally alleged that his suit was timely
`filed under 28 U.S.C. § 2501 because he qualified for an ex-
`ception to that statute, which extends the statutory dead-
`line for “a person under legal disability.” See S.A. 53. On
`January 22, 2019, the Court of Federal Claims dismissed
`the case sua sponte based on its finding that it lacked sub-
`ject matter jurisdiction over any claim asserted. See
`Drake II, 141 Fed. Cl. at 600–02. For the purposes of its
`order, the Court of Federal Claims assumed that Mr.
`Drake’s allegation of legal disability was sufficient to sat-
`isfy the exception in § 2501. Id. at 601. Again, Mr. Drake
`appealed.
`On April 18, 2019, this court consolidated Mr. Drake’s
`two appeals. We have jurisdiction pursuant to 28 U.S.C.
`§ 1295(a)(3).
`
`II
`We review the Court of Federal Claims’s determination
`of its subject matter jurisdiction de novo. See Abbas v.
`United States, 842 F.3d 1371, 1375 (Fed. Cir. 2016);
`Holmes v. United States, 657 F.3d 1303, 1309 (Fed. Cir.
`2011).
`The Tucker Act is the primary statute conferring juris-
`diction on the Court of Federal Claims. 28 U.S.C.
`§ 1491(a)(1); see also Taylor v. United States, 303 F.3d
`1357, 1359–60 (Fed. Cir. 2002). It provides that the Court
`of Federal Claims shall have jurisdiction for “any claim
`against the United States founded either upon the Consti-
`tution, or any Act of Congress, or any regulation of an ex-
`ecutive department, or upon any express or implied
`contract with the United States, or for liquidated or
`
`
`
`DRAKE v. UNITED STATES
`
`5
`
`unliquidated damages in cases not sounding in tort.”
`28 U.S.C. § 1491(a)(1). To be cognizable, a claim under the
`Tucker Act must be for money damages against the United
`States. United States v. Testan, 424 U.S. 392, 397–98
`(1976); Smith v. United States, 709 F.3d 1114, 1115–16
`(Fed. Cir. 2013). Because the Tucker Act itself “does not
`create any substantive right enforceable against the
`United States for money damages,” to demonstrate juris-
`diction, a plaintiff must identify a separate contract, regu-
`lation, statute, or constitutional provision granting such a
`substantive right. Testan, 424 U.S. at 398; see also Ferreiro
`v. United States, 501 F.3d 1349, 1351–52 (Fed. Cir. 2007);
`Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
`2005).
`In the two complaints central to this appeal, Mr. Drake
`asserts a number of different claims against the United
`States. First, Mr. Drake argues that his 1990 arrest, im-
`prisonment, and conviction constitute unjust conviction.
`He argues that the United States engaged in unlawful dis-
`crimination on the basis of his race and that such discrim-
`ination included unlawful arrest and torture, which led to
`a false guilty plea and his conviction.4 As support for a
`
`
`4 Mr. Drake alleges that he was wrongfully convicted
`in 1990 and asserts that his innocence is established by a
`pardon granted to him by the Governor of Louisiana. See
`S.A. 52. Notwithstanding the fact that a state governor’s
`pardon does not establish that Mr. Drake was unjustly con-
`victed of a federal crime, see 28 U.S.C. § 2513(b); Freeman
`v. United States, 568 F. App’x 892, 894 (Fed. Cir. 2014), to
`the extent that Mr. Drake requests that the Court of Fed-
`eral Claims review his federal criminal conviction, the
`Court of Federal Claims does not have jurisdiction to re-
`view criminal convictions or decisions by a federal district
`court, Joshua v. United States, 17 F.3d 378, 379–80
`(Fed. Cir. 1994).
`
`
`
`6
`
`DRAKE v. UNITED STATES
`
`substantive right, Mr. Drake relies on the Fourth, Fifth,
`and Fourteenth Amendments, the Privileges and Immuni-
`ties Clause of Article IV, Section 2 of the U.S. Constitution,
`and 42 U.S.C. §§ 1981, 1983, and 1988. The Court of Fed-
`eral Claims does not have jurisdiction to render judgment
`on claims arising under the Due Process Clause of the
`Fourth Amendment, Brown v. United States, 105 F.3d 621,
`623–24 (Fed. Cir. 1997),5 the Due Process Clause of the
`Fifth Amendment, Smith v. United States, 709 F.3d 1114,
`1116 (Fed. Cir. 2013), the Privileges and Immunities
`Clause of Article IV, Section 2, Ivaldy v. United States, 655
`F. App’x 813, 815 (Fed. Cir. 2016), or the Equal Protection
`and Due Process Clauses of the Fourteenth Amendment,
`Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.
`2013).6 The Court of Federal Claims likewise does not have
`jurisdiction to entertain federal civil rights violations be-
`cause the protections afforded by 42 U.S.C. §§ 1981, 1983,
`and 1988 create liability only when injury occurs under
`state law. See 42 U.S.C. §§ 1981, 1983, 1988; see also Wil-
`son v. United States, 566 F. App’x 913, 915 (Fed. Cir. 2014);
`
`
`5 To the extent that Mr. Drake alleges constitutional
`violations against federal agents in their personal capacity,
`the Court of Federal Claims does not have jurisdiction over
`actions against individual federal agents. Brown, 105 F.3d
`at 624.
`6 On appeal, Mr. Drake argues that his second com-
`plaint alleged constitutional violations under the Seventh
`Amendment. Appellant’s Br. 7. Neither of Mr. Drake’s
`complaints before the Court of Federal Claims included an
`allegation of a Seventh Amendment violation. See S.A. 7–
`35, 53–81. But even if they had, the Seventh Amendment
`is not money-mandating and, like Mr. Drake’s other
`claims, does not confer jurisdiction on the Court of Federal
`Claims. See United States v. Sherwood, 312 U.S. 584, 587
`(1941); Fisher, 402 F.3d at 1174.
`
`
`
`DRAKE v. UNITED STATES
`
`7
`
`Maxberry v. United States, 722 F. App’x 997, 1001 (Fed.
`Cir. 2018).
`Mr. Drake also asserts that the United States violated
`his Sixth Amendment rights by manufacturing evidence
`against him and failing to provide him with his Miranda
`rights. See generally Miranda v. Arizona, 384 U.S. 436
`(1966). The Court of Federal Claims, however, does not
`have jurisdiction to render judgment on claims against the
`United States based on the Sixth Amendment because it is
`not money mandating. Maxberry, 722 F. App’x at 1000;
`Milas v. United States, 42 Fed. Cl. 704, 710 (Fed. Cl. 1999),
`aff’d 217 F.3d 854 (Fed. Cir. 1999).
`Mr. Drake further asserts that during his imprison-
`ment, the Government improperly denied him bail in vio-
`lation of the Eighth Amendment. The Court of Federal
`Claims also does not have jurisdiction to render judgment
`on violations of the Eighth Amendment because it is not
`money mandating. Trafny v. United States, 503 F.3d 1339,
`1340 (Fed. Cir. 2007).
`Next, Mr. Drake argues that these alleged constitu-
`tional violations are a breach of his “implied and bilateral
`contract with the government of the United States”
`through the U.S. Constitution and Bill of Rights. The
`Court of Federal Claims does not have jurisdiction to con-
`sider contracts implied in law. Hercules Inc. v. United
`States, 516 U.S. 417, 423–24 (1996); Trauma Serv. Grp. v.
`United States, 104 F.3d 1321, 1324–25 (Fed. Cir. 1997).
`Thus, even if there were a legal basis for Mr. Drake’s reli-
`ance on the U.S. Constitution as an implied contract, the
`Court of Federal Claims would nonetheless lack jurisdic-
`tion over his claim.
`Finally, Mr. Drake alleges that the Government’s ac-
`tions related to his 1990 conviction intentionally inflicted
`emotional distress and mental anguish. These allegations
`are tort claims over which the Tucker Act expressly prohib-
`its jurisdiction by the Court of Federal Claims. 28 U.S.C.
`
`
`
`8
`
`DRAKE v. UNITED STATES
`
`§ 1491(a)(1); see also Keene Corp. v. United States, 508 U.S.
`200, 214 (1993). To the extent Mr. Drake’s claims are
`based on alleged torture likewise the Court of Federal
`Claims does not have jurisdiction. Sheldon v. United
`States, 742 F. App’x 496, 501 (Fed. Cir. 2018).7
`On appeal, Mr. Drake’s arguments relate to whether
`his complaints were timely filed under 28 U.S.C. § 2501.
`Because the Court of Federal Claims does not have juris-
`diction with respect to any of Mr. Drake’s claims regardless
`of whether they were timely filed, we do not reach
`Mr. Drake’s arguments related to § 2501. 8 We therefore
`affirm the Court of Federal Claims’s dismissal in each of
`the cases below.
`
`AFFIRMED
`COSTS
`The parties shall bear their own costs.
`
`
`7 We do not hold that the Court of Federal Claims
`has no authority to consider constitutional arguments in
`claims where the court’s jurisdiction is established by stat-
`ute; for example, in Tucker Act claims in which a constitu-
`tional argument such as a due process argument is
`presented with respect to the merits of the claim. We hold
`only that the Court of Federal Claims did not have juris-
`diction over the constitutional violations in this case.
`8 Because we find that the Court of Federal Claims
`lacked jurisdiction for each claim asserted by Mr. Drake,
`we also deny Mr. Drake’s pending motion to supplement
`the joint appendix. See Drake I, No. 18-2135, ECF No. 15
`(Fed. Cir. June 10, 2019).
`
`