Case: 24-1143 Document: 13 Page: 1 Filed: 03/06/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JAMES W. TINDALL,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2024-1143
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:23-cv-00757-DAT, Judge David A. Tapp.
`______________________
`
`Decided: March 6, 2024
`______________________
`
`JAMES TINDALL, Marietta, GA, pro se.
`
`
` BRYAN MICHAEL BYRD, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for defendant-appellee. Also represented by
`BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA
`M. MCCARTHY.
`
`______________________
`
`Before REYNA, MAYER, and CUNNINGHAM, Circuit Judges.
`PER CURIAM.
`
`

`

`Case: 24-1143 Document: 13 Page: 2 Filed: 03/06/2024
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`2
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`TINDALL v. US
`
`James W. Tindall appeals pro se a decision of the
`United States Court of Federal Claims that dismissed his
`complaint for lack of jurisdiction and for failure to state a
`claim. We affirm.
`
`BACKGROUND
`Mr. Tindall owns 2,400 shares of stock in the Public
`Joint Stock Company Sberbank of Russia (“Sberbank”).
`S.Appx11.1 In 2021, President Biden signed Executive Or-
`der No. 14,024 (“EO 14024”). Fed. Reg. 20249 (Apr. 15,
`2021). The United States Office of Foreign Assets
`(“OFAC”), pursuant to EO 14024, issued sanctions prohib-
`iting any securities transactions involving specified Rus-
`sian financial institutions, including Sberbank. S.Appx21.
`On April 26, 2022, Charles Schwab & Co., Inc., Mr. Tin-
`dall’s brokerage firm, notified him of the impending actions
`on his shares of Sberbank and, on May 25, 2022, placed his
`shares into an OFAC-controlled escrow account. S.Appx34.
`During April and May of 2022, Mr. Tindall sent letters
`to various federal officials. See, e.g., S.Appx26–31. In these
`letters, Mr. Tindall offered to sell his shares and, alterna-
`tively, offered contract terms for use of his shares. Id. The
`letters also included requested deadlines for response. Id.
`The government did not respond. S.Appx50.
`On May 22, 2023, Mr. Tindall filed a complaint before
`the United States Court of Federal Claims (“CFC”).
`S.Appx11. Mr. Tindall alleged that the government had
`(1) violated his due process rights under the Fifth Amend-
`ment; (2) breached an alleged contract with Mr. Tindall for
`use of his shares; and (3) unconstitutionally taken his
`shares. S.Appx18–19. The government moved to dismiss
`for lack of jurisdiction and for failure to state a claim.
`S.Appx45.
`
`
`“S.Appx” refers to the supplemental appendix ac-
`1
`companying the government’s responding brief.
`
`

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`Case: 24-1143 Document: 13 Page: 3 Filed: 03/06/2024
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`TINDALL v. US
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`The CFC granted the government’s motion. S.Appx1.
`The CFC found a lack of jurisdiction over Mr. Tindall’s Due
`Process claim because “[the] Due Process Clause of the
`Fifth Amendment does not mandate payment of money.”
`S.Appx4. Regarding breach of contract, the CFC deter-
`mined Mr. Tindall had failed to state a claim because a con-
`tract was never formed. S.Appx5. The CFC also held Mr.
`Tindall failed to state a takings claim because he had not
`conceded the lawfulness of the government’s actions and,
`even if he had, the government’s actions were in the inter-
`est of national security and thus exempt from such allega-
`tions. S.Appx5–6. In support, the CFC relied on
`Paradissiotis v. United States, 304 F.3d 1271, 1275 (Fed.
`Cir. 2002), which explains that “freez[ing] assets” as a part
`of “valid regulatory measures taken to serve substantial
`national security interests” does not constitute a compen-
`sable taking. S.Appx6.
`Mr. Tindall appeals. This Court has jurisdiction under
`28 U.S.C. § 1295(a)(3).
`STANDARD OF REVIEW
`This court reviews de novo the CFC’s grant of a motion
`to dismiss for lack of jurisdiction. Inter-Tribal Council of
`Arizona Inc. v, United States, 956 F.3d 1328, 1338 (Fed.
`Cir. 2020). We also review de novo grants of motions to
`dismiss for failure to state a claim. Id. We accept all fac-
`tual allegations in the complaint as true and construe them
`in the light most favorable to the non-moving party. Id.
`DISCUSSION
`For the reasons discussed below, we affirm the CFC’s
`order dismissing Mr. Tindall’s due process claim for lack of
`jurisdiction, and his breach of contract and takings claims
`for failure to state a claim.
`We first address whether the CFC has jurisdiction over
`Mr. Tindall’s claim under the Due Process clause of the
`Fifth Amendment. The Tucker Act, 28 U.S.C. § 1491, pro-
`vides the CFC with jurisdiction over claims against the
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`TINDALL v. US
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`federal government for money damages, but it does not it-
`self create a substantive cause of action against the United
`States. United States v. Mitchell, 463 U.S. 206, 216−17
`(1983) (quoting United States v. Testan, 424 U.S. 392, 398
`(1976)). Instead, to come within the jurisdictional reach
`and waiver of sovereign immunity provided under the
`Tucker Act, “a plaintiff must identify a separate source of
`substantive law that creates the right to money damages.”
`Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525
`F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v. United
`States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc)).
`Here, Mr. Tindall claims money damages for alleged vi-
`olations of his due process rights under the Fifth Amend-
`ment. See Appellant Informal Br. 9. Mr. Tindall’s
`complaint identifies 28 U.S.C. § 1491(a)(1) as the basis for
`jurisdiction, but Mr. Tindall’s complaint fails to point to a
`separate source of substantive law that would create a
`cause of action against the government. S.Appx11–12. The
`Due Process clause of the Fifth Amendment does not man-
`date the payment of money and thus does not, by itself, sat-
`isfy the jurisdictional requirements of the CFC. See
`LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.
`1995). For these reasons, the CFC lacks jurisdiction over
`Mr. Tindall’s due process claim.
`We next look at Mr. Tindall’s breach of contract claim.
`The elements of a binding contract with the government
`are mutuality of intent between the parties, consideration,
`unambiguous offer and acceptance, and authority on the
`part of a government official to bind the United States. See
`Biltmore Forest Broad. FM, Inc. v. United States, 555 F.3d
`1375, 1380 (Fed. Cir. 2009). As to acceptance, an offeree
`must demonstrate acceptance in response to an offer. See
`RESTATEMENT (SECOND) OF CONTRACTS § 22(1). Here,
`Mr. Tindall argues that the government accepted his al-
`leged offer through certain “overt acts” including President
`Biden’s issuance of EO 14024, the OFAC sanctions result-
`ing in the transfer of his property to an escrow account, and
`the use of “[his] property as part of defendant’s economic
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`TINDALL v. US
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`war against Russia.” Appellant Informal Br. 13. But the
`government’s alleged acts predate Mr. Tindall’s letters. See
`Appellee Informal Br. 14. The government’s actions there-
`fore do not constitute acceptance of Mr. Tindall’s alleged
`offer. As a result, Mr. Tindall’s breach of contract claim
`fails.
`To the extent Mr. Tindall asserts that the government’s
`actions following his “offer letters” constitute the govern-
`ment’s acceptance, we disagree. At most, the government
`simply remained silent after Mr. Tindall sent his letters.
`Silence only operates as acceptance in limited circum-
`stances. See RESTATEMENT (SECOND) OF CONTRACTS § 69
`(1); see also Ibrahim v. United States, 799 F. App’x. 865,
`868 (Fed. Cir. 2020) (noting that “[c]ontract law does not
`permit one to send unsolicited letters to the govern-
`ment . . . declaring that failure to respond to the letter con-
`stitutes both formation and breach of a contract”). Mr.
`Tindall has not alleged that the government’s silence falls
`into one of these circumstances and thus has not suffi-
`ciently pleaded the government’s acceptance here. Without
`acceptance, there exists no contract, and without an exist-
`ing contract, there can be no breach. Mr. Tindall therefore
`fails to present a valid breach of contract claim.
`Finally, Mr. Tindall fails to state a takings claim. The
`Takings Clause of the Fifth Amendment provides “private
`property [shall not] be taken for public use, without just
`compensation.” U.S. Const. Amend. V. To establish CFC
`jurisdiction, the “claimant must concede the validity of the
`government action which is the basis of the taking claim.”
`Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802–03
`(Fed. Cir. 1993).
`Here, Mr. Tindall argues that the holding of his shares
`in an escrow account constitutes “an unconstitutional tak-
`ings violation.” Appellant Informal Br. 14. On appeal, Mr.
`Tindall asserts that the complaint and petition were refer-
`ring only to the government’s failure to pay as unlawful.
`Appellant Informal Br. 16–17. However, the record shows
`otherwise. Mr. Tindall’s complaint alleges that the
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`TINDALL v. US
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`government “illegally took” the shares through “unconsti-
`tutional conduct.” S.Appx14. Thus, we conclude that Mr.
`Tindall’s complaint does not “concede the validity of the
`government action” and, absent concession, fails to state a
`claim. Tabb Lakes, 10 F.3d at 802–03.
`Even assuming that Mr. Tindall implicitly concedes the
`lawfulness of the government’s actions, his takings claim
`still fails. Mr. Tindall asserts that Paradissiotis is inappli-
`cable and national security interests do not act as excep-
`tions to the Fifth Amendment. See Appellant Informal Br.
`24, 30. Mr. Tindall, however, does not provide any legal
`support for why Paradissiotis does not govern here. As we
`explained in that case, “valid regulatory measures taken to
`serve substantial national security interests . . . have not
`been recognized as compensable takings.” Paradissiotis,
`304 F.3d at 1275. “[This] principle disposes of any sugges-
`tion that the United States could freeze [foreign] assets in
`this country only of it were prepared to pay the cost of any
`losses resulting from the freeze.” Id. We see no error in
`the CFC’s reliance on this case as an additional reason for
`why Mr. Tindall’s takings claim fails at the 12(b)(6) stage.
`CONCLUSION
`We have considered Mr. Tindall’s remaining argu-
`ments and find them unpersuasive. For the foregoing rea-
`sons, Mr. Tindall has failed to carry his burden and failed
`to adequately state a claim. We affirm the CFC’s dismissal
`of Mr. Tindall’s complaint.
`AFFIRMED
`COSTS
`
`No costs.
`
`