NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PHU MANG PHANG,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-5118
__________________________
Appeal from the United States Court of Federal
Claims in 08-CV-647, Chief Judge Emily C. Hewitt.
____________________________
Decided: July 13, 2010
____________________________
PHU MANG PHANG, of San Gabriel, California, pro se.
CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. On the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARK A.
MELNICK, Assistant Director.
__________________________
PHANG v. US 2
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
Phu Mang Phang (“Phang”) appeals from the decision
of the United States Court of Federal Claims (“the Claims
Court”) dismissing his complaint for lack of subject mat-
ter jurisdiction. We affirm.
BACKGROUND
Phang was arrested on August 26, 2005, during an
undercover drug operation by the Drug Enforcement
Administration (“DEA”). On September 9, 2005, Phang
was indicted on three counts: Count one charged conspir-
acy to possess with the intent to distribute and conspiracy
to distribute cocaine under 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846; count two charged attempt to
possess with intent to distribute cocaine under 21 U.S.C.
§ 841(a)(1) and (b)(1)(A); and count three subjected
Phang’s property used to facilitate the commission of the
charged offenses or derived from the offenses to criminal
forfeiture under 21 U.S.C. § 853. According to Phang,
DEA agents seized over $2 million worth of his property
in conjunction with his arrest, including over $1.5 million
in United States currency.
On August 11, 2006, Phang entered into a plea
agreement with the United States Attorney’s Office for
the Central District of California (“USAO”). Pursuant to
that agreement, on August 15, 2006, Phang pled guilty to
the first count of the indictment, and the USAO dismissed
the remaining counts, including the criminal forfeiture
charge, on June 25, 2007. According to Phang, the
USAO’s dismissal of the forfeiture charge obligated the
government to return his seized property, which he claims
the government never did.
3 PHANG v. US
On September 12, 2008, Phang filed a complaint
against the United States at the Claims Court, alleging
fraud, fraud in the inducement, and breach of contract.
Specifically, Phang alleged that the USAO fraudulently
induced him to enter into the plea agreement by promis-
ing to return his property and then breached the agree-
ment by failing to return the property upon dismissal of
the forfeiture charge. Phang sought return of his prop-
erty or, in the alternative, over $2 million in damages.
On June 12, 2009, the Claims Court dismissed
Phang’s complaint for lack of subject matter jurisdiction.
Phang v. United States, 87 Fed. Cl. 321, 325 (2009). The
court first held that it did not have jurisdiction to hear
Phang’s claims for fraud and fraud in the inducement
because its jurisdictional statute, the Tucker Act, specifi-
cally excludes all claims sounding in tort and Awad v.
United States, 301 F.3d 1367 (Fed. Cir. 2002), cited by
Phang, extends the Claims Court’s jurisdiction only to
tort claims that lack a basis independent from an alleged
contract with the government. Id. at 326. The Claims
Court next held that it lacked jurisdiction over Phang’s
wrongful forfeiture claim under 28 U.S.C. § 2465 regard-
less whether the forfeiture was an in rem forfeiture under
21 U.S.C. § 881 or a criminal in personam forfeiture
under 21 U.S.C. § 853, noting also that because § 2465
provides only for the return of property, it is not a money-
mandating statute as required for Tucker Act jurisdiction.
Id. at 326-28. Finally, the court held that it lacked juris-
diction over Phang’s contract claim because the plea
agreement failed to clearly and unmistakably subject the
government to monetary liability for a breach as required
by Kania v. United States, 650 F.2d 264 (Ct. Cl. 1981) and
Sanders v. United States, 252 F.3d 1329 (Fed. Cir. 2001).
Id. at 328-29.
PHANG v. US 4
Phang timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review a decision of the Claims Court to dismiss a
complaint for lack of jurisdiction de novo. Shearin v.
United States, 992 F.2d 1195, 1195 (Fed. Cir. 1993). As
the party seeking the exercise of jurisdiction, Phang bears
the burden of establishing that jurisdiction exists. Ro-
covich v. United States, 933 F.2d 991, 993 (Fed. Cir.
1991). Phang advances three arguments on appeal as to
why the Claims Court has jurisdiction over his claims.
We address each in turn.
Phang first argues that the Claims Court has jurisdic-
tion over his claims for fraud and fraud in the inducement
because these tort claims stem from his breach of contract
claim, again citing Awad, 301 F.3d 1367. The government
responds that Phang’s fraud claims are expressly ex-
cluded by the Tucker Act and that Awad, 301 F.3d 1367,
recognizes the Claims Court’s jurisdiction only over
nominal tort claims that in substance sound in contract,
not over independent tort claims like Phang’s.
We agree with the government. The Tucker Act ex-
pressly excludes from the Claims Court’s jurisdiction tort
claims against the government. It states that the “United
States Court of Federal Claims shall have jurisdiction to
render judgment upon any claim against the United
States founded either 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) (emphasis added). In contrast, the Federal
Tort Claims Act grants district courts exclusive jurisdic-
5 PHANG v. US
tion to hear tort claims against the United States. Id.
§ 1346(b)(1).
Our decision in Awad does not compel a different re-
sult. Awad merely recognized the well-established rule
that “where a tort claim stems from a breach of contract,
the cause of action is ultimately one arising in contract,
and thus is properly within the exclusive jurisdiction of
the Court of Federal Claims.” 301 F.3d at 1372. Accord-
ingly, we held that the Claims Court had jurisdiction over
Awad’s false imprisonment, intentional infliction of
emotional distress, and negligence claims as those claims
all arose from an alleged breach of the government’s
contractual obligations to provide Awad with U.S. citizen-
ship and a passport. Id. at 1372-74. Here, in contrast,
Phang’s fraud claims are separate from and independent
of the government’s obligations under the plea agreement;
the government’s duty not to knowingly make misrepre-
sentations to induce Phang to sign the plea agreement did
not arise from the government’s obligations under the
agreement but from tort law. Thus, the Claims Court
correctly held that it lacked jurisdiction over Phang’s tort
claims.
Phang next argues that the Claims Court has juris-
diction over a wrongful forfeiture claim under 28 U.S.C.
§ 2465 because § 2465 is a money-mandating statute.
According to Phang, § 2465 mandates the payment of
money damages by requiring the return of property and
the payment of interest and attorneys’ fees. The govern-
ment responds that, rather than being money mandating,
§ 2465 is derivative in its application, requiring the
return of property only upon a favorable finding in a
forfeiture proceeding. But regardless, the government
argues, because Phang fails to contest the alternative
PHANG v. US 6
grounds on which the Claims Court held that it lacked
jurisdiction under § 2465, Phang’s argument is moot.
Again we agree with the government. Section 2465
requires that “[u]pon the entry of a judgment for the
claimant in any proceeding to condemn or forfeit property
seized or arrested under any provision of Federal law – (1)
such property shall be returned forthwith to the claim-
ant.” 28 U.S.C. § 2465(a)(1). It also makes the govern-
ment liable for reasonable attorneys’ fees and post-
judgment interest. Id. § 2465(b). Thus, on its face, the
statute provides only for the return of forfeited property
along with certain costs incurred in seeking that return,
and thus cannot properly be interpreted as mandating
monetary compensation by the government as a result of
the seizure. See United States v. One 1979 Cadillac
Coupe De Ville, 833 F.2d 994, 999 (Fed. Cir. 1987) (hold-
ing no jurisdiction under the little Tucker Act and § 2465
to award monetary damages for the depreciation of prop-
erty seized). But regardless whether or not § 2465 is a
money-mandating statute, Phang has failed to challenge
on appeal the Claims Court’s additional grounds for
holding it lacked jurisdiction over an in rem or criminal in
personam forfeiture claim. As such, we affirm the Claims
Court’s decision that the court lacked jurisdiction under
§ 2465.
Finally, Phang argues that the Claims Court has ju-
risdiction over his breach of contract claim under Kania,
650 F.2d 264, and Sanders, 252 F.3d 1329, because the
USAO had the authority to enter into the plea agreement,
and either that agreement or § 2465 clearly and expressly
requires the government to pay money under the agree-
ment. In response, the government asserts that the
Claims Court lacks jurisdiction over Phang’s breach of
contract claim under Sanders, 252 F.3d 1329, because the
7 PHANG v. US
plea agreement is not only silent with respect to the
release of Phang’s property but also does not purport to
require the United States to pay money under any cir-
cumstances.
We again agree with the government. This court in
Sanders held that the government’s alleged breach of an
agreement with a criminal defendant is cognizable in the
Court of Federal Claims only if the agreement “clearly
and unmistakably subjects the United States to monetary
liability for any breach.” 252 F.3d at 1331; see also id. at
1335 (citing Kania, 650 F.2d at 268). Such liability can-
not be implied, but “require[s] the same kind of express
language . . . required by the unmistakability doctrine
concerning government liability for the exercise of sover-
eign power.” Id. at 1336. That standard is not met here
as neither § 2465 nor the plea agreement itself contains
express language subjecting the government to monetary
liability for a breach. Section 2465 relates only to the
return of property, not to monetary liability. Similarly,
the plea agreement states only that the USAO will dis-
miss the remaining counts of the indictment against
Phang; it is silent with respect to the release of Phang’s
property and nowhere subjects the United States to
monetary liability. Accordingly, we affirm the decision of
the Claims Court that it lacked jurisdiction over Phang’s
breach of contract claim.
For the foregoing reasons, we affirm the decision of
the Claims Court dismissing Phang’s complaint for lack of
subject matter jurisdiction.
COSTS
No costs.