NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5079
KHURRAM AFZAL,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
Khurram Afzal, of Fullerton, California, pro se.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Eric G. Bruggink
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5079
KHURRAM AFZAL,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 08-CV-869, Senior Judge Eric
G. Bruggink.
__________________________
DECIDED: October 7, 2009
__________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
PER CURIAM.
Khurram Afzal (“Afzal”) appeals a final decision of the United States Court of
Federal Claims dismissing his action for lack of jurisdiction. Because we agree that
Afzal’s claims fall outside the jurisdiction of the Court of Federal Claims, we affirm.
On December 5, 2008, Afzal filed a complaint against the San Gabriel Valley
Small Business Development Center (“San Gabriel Valley-SBDC”) and the United
States in the Court of Federal Claims, claiming $300 million in damages because the
San Gabriel Valley-SBDC refused to finance his proposed computer modem business.
The complaint asserts subject matter jurisdiction under the Tucker Act, 28 U.S.C.
§ 1491 (2006).
In the action before the Court of Federal Claims, Afzal served a subpoena on the
United States on January 9, 2009. The subpoena requested a copy of a contract
between the Small Business Administration and the San Gabriel Valley-SBDC. Afzal
claims that this contract provides evidence that the San Gabriel Valley-SBDC finances
small businesses. The United States moved to quash the subpoena, and the court
granted the motion on January 16, 2009. Afzal served the subpoena on the United
States a second time. Afzal claims that the court also quashed this subpoena, while the
United States contends that the subpoena was not quashed but rather rendered
unenforceable when the court dismissed Afzal’s action.
On February 3, 2009, the United States moved to dismiss the suit. The United
States attached a copy of the contract between the Small Business Administration and
the San Gabriel Valley-SBDC to its motion to dismiss. The Court of Federal Claims
granted the United States’ motion on March 17, 2009. The court found that the Tucker
Act did not confer subject matter jurisdiction because the only statute cited by Afzal, 15
U.S.C. § 648 (2006), did not mandate compensation.
Afzal filed a timely appeal with this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
We understand Afzal to raise three issues on appeal. First, he argues that the
Court of Federal Claims misinterpreted 15 U.S.C. § 648. Second, he contends that the
court improperly quashed his subpoenas. Finally, he alleges that the United States has
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discriminated against him because of his national origin. We address each allegation in
turn.
The Tucker Act grants the Court of Federal Claims jurisdiction over certain
actions against the United States and waives the United States’ sovereign immunity for
those actions. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). The Act
applies to claims for money damages 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, or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491. It does not,
however, create a substantive cause of action. Fisher, 402 F.3d at 1172. Thus, Afzal
must identify a money-mandating source of law, i.e., “a separate source of substantive
law that creates the right to money damages.” Id.
Afzal seems to argue that 15 U.S.C. § 648 compels the San Gabriel Valley-
SBDC to finance his proposed small businesses. This argument reflects a
misunderstanding of § 648. The statute permits the Small Business Administration to
make grants for establishing small business development centers, not small
businesses:
The Administration is authorized to make grants (including
contracts and cooperative agreements) to any State
government or any agency thereof, any regional entity, any
State-chartered development, credit or finance corporation,
any women’s business center operating pursuant to section
656 of this title, any public or private institution of higher
education, including but not limited to any land-grant college
or university, any college or school of business, engineering,
commerce, or agriculture, community college or junior
college, or to any entity formed by two or more of the above
entities (herein referred to as “applicants”) to assist in
establishing small business development centers . . . .
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15 U.S.C. § 648(a)(1) (emphases added). The statute is simply inapplicable here.
Afzal does not contend that his proposed business is a small business development
center, and nothing in the statute allows a small business development center to fund a
small business. In fact, the regulations that implement § 648 explicitly prohibit small
business development centers from loaning money: “SBDCs may not make loans,
service loans or make credit decisions regarding the award of loans.” 13 C.F.R. §
130.340(b)(4) (2009).
Even if § 648 were applicable, we cannot conclude that it mandates
compensation. The statute merely authorizes the Small Business Administration to fund
small business development centers. Had Congress intended § 648 to compel the
Small Business Administration to finance small business development centers, it might
have replaced the word “authorized” with a word that clearly compelled the Small
Business Administration to act, for example, “shall” or “must.” But it did not. Thus, we
agree with the Court of Federal Claims that 15 U.S.C. § 648 is not a money-mandating
provision of law and that the Court of Federal Claims did not have jurisdiction to hear
Afzal’s claims under 15 U.S.C. § 648.
Afzal also contends that the Court of Federal Claims improperly quashed his
subpoenas. We disagree. Rule 26 of the Rules of the United States Court of Federal
Claims (“RCFC”) states that, subject to exceptions inapplicable here, “[a] party may not
seek discovery from any source before the parties have conferred as required by
Appendix A ¶ 3.” RCFC 26(d)(1) (2009). In turn, Appendix A, paragraph 3 requires the
parties’ counsel to confer “[s]ubsequent to the filing of defendant’s answer.” Id.
Appendix A ¶ 3. No answer was filed here, thus any subpoenas filed by Afzal were
2009-5079 4
premature and therefore properly quashed by the court. Moreover, the United States
provided Azfal the discovery he sought by attaching to its motion to dismiss a copy of
the contract between the Small Business Administration and the San Gabriel Valley-
SBDC. Therefore, we find no abuse of discretion in the Court of Federal Claims’ actions
in quashing Afzal’s subpoenas.
Finally, Afzal argues that the United States discriminated against him based on
his national origin. In response, the United States contends that Afzal waived this
argument because he failed to raise it below and because the Court of Federal Claims
does not have jurisdiction over discrimination claims. We need not address the issue of
waiver, as we agree that the Court of Federal Claims does not have jurisdiction over
such claims, see 28 U.S.C. § 1343(a) (conferring district courts with original jurisdiction
over civil rights disputes); J & L Janitorial Servs., Inc. v. United States, 231 Ct. Cl. 837,
838 (Ct. Cl. 1982) (finding that racial discrimination claims must be brought in district
court).
For the foregoing reasons, the Court of Federal Claims was correct in concluding
that it lacked subject matter jurisdiction to entertain Afzal’s claims and properly quashed
Afzal’s subpoenas. Accordingly, we affirm.
COSTS
No costs.
2009-5079 5