NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-5047
KEITH RUSSELL JUDD,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: June 28, 2006
__________________________
Before NEWMAN, LINN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN. Circuit Judge NEWMAN dissents.
LINN, Circuit Judge.
Keith Russell Judd appeals a final decision of the United States Court of Federal
Claims, Judd v. United States, No. 05-CV-726 (Fed. Cl. Dec. 8, 2005) (Order),
dismissing Judd’s claim to enforce a Pretrial Diversion Agreement for lack of subject
matter jurisdiction. Because the Pretrial Diversion Agreement is not a contract within
the scope of the Tucker Act, we affirm the Court of Federal Claims’ dismissal for lack of
subject matter jurisdiction.
BACKGROUND
Judd entered into a Pretrial Diversion Agreement (“the Diversion Agreement”)
with the United States government through the office of the United States Attorney for
the Western District of Texas in April 1996. The Diversion Agreement provided that
Judd would not be prosecuted for an identified crime if he fulfilled certain conditions.
Judd’s complaint before the Court of Federal Claims requested enforcement of the
Diversion Agreement, alleging that it was a contract that the government had breached.
In response to a motion to dismiss, Judd added a claim for money damages for the
alleged breach based on funds that were seized as a result of his conviction. The Court
of Federal Claims concluded that the Diversion Agreement was not a “contract “ within
the scope of the Tucker Act, 28 U.S.C. § 1491(a)(1), and dismissed the claim for lack of
subject matter jurisdiction. Order, slip op. at 4. We have jurisdiction over this appeal
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
The Court of Federal Claims’ dismissal of a case for lack of subject matter
jurisdiction is a legal determination that we review de novo. Frazer v. United States,
288 F.3d 1347, 1351 (Fed. Cir. 2002). The issue on appeal is whether the Diversion
Agreement is a contract according to the Tucker Act. We conclude that it is not.
The Tucker Act, in relevant part, grants the Court of Federal Claims jurisdiction
“to render judgment upon any claim against the United States founded . . . upon any
express or implied contract with the United States . . . .” 28 U.S.C. § 1491(a)(1) (2000).
However, the Tucker Act does not cover every agreement with the federal government.
The contract liability which is enforceable under the Tucker Act consent to
suit does not extend to every agreement, understanding, or compact
which can semantically be stated in terms of offer and acceptance or
meeting of the minds. The Congress undoubtedly had in mind as the
principal class of contract cases in which it consented to be sued, the
instances where the sovereign steps off the throne and engages in
purchase and sale of goods, lands, and services, transactions such as
06-5047 2
private parties, individuals or corporations also engage in among
themselves.
Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981). In Kania, the Court of Claims
acknowledged that a plea agreement, immunity agreement, or witness protection
agreement might create Tucker Act jurisdiction, “[b]ut, in such case, the court would
look for specific authority in the [Assistant United States Attorney] to make an
agreement obligating the United States to pay money, and spelling out how in such a
case the liability of the United States is to be determined.” Id. In Sanders v. United
States, we interpreted that statement to mean that, for parties in a criminal case, “a
claim for money damages for the alleged breach of such an agreement may not be
maintained unless that agreement clearly and unmistakably subjects the government to
monetary liability for any breach.” 252 F.3d 1329, 1334-35 (Fed. Cir. 2001) (emphasis
added).
Like the immunity agreement in Kania or the stipulated bail agreement in
Sanders, the Diversion Agreement in this case is entirely concerned with the conduct of
parties to a criminal case and contains no express terms providing for money damages.
The money damages Judd does allege were not specifically provided for in the
Diversion Agreement. The Diversion Agreement therefore is not a contract within the
scope of the Tucker Act, and the Court of Federal Claims lacks subject matter
jurisdiction. The Court of Federal Claims’ decision dismissing this case is affirmed.
NEWMAN, Circuit Judge, dissents.
06-5047 3