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
05-1605
John E. McCormac, TREASURER OF THE STATE OF NEW JERSEY and
Richard H. Moore, Jr., TREASURER OF THE STATE OF NORTH CAROLINA,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF THE TREASURY,
John W. Snow, SECRETARY OF THE TREASURY,
BUREAU OF PUBLIC DEBT, and
Van Zeck, COMMISSIONER OF THE BUREAU OF PUBLIC DEBT,
Defendants-Appellees.
__________________________
DECIDED: June 15, 2006
__________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.
CLEVENGER, Senior Circuit Judge.
Plaintiffs-Appellants John E. McCormac, Treasurer of the State of New Jersey,
and Richard H. Moore, Treasurer of the State of North Carolina (collectively, the States)
appeal the decision of the United States District Court for the District of New Jersey,
transferring this case to the United States Court of Federal Claims. McCormac v.
United States Dep't of Treasury, No. 04-4368 (D.N.J. July 29, 2005) (Transfer Decision).
Because we hold that the Court of Federal Claims does not have jurisdiction over this
case, we reverse and remand to the district court for further proceedings.
I
The States filed suit against Defendants-Appellees, the United States
Department of the Treasury, the Secretary of the Treasury, the Bureau of Public Debt,
and the Commissioner of the Bureau of Public Debt (collectively, the Government),
invoking the Administrative Procedure Act (APA), 5 U.S.C. § 702, which permits judicial
review of agency action in actions "seeking relief other than money damages." The
States allege that, under state custodial escheat statutes, specifically the New Jersey
Uniform Unclaimed Property Act, N.J. Stat. Ann. § 46:30B-1 et seq. and the North
Carolina Escheat and Unclaimed Property Act, N.C. Gen. Stat. § 116B-1 et seq.
(collectively, the State Acts), they are entitled to acquire and maintain custody of
unclaimed property on behalf of the rightful owners of that property. Thus, the States
seek custody of matured but unclaimed United States savings bonds in the possession
of the Treasury Department.
The Government moved to dismiss the amended complaint pursuant to Fed. R.
Civ. P. 12(b)(1) or, alternatively, to transfer the action to the Court of Federal Claims
pursuant to 28 U.S.C. § 1631. The district court denied the motion to dismiss and
granted the motion to transfer, finding that the States' claims are "based on contracts,"
i.e., the savings bonds, such that the Tucker Act, as opposed to the APA, provides the
appropriate source of subject matter jurisdiction. The States timely appealed that
decision to this court, and we have jurisdiction to review the district court's interlocutory
order pursuant to 28 U.S.C. § 1292(d)(4)(A).
05-1605 2
II
We review questions concerning jurisdiction and transfer to the Court of Federal
Claims de novo. United States v. County of Cook, 170 F.3d 1084, 1087 (Fed. Cir.
1999).
In its brief to this court, the Government concedes that it erred in requesting a
transfer to the Court of Federal Claims, as this case is not within that court's limited
jurisdiction. The States agree and request that we reverse the transfer order and
remand to the district court for further proceedings.
Indeed, both parties are correct that the transfer to the Court of Federal Claims
was improper. A case may be transferred to a "court in which the action or appeal could
have been brought." 28 U.S.C. § 1631 (2000). In order for the Court of Federal Claims
to have jurisdiction over this case, it must lie within the express jurisdictional mandate of
the Tucker Act, which grants the Court of Federal Claims jurisdiction over "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, or for liquidated or unliquidated damages in cases not sounding
in tort." 28 U.S.C. § 1491(a)(1) (2000). However, the Tucker Act does not create any
substantive right for monetary damages. United States v. Mitchell, 445 U.S. 535, 538
(1980). Rather, a plaintiff must plead an independent contractual relationship,
constitutional provision, federal statute, or executive agency regulation that provides a
substantive right to money damages. See Cyprus Amax Coal Co. v. United States,
205 F.3d 1369, 1373 (Fed. Cir. 2000) (citing Mitchell, 463 U.S. at 216; United States v.
Testan, 424 U.S. 392, 400 (1976)).
05-1605 3
The States do not assert a contractual relationship, constitutional provision,
federal statute, or executive agency regulation that provides a substantive right to
money damages. Rather, the district court found that the Court of Federal Claims had
jurisdiction because "[t]he bonds are contracts between the United States and the bond
owners." Transfer Decision, slip op. at 4 (citing Rotman v. United States, 31 Fed. Cl.
724, 725 (1994) ("A U.S. Savings Bond is a contract between the United States and the
person to whom it is registered.")). The court determined that the States are seeking to
be paid the proceeds of the savings bonds, that such payment is at odds with the
federal regulations governing the bonds, and that, as a result, the States were seeking
to challenge the terms of the bonds. Thus, the court found that "the States' complaint
does assert a claim upon a contract with the United States" such that jurisdiction lies
within the Court of Federal Claims. Id. at 4-5.
However, although the States are asserting a claim that involves a contract, they
are not asserting a contract claim for money damages against the government. The
bonds create a contractual relationship between the bond owners and the Government,
but do not create a contractual relationship between the States and the Government.
The States are not named parties to the bond contract, such that there is no privity
between the States and the Government. Further, the States neither assert that they
currently have title to the bonds, nor seek transfer of title to the bonds. Rather, they
seek custody rights originating in their escheat statutes, such that they seek to "act[] as
a conservator, not as a party to a contract." Conn. Mutual Life Ins. Co. v. Moore,
333 U.S. 541, 547 (1948).
05-1605 4
Finally, neither party has cited any other contract creating a contractual
relationship between the States and the Government, nor any other substantive right for
money damages upon which a Tucker Act claim may be founded. Consequently, the
Court of Federal Claims does not have jurisdiction over this case. We reverse the
transfer order and remand to the district court for further proceedings.
05-1605 5