Rakowitz v. United States , 490 F. App'x 345 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ARTHUR RAKOWITZ,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5038
__________________________
Appeal from the United States Court of Federal
Claims in case no. 11-CV-391, Judge Christine O.C.
Miller.
_________________________
Decided: July 13, 2012
_________________________
ARTHUR RAKOWITZ, of Fort Sam Houston, Texas, pro
se.
BARBARA E. THOMAS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
RAKOWITZ v. US 2
__________________________
Before RADER, Chief Judge, MAYER and SCHALL, Circuit
Judges.
PER CURIAM.
DECISION
Arthur Rakowitz appeals the final decision of the
United States Court of Federal Claims dismissing his
complaint for lack of jurisdiction. Rakowitz v. United
States, No. 11-391C (Fed. Cl. Oct. 28, 2011). We affirm.
DISCUSSION
I.
The pertinent facts are not in dispute. Mr. Rakowitz
filed suit in the Court of Federal Claims on June 15, 2011.
In his complaint, titled “Motion For Federal Tort Claim,”
he alleged that, while serving as an Army reservist, he
was denied leave by his company commander. According
to Mr. Rakowitz, the denial of leave led to the death of his
cow and calf because he was unable to care for the ani-
mals while he was on duty. In his complaint, Mr. Rako-
witz alleged that he was entitled to damages in the
amount of $7,300 under the Federal Tort Claims Act, 28
U.S.C. § 1346(b) (“FTCA”). On July 18, 2011, the gov-
ernment moved to dismiss the complaint pursuant to
Court of Federal Claims Rule (“RCFC”) 12(b)(1) for lack of
jurisdiction on the ground that Mr. Rakowitz’s claim
sounded in tort. The Court of Federal Claims granted the
motion on October 28, 2011. The court stated: “Because
plaintiff’s complaint pleads a tort and otherwise fails to
set forth a statute, regulation, or federal contract as a
jurisdictional basis, the complaint must be dismissed
pursuant to RCFC 12(b)(1) for lack of subject matter
jurisdiction.” Rakowitz v. United States, No. 11-391C,
3 RAKOWITZ v. US
slip. Op. at 3 (Fed. Cl. Oct. 28, 2011). This appeal fol-
lowed. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(3).
II.
The Court of Federal Claims derives its jurisdiction
from the Tucker Act, which provides as follows:
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, or for liquidated or unliquidated
damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1)(emphasis added). “The plain
language of the Tucker Act excludes from the Court of
Federal Claims jurisdiction claims sounding in tort.”
Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008). At the same time, Mr. Rako-
witz’s complaint clearly presents a tort claim. The allega-
tions in the complaint assert wrongful action on the part
of his commanding officer, and in his complaint Mr.
Rakowitz characterizes his claim as one for “tort[i]ous
liability damages” under the FTCA. The Court of Federal
Claims did not err in dismissing the complaint.
On appeal, Mr. Rakowitz suggests that the Court of
Federal Claims has jurisdiction over his complaint under
the Military Claims Act (“MCA”), see 10 U.S.C.
§§ 2731-2740, and the Military Personnel and Civilian
Employees Claims Act (“MPCECA”), see 31 U.S.C.
§§ 3701, 3721. Under the MCA, the Secretary of one of
the armed forces or the Judge Advocate General of an
armed force under his jurisdiction may settle, and pay
RAKOWITZ v. US 4
damages of not more than $100,000 with respect to,
certain claims for damage to or loss of personal property.
See 10 U.S.C. § 2733(a). Under the MPCECA, the “head
of an agency,” including the head of a military depart-
ment, “may settle and pay not more than $40,000 for a
claim against the Government made by a member of the
uniformed services under the jurisdiction of the agency or
by an officer or employee of the agency for damage to, or
loss of, personal property incident to service.” 31 U.S.C. §
3721(b)(1).
Neither the MCA nor the MPCECA vests the Court of
Federal Claims with jurisdiction over Mr. Rakowitz’s
complaint. A statute provides the Court of Federal
Claims with Tucker Act jurisdiction only if it “can fairly
be interpreted as mandating compensation by the Federal
Government.” Holmes v. United States, 657 F.3d 1303,
1309 (Fed. Cir. 2011) (quoting United States v. Navajo
Nation, 556 U.S. 287, 290 (2009)). Neither the MCA nor
the MPCECA satisfies this money mandating require-
ment. The reason is that both statutes merely authorize
the settlement and payment of certain claims. Neither
statute mandates compensation.
For the foregoing reasons, the decision of the Court of
Federal Claims dismissing Mr. Rakowitz’s complaint is
affirmed.
AFFIRMED