Visconi v. United States , 455 F. App'x 986 ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
FRANK J. VISCONI,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5086
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-656, Judge Susan G. Braden.
__________________________
Decided: January 11, 2012
___________________________
FRANK J. VISCONI, of Dover, Tennessee, pro se.
JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and FRANKLIN E. WHITE, JR., Assistant Director. Of
counsel was JAMES D. VALENTINE, United States Marine
VISCONI v. US 2
Corps, Department of the Navy, Office of the Judge Advo-
cate General, of Washington, DC.
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Plaintiff Frank J. Visconi (“Visconi”) appeals a final
decision of the United States Court of Federal Claims
(“Claims Court”) dismissing his complaint pursuant to
Claims Court Rule 12(b)(1) for lack of subject matter
jurisdiction. Visconi v. United States, 98 Fed. Cl. 589, 596
(2011). We affirm.
BACKGROUND
Visconi served on active duty in the United States
Marine Corps (“USMC”) from July 1964 to July 1968, and
then in the USMC Reserve until July 19, 1970, at which
point he received an honorable discharge. Visconi main-
tains that on May 2, 1969, he was awarded the Bronze
Star Medal with a combat “V” and the Purple Heart
Medal. Visconi’s DD-214 (“Certificate of Release or Dis-
charge from Active Duty”), DD-215 (“Correction to DD-
214”), and Service Record Book do not reflect his having
received these medals. Starting in 2007, Visconi made
several requests that the Board for the Correction of
Naval Records (“BCNR”) and the USMC Headquarters
Manpower Management Division, Military Awards
Branch (“MMMA”) correct his records to reflect these
awards, but all of his requests were denied.
On September 29, 2010, Visconi filed a complaint in
the Claims Court alleging that the BCNR and MMMA
improperly denied his requests to correct his military
records. The complaint requested that the Claims Court
compel the BCNR and MMMA to correct his service
3 VISCONI v. US
records to reflect the awards of the disputed medals and
citations, and for other injunctive relief. Visconi did not
assert a monetary claim. The Claims Court dismissed the
complaint for lack of subject matter jurisdiction, holding
that Visconi had failed to allege a claim under a money-
mandating statute. Visconi, 98 Fed. Cl. at 594-96.
Visconi timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3). We review de novo a deci-
sion of the Claims Court to dismiss for lack of jurisdiction.
Brown v. United States, 86 F.3d 1554, 1559 (Fed. Cir.
1996).
DISCUSSION
On appeal, Visconi argues that the case should be re-
manded to the Claims Court, or, in the alternative, to an
“appropriate court” to hold a hearing on the merits of his
case. J.A. 7. To demonstrate Tucker Act jurisdiction, a
plaintiff has the burden of identifying a constitutional
provision, federal statute, executive agency regulation, or
independent contractual relationship that provides a
substantive right to money damages, that is, a money-
mandating provision. Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc).
Here, Visconi did not establish a basis for jurisdiction
of the Claims Court. First, 10 U.S.C. § 1552, related to
claims for correction of military records, is not a money-
mandating statute that gives rise to jurisdiction under the
Tucker Act. Martinez v. United States, 333 F.3d 1295,
1315 (Fed. Cir. 2003). Absent a right to money provided
by Congress, money damages are not an available remedy
for breach of a military enlistment contract, and thus
Visconi’s military enlistment contract alone cannot be a
basis for a claim under the Tucker Act. See United States
v. Larionoff, 431 U.S. 864, 869 (1977); Bell v. United
States, 366 U.S. 393, 401 (1961); Jablon v. United States,
VISCONI v. US 4
657 F.2d 1064 (9th Cir. 1981) (“[M]oney damages are not
an available remedy for the government’s breach of an
enlistment contract.”). Moreover, Visconi’s complaint
seeks only equitable relief, not money damages. The
Tucker Act does not provide independent jurisdiction over
claims for equitable relief. Brown v. United States, 105
F.3d 621, 624 (Fed. Cir. 1997). We therefore conclude
that the Claims Court correctly dismissed the complaint
for lack of subject matter jurisdiction.
After filing his notice of appeal with this court, Vis-
coni requested the Claims Court transfer his case to a
federal district court, and on appeal Visconi makes a
similar request. This argument was not properly raised
before the Claims Court, so we do not consider it here.
See Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420,
1426 (Fed. Cir. 1997).
COSTS
No costs.