Case: 19-2407 Document: 24 Page: 1 Filed: 02/05/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GORDON PEKRUL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2407
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01234-MMS, Chief Judge Margaret M.
Sweeney.
______________________
Decided: February 5, 2020
______________________
GORDON PEKRUL, Wittmann, AZ, pro se.
SHERRA TINYI WONG, Tax Division, United States De-
partment of Justice, Washington, DC, for defendant-appel-
lee. Also represented by THOMAS J. CLARK, RICHARD E.
ZUCKERMAN.
______________________
Before DYK, TARANTO, and CHEN, Circuit Judges.
Case: 19-2407 Document: 24 Page: 2 Filed: 02/05/2020
2 PEKRUL v. UNITED STATES
PER CURIAM.
Gordon Pekrul filed a complaint with the United States
Court of Federal Claims, alleging that the Internal Reve-
nue Service, engaging in tax collection, had illegally col-
lected some of his assets. The Court of Federal Claims held
that it lacked subject-matter jurisdiction over Mr. Pekrul’s
claims and dismissed his complaint. We affirm.
I
The Internal Revenue Service (IRS) has asserted that
Mr. Pekrul owes the United States millions of dollars in
taxes for tax years 2002–2007. To collect the taxes assert-
edly owed, the IRS has placed liens on Mr. Pekrul’s prop-
erty and has garnished his Social Security benefits.
In May 2018, Mr. Pekrul filed a petition with the
United States Tax Court challenging the IRS’s assessment
of taxes for the years 2000–2017. The IRS, as respondent,
moved to dismiss the petition for lack of jurisdiction on var-
ious grounds. The Tax Court granted the motion.
In August 2019, Mr. Pekrul filed this action against the
United States in the Court of Federal Claims. He alleges
that the government has injured him “in the amount of
$9,721,832.93 by collecting assets without jurisdiction.”
S.A. 7. His damages are the sum of what he states is the
value of the liens against his property—$9,682,592.93—
and the garnishments of his Social Security benefits—
$39,240.00.
Id. Attached to his complaint are the Tax
Court’s order of dismissal for lack of jurisdiction, the IRS’s
motion to dismiss in the Tax Court, and a cover sheet indi-
cating that his suit relates to individual income taxation.
The Court of Federal Claims, on its own motion, dis-
missed Mr. Pekrul’s complaint for lack of jurisdiction.
Pekrul v. United States,
144 Fed. Cl. 556, 557 (2019). The
court reasoned that it lacks jurisdiction to hear an illegal
collection claim or a wrongful levy claim.
Id. at 559. The
court also held that the complaint did not come within its
Case: 19-2407 Document: 24 Page: 3 Filed: 02/05/2020
PEKRUL v. UNITED STATES 3
jurisdiction over tax refund claims because Mr. Pekrul had
not fulfilled prerequisites to bring a tax refund claim.
Id.
at 559–60. The court entered final judgment on August 28,
2019.
Mr. Pekrul timely filed a notice of appeal. S.A. 10; 28
U.S.C. §§ 2107, 2522. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
On appeal, Mr. Pekrul argues that the Court of Federal
Claims failed to consider the evidence showing his injury
and should have considered his claim under the Fourth
Amendment.
We review de novo the court’s dismissal for lack of sub-
ject-matter jurisdiction under the Tucker Act. Alpine PCS,
Inc. v. United States,
878 F.3d 1086, 1092 (Fed. Cir. 2018);
Folden v. United States,
379 F.3d 1344, 1354 (Fed. Cir.
2004). In reviewing a dismissal made on the complaint, we
accept as true all factual allegations in the complaint. Er-
ickson v. Pardus,
551 U.S. 89, 93–94 (2007). Although we
generally interpret the pleadings of a pro se plaintiff liber-
ally, Durr v. Nicholson,
400 F.3d 1375, 1380 (Fed. Cir.
2005) (citing Hughes v. Rowe,
449 U.S. 5, 9–10 (1980)), pro
se status cannot excuse a failure to demonstrate that juris-
dictional requirements are met, Henke v. United States,
60 F.3d 795, 799 (Fed. Cir. 1995). The party seeking relief
from the court bears the burden of establishing the court’s
jurisdiction. McNutt v. General Motors Acceptance Corp. of
Ind.,
298 U.S. 178, 189 (1936).
A
Although the exhibits attached to the complaint, and
the dollar value of the alleged injury, might suggest that
Mr. Pekrul is seeking a tax refund, the complaint does not
come within the Court of Federal Claims’ jurisdiction over
tax refund claims. A taxpayer seeking a refund of taxes
erroneously or illegally assessed or collected may bring an
Case: 19-2407 Document: 24 Page: 4 Filed: 02/05/2020
4 PEKRUL v. UNITED STATES
action against the government in the Court of Federal
Claims. 28 U.S.C. § 1346(a)(1). But there are two prereq-
uisites to the court’s jurisdiction over such a claim: first,
the taxpayer must have already paid the disputed taxes in
full, Flora v. United States,
357 U.S. 63, 75–76 (1958); sec-
ond, the taxpayer must have sought a refund from the IRS
before suing in the Court of Federal Claims. 26 U.S.C.
§ 7422(a). Mr. Pekrul has not shown that either prerequi-
site was met. Therefore, the Court of Federal Claims
lacked jurisdiction to hear Mr. Pekrul’s complaint as a
claim for a tax refund.
B
Mr. Pekrul’s complaint contains allegations of fraudu-
lent tax collection: it alleges that the government has “ma-
liciously” “collected assets . . . without jurisdiction”
resulting in “ill gotten gains.” S.A. 8. But a claim of fraud-
ulent tax collection is essentially a tort claim. The Court of
Federal Claims lacks jurisdiction over such a claim, as it
“sound[s] in tort.” 28 U.S.C. § 1491; see Brown v. United
States,
105 F.3d 621, 623 (Fed. Cir. 1997).
In certain circumstances, an action may be brought
against the federal government to challenge a tax levy, 26
U.S.C. § 7426; to seek damages for failure to release a lien,
id., § 7432; or to seek damages for a collection action that
recklessly or intentionally disregards the law,
id., § 7433.
But the Court of Federal Claims lacks jurisdiction to hear
such an action. See Ledford v. United States,
297 F.3d
1378, 1382 (Fed. Cir. 2002).
C
In his informal brief to this court, Mr. Pekrul argues
that the Court of Federal Claims should have applied the
Fourth Amendment, implying that the IRS’s assessment of
taxes against him, and its use of liens and garnishments to
collect those taxes, violated his right to be secure in his per-
son, houses, papers, and effects. This characterization does
Case: 19-2407 Document: 24 Page: 5 Filed: 02/05/2020
PEKRUL v. UNITED STATES 5
not aid Mr. Pekrul in identifying a claim within the Court
of Federal Claims’ jurisdiction.
Although some claims founded upon the Constitution
are within the Court of Federal Claims’ jurisdiction, a
plaintiff making such a claim must demonstrate that the
source of substantive law he relies upon can “fairly be in-
terpreted as mandating compensation by the federal gov-
ernment for the damages sustained.” United States v.
Mitchell,
463 U.S. 206, 216–17 (1983) (internal quotation
marks and citation omitted). The Fourth Amendment does
not mandate compensation by the federal government for
damages sustained. See id.;
Brown, 105 F.3d at 623.
Therefore, Mr. Pekrul’s Fourth Amendment claim is out-
side the jurisdiction of the Court of Federal Claims.
Brown,
105 F.3d at 623–24.
III
Because Mr. Pekrul has not shown that he has a claim
within the jurisdiction of the Court of Federal Claims, we
affirm the judgment dismissing the case.
AFFIRMED
