Hampel v. United States , 429 F. App'x 995 ( 2011 )

NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
NATALYA HAMPEL,
Plaintiff-Appellant,
v.
THE UNITED STATES,
Defendant-Appellee.
__________________________
2011-5068
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-542, Judge Edward J. Damich.
___________________________
Decided: July 12, 2011
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NATALYA HAMPEL, of Darlington, Maryland, pro se.
MATTHEW F. SCARLATO, 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 DEBORAH A. BYNUM, Assistant Director.
__________________________
HAMPEL v. US 2
Before RADER, Chief Judge, PROST, and O’MALLEY, Circuit
Judges.
PER CURIAM.
Natalya Hampel appeals from the decision of the
United States Court of Federal Claims (“Claims Court”)
dismissing her case for lack of subject matter jurisdiction.
For the reasons explained below, we affirm.
BACKGROUND 1
Mrs. Hampel’s claims relate to the death of her hus-
band, Joseph Hampel, at a Department of Veterans
Affairs (“DVA”) facility on March 26, 2002. According to
Mrs. Hampel, the circumstances leading to her husband’s
death began in October 1999, when Mr. Hampel, a World
War II combat veteran, was admitted to a DVA hospital
in Perryville, Maryland with weakness associated with
Guillain-Barré syndrome, an autoimmune disorder that
can lead to paralysis. While at the hospital, Mr. Hampel
sustained a wound due to allegedly negligent treatment
by DVA doctors and medical staff. The wound became
infected and required surgery at another DVA hospital in
Baltimore, Maryland. Mrs. Hampel claims that the DVA
surgeon negligently exacerbated the wound. Mr. Hampel
was, subsequently, transferred to a third hospital in Fort
Howard, Maryland where the hospital staff was allegedly
negligent in providing care and in approving Mr. Ham-
pel’s discharge to a fourth DVA facility before his wound
had fully healed.
1 This section is based on the factual allegations in
Mrs. Hampel’s complaint, which we take as true for the
purpose of determining whether the Claims Court had
subject matter jurisdiction.
3 HAMPEL v. US
Sometime in early March 2002, Mr. Hampel was
transferred back to the DVA hospital in Baltimore be-
cause his health was deteriorating. By then, Mr. Hampel
had become paralyzed, was still infected from the surgical
wound, had a urinary tract infection, and suffered from
other ailments. On March 15, 2002, Mr. Hampel was
discharged and transferred to the DVA Baltimore Reha-
bilitation and Extended Care Center (“RECC”). According
to Mrs. Hampel, the transfer was negligent because the
RECC lacked the equipment necessary to treat Mr. Ham-
pel adequately. Shortly after arriving at the RECC, Mr.
Hampel caught pneumonia, and the urinary tract infec-
tion progressed into septic shock. On March 26, 2002, Mr.
Hampel died from sepsis.
Following Mr. Hampel’s death, Mrs. Hampel applied
to the DVA for benefits, alleging that Mr. Hampel’s death
resulted from negligent medical treatment by DVA per-
sonnel. More than seven years of litigation ensued,
including proceedings before the Board of Veterans Ap-
peals and the United States Court of Appeals for Veterans
Claims. Ultimately, Mrs. Hampel’s claims were denied.
She, subsequently, brought an action against the United
States in the United States District Court for the District
of Maryland, raising allegations similar to those found in
this case. On April 15, 2010, the District Court dismissed
her complaint for lack of subject matter jurisdiction and
for failure to state a claim on which relief could be
granted. See Hampel v. United States, 706 F. Supp. 2d
629 (D. Md. 2010).
On August 11, 2010, Mrs. Hampel filed a pro se com-
plaint in the Claims Court, raising the following claims
against the United States: (1) medical malpractice and
negligence by DVA personnel which caused her husband’s
death; (2) violation of her constitutional rights to Due
Process and Equal Protection arising from the DVA’s
HAMPEL v. US 4
denial of her claims to her husband’s death benefits; (3)
violation of her constitutional right to privacy by DVA
personnel who made allegedly false statements in medical
records “designed to cast aspersions” on Mrs. Hampel; (4)
“gross, reprehensible negligence” by DVA personnel who
made false and abusive statements that were the proxi-
mate cause of Mr. Hampel’s death and caused Mrs. Ham-
pel to suffer emotional harm; and (5) violations of her
Fourth, Fifth, Eighth, Thirteenth, and Fourteenth
Amendment rights arising from the Government’s use of
“science-fiction type electromagnetic surveillance” against
her. On October 12, 2010, the Government moved to
dismiss the complaint for lack of subject matter jurisdic-
tion. The Claims Court granted the motion, holding that
the court lacked jurisdiction over: (1) the negligence and
medical malpractice claims because they sound in tort;
and (2) Mrs. Hampel’s Due Process, Equal Protection, and
privacy claims because they were premised on violations
of constitutional amendments that are not money man-
dating. Hampel v. United States, 97 Fed. Cl. 235 (Fed. Cl.
2011). The court further held that, “to the extent [Mrs.
Hampel] seeks remedy for the denial of her benefits
claims by the DVA,” the court lacks jurisdiction over such
claims. Id.
Mrs. Hampel timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
On appeal, Mrs. Hampel argues that the Claims
Court erred in: (1) concluding that it lacked jurisdiction
over her Due Process and Equal Protection claims; (2)
failing to “accept [that] the Takings Clause of the Fifth
Amendment which mandates payment for violations
brings the case within” the court’s jurisdiction; and (3)
failing to consider the fact that Mrs. Hampel was “tor-
5 HAMPEL v. US
tured by the defendant and that she has been injured
with a fatal condition by agencies of the United States.”
Mrs. Hampel also re-alleges various constitutional claims,
but does not argue that the Claims Court erred in its
determination that it lacked jurisdiction over the claims.
This court reviews de novo the Claims Court’s dis-
missal of Mrs. Hampel’s complaint for lack of jurisdiction.
See Samish Indian Nation v. United States, 419 F.3d
1355, 1363 (Fed. Cir. 2005). In conducting this review, we
take the facts alleged by Mrs. Hampel as true. See id. at
1364.
The Claims Court’s jurisdiction arises primarily from
the Tucker Act, which gives the court “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). It is well-
established that this statute confers jurisdiction on the
Claims Court only when the constitutional provision,
statute, or regulation in question expressly creates a
substantive right enforceable against the federal govern-
ment for money damages. United States v. Testan, 424
U.S. 392, 398 (1976).
With respect to Mrs. Hampel’s first argument, the
question is, thus, whether the Due Process Clauses of the
Fifth and Fourteenth Amendments and the Equal Protec-
tion Clause of the Fourteenth Amendment are money-
mandating. It is well-settled that these constitutional
provisions do not mandate payment of money. See
LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.
1995); see also Spain v. United States, 277 Fed. Appx. 988,
989 (Fed. Cir. 2008). Consequently, Mrs. Hampel’s Due
HAMPEL v. US 6
Process and Equal Protection arguments are not well-
taken.
Mrs. Hampel also argues that the Claims Court had
jurisdiction because the Takings Clause of the Fifth
Amendment mandates payment for violations. Whether
the Takings Clause is money-mandating, however, is
irrelevant because Mrs. Hampel’s complaint does not
allege a compensable taking.
Finally, Mrs. Hampel argues that the Claims Court
failed to consider her allegation that she was “tortured”
and has been “injured with a fatal condition” by the
Government. This argument appears to refer to Mrs.
Hampel’s claim that she was injured by the Government’s
alleged electromagnetic surveillance. Because this claim
sounds in tort, it falls outside of the Claims Court’s juris-
diction. See 28 U.S.C. § 1491(a). Accordingly, we find this
argument unpersuasive.
CONCLUSION
We have considered the other arguments raised by
Mrs. Hampel and find them meritless. While we are
sympathetic to Mrs. Hampel’s circumstances, and recog-
nize that her husband served his country honorably in
combat, these facts cannot bring Mrs. Hampel’s case
within the Claims Court’s limited jurisdiction. For the
foregoing reasons, the decision of the Claims Court is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.