Smith v. United States , 709 F.3d 1114 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
DAVID LEE SMITH,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5105
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-719, Senior Judge Bohdan A. Futey.
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Decided: February 22, 2013
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DAVID LEE SMITH, of Denver, Colorado, pro se.
RYAN M. MAJERUS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director.
______________________
Before NEWMAN, MOORE, and REYNA, Circuit Judges.
NEWMAN, Circuit Judge.
2 DAVID SMITH v. US
David Lee Smith appeals the decision of the United
States Court of Federal Claims, which granted the gov-
ernment’s motion for dismissal of Mr. Smith’s claim for
$5,000,000 for an alleged Fifth Amendment taking effect-
ed when Mr. Smith’s license to practice law was revoked
by the Tenth Circuit and reciprocally by the State of
Colorado. The Court of Federal Claims held that in the
absence of a money-mandating statute providing for
compensation for such government action, the court had
no jurisdiction to consider the issues raised. The court
also held that because the revocation actions became final
no later than 1999, the suit, brought under the Tucker
Act, was barred by the six year statute of limitations, 28
U.S.C. § 2501. 1 We affirm.
DISCUSSION
Mr. Smith was disbarred by the Court of Appeals for
the Tenth Circuit, In re Smith, 76 F.3d 335, 336 (10th Cir.
1996), followed by reciprocal disbarment by the Fifth
Circuit, the United States District Court for the District of
Colorado, the Northern District of Texas, and the Colora-
do Supreme Court.
On May 4, 2007, the Court of Appeals for the Tenth
Circuit granted Mr. Smith’s motion for reinstatement,
provided that he met certain conditions. In re Smith,
2007 U.S. App. LEXIS 30356 (10th Cir. May 4, 2007).
These conditions were satisfied, and Mr. Smith was
reinstated on May 17, 2007. All of the other courts that
had reciprocally disbarred Mr. Smith then readmitted
him to their bars, except for the Colorado Supreme Court,
which declined to readmit Mr. Smith. The United States
District Court for the District of Colorado then reversed
1
Smith v. United States, 2012 U.S. Claims LEXIS
587 (Fed. Cl. May 30, 2012).
DAVID SMITH v. US 3
itself and denied Mr. Smith’s reinstatement, because he
remained disbarred by the Colorado Supreme Court. This
denial of reinstatement was affirmed by the Tenth Cir-
cuit. In re Smith, 329 Fed. App’x. 805, 806 (10th Cir.
2009).
Mr. Smith filed suit in the Court of Federal Claims,
seeking compensation and equitable relief. He states that
“the United States’ actions and decisions—all of which
constitute violations of Plaintiff’s right to substantive and
procedural due process of law and to the equal protection
of the laws under the Fifth Amendment—also constitute
judicial takings of Plaintiff’s private property right to
practice law and make a living, in violation of the Fifth
Amendment to the Constitution of the United States.”
Compl. 4-5. The court granted the government’s motion
to dismiss for lack of jurisdiction.
“We review de novo the Court of Federal Claims’s
dismissal of a claim for lack of jurisdiction.” Holmes v.
United States, 657 F.3d 1303, 1309 (Fed. Cir. 2011). On
appeal, Mr. Smith challenges (1) dismissal of his com-
plaint for lack of jurisdiction under the Tucker Act, and
(2) dismissal of his claims as barred by the statute of
limitations. We address each issue in turn.
The Tucker Act provides that the Court of Federal
Claims:
shall have jurisdiction to render judgment upon
any claim against the United States founded ei-
ther 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). To be cognizable under the Tucker
Act, the claim must be for money damages against the
4 DAVID SMITH v. US
United States, and the substantive law must be money-
mandating. See Todd v. United States, 386 F.3d 1091,
1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker
Act requires the litigant to identify a substantive right for
money damages against the United States separate from
the Tucker Act itself.”). The Tucker Act does not, of itself,
create a substantive right enforceable against the United
States, Ferreiro v. United States, 501 F.3d 1349, 1351
(Fed. Cir. 2007), but the plaintiff must identify a separate
contract, regulation, statute, or constitutional provision
that provides for money damages against the United
States. Id. No due process or equal protection claim
presented by Mr. Smith meets this requirement. The law
is well settled that the Due Process clauses of both the
Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of
action under the Tucker Act. See LeBlanc v. United
States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). It is equally
clear that the Fourteenth Amendment’s Equal Protection
Clause does not mandate the payment of money. See id.The Court of Federal Claims therefore had no jurisdiction
over plaintiff’s alleged violations of these rights.
Mr. Smith argues that his claims are “judicial tak-
ings,” based on the Supreme Court’s decision in Stop the
Beach Renourishment, Inc. v. Florida Department of
Environmental Protection, 130 S. Ct. 2592 (2010). In that
case the Court recognized that a takings claim can be
based on the action of a court. Id. at 2602 (“In sum, the
Takings Clause bars the State from taking private prop-
erty without paying for it, no matter which branch is the
instrument of the taking.”). Mr. Smith states that prior to
June 17, 2010 when Stop the Beach was decided, no cause
of action existed for judicial takings. Therefore, he ar-
gues, the decisions of the state courts refusing to readmit
him to their bars “constitute[] a separate and/or new
cause of action.”
DAVID SMITH v. US 5
Mr. Smith also argues that his claim did not become
“complete and present,” and the six-year statute of limita-
tions did not begin to run, until June 17, 2010, when Stop
the Beach was decided. He argues that until he had a
right of compensation, his claim did not accrue, for no
“taking” occurred in respect of the Fifth Amendment. A
taking claim first accrues for purposes of the statute of
limitations “when all the events have occurred which fix
the alleged liability of the defendant and entitle the
plaintiff to institute an action.” Hopland Band of Pomo
Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.
1988). Mr. Smith states that the final event was the
judicial decision in Stop the Beach.
Assuming arguendo that Mr. Smith’s licenses to prac-
tice law qualify as property for purposes of the Fifth
Amendment, the government actions depriving Mr. Smith
of this property included the disbarment orders by the
Tenth Circuit, the Colorado federal district court, and the
Supreme Court of Colorado, entered respectively on
February 13, 1996, April 29, 1996 and October 14, 1999.
Mr. Smith argues that before Stop the Beach no cause of
action for this type of judicial taking existed, and cites the
proposition that: “Unless Congress has told us otherwise
in the legislation at issue, a cause of action does not
become ‘complete and present’ for limitations purposes
until the plaintiff can file suit and obtain relief.” Bay
Area Laundry & Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of California, Inc., 522 U.S. 192, 201 (1997).
However, it was recognized prior to Stop the Beach that
judicial action could constitute a taking of property. See
generally Barton H. Thompson, Jr., Judicial Takings, 76
Va. L. Rev. 1449 (1990) (examining the history and evolu-
tion of judicial taking jurisprudence). Contrary to Mr.
Smith’s assertion that Stop the Beach “created a cause of
action for judicial takings,” the theory of judicial takings
6 DAVID SMITH v. US
existed prior to 2010. The Court in Stop the Beach did not
create this law, but applied it. The Court elaborated:
The Takings Clause . . . is not addressed to the ac-
tion of a specific branch or branches. It is con-
cerned simply with the act, and not with the
governmental actor (“nor shall private property be
taken”). There is no textual justification for say-
ing that the existence or the scope of a State’s
power to expropriate private property without just
compensation varies according to the branch of
government effecting the expropriation. Nor does
common sense recommend such a principle. It
would be absurd to allow a State to do by judicial
decree what the Takings Clause forbids it to do by
legislative fiat.
130 S.Ct. at 2601.
Therefore, Mr. Smith’s taking claim did not become
actionable due to Stop the Beach; instead, it became
“complete and present” no later than each court’s final
disbarment order, and the period of limitations started to
accrue on those dates.
Mr. Smith also argues that the three recent court ac-
tions relating to granting or denying his readmission
constituted separate or new causes of action and thus new
accrual periods, referring to: (1) the May 12, 2009 decision
of the Tenth Circuit affirming the Colorado district court’s
refusal of readmission; (2) the June 8, 2011 decision of the
Supreme Court of Colorado denying Mr. Smith’s motion to
vacate his disbarment order from that court; and (3) the
August 11, 2011 decision of the Colorado federal district
court denying Mr. Smith’s motion to vacate his disbar-
ment order from the court. However, these decisions were
not new takings, for they only reaffirmed the past dis-
barment decisions and maintained the past 1996 and
1999 decisions. We agree with the Court of Federal
DAVID SMITH v. US 7
Claims that they did not restart the limitations period.
The judgment of the Court of Federal Claims is
AFFIRMED.
Each party shall bear its costs.