Wanda Frazier v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WANDA FRAZIER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1326
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-01287-EDK, Judge Elaine Kaplan.
______________________
Decided: April 6, 2017
______________________
WANDA F RAZIER, Deland, FL, pro se.
F ARIDA ALI, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by CHAD A.
READLER , R OBERT E. K IRSCHMAN, J R., L. MISHA P REHEIM .
______________________
Before REYNA, MAYER , and HUGHES , Circuit Judges.
REYNA, Circuit Judge.

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FRAZIER v. US 2
Ms. Wanda Frazier appeals a final decision of the
United States Court of Federal Claims (“COFC”). The
COFC correctly dismissed Ms. Frazier’s complaint for
want of subject matter jurisdiction. We therefore affirm.
BACKGROUND
Ms. Frazier, proceeding pro se, filed a claim in the
COFC, alleging that the United States Department of
Health and Human Services and Wellcare Insurance, an
HMO, violated the Privacy Act, 5 U.S.C. § 552a, the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, and
the Health Insurance Portability and Accountability Act
(HIPAA), Pub. L. 104-191, 110 Stat. 1936 (1996).
Ms. Frazier alleged that these violations occurred when
her health and contact information were shared with
Wellcare’s customer service representatives.
The COFC dismissed her complaint sua sponte for
lack of subject matter jurisdiction. Ms. Frazier appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
D ISCUSSION
Subject matter jurisdiction is a threshold issue that
courts must address before they consider the merits of a
claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
89 (1998); Fisher v. United States, 402 F.3d 1167, 1173
(Fed. Cir. 2005). We review de novo a COFC decision to
dismiss for lack of jurisdiction. Banks v. United States,
741 F.3d 1268, 1275 (Fed. Cir. 2014). As the COFC
acknowledged, pro se filings are to be liberally construed,
but that does not alleviate a plaintiff’s burden to establish
jurisdiction. Colbert v. United States, 617 F. App’x 981,
983 (Fed. Cir. 2015); Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Pursuant to the Tucker Act, the COFC has limited ju-
risdiction to resolve certain claims against the United
States that are “founded either upon the Constitution, or
any Act of Congress or any regulation of an executive

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FRAZIER v. US 3
department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated dam-
ages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1). But the Tucker Act does not create any
substantive right of action against the United States.
United States v. Testan, 424 U.S. 392, 398 (1976). Plain-
tiffs must identify and plead an independent contractual
relationship, constitutional provision, federal statute, or
executive agency regulation that provides a substantive
right to money damages. See Todd v. United States, 386
F.3d 1091, 1094 (Fed. Cir. 2004). The source of substan-
tive law must mandate monetary compensation by the
federal government; it must be “money-mandating.”
Testan, 424 U.S. at 400.
The Tucker act limits the COFC’s jurisdiction to
claims against the United States; therefore, the COFC
properly dismissed Ms. Frazier’s claims against Wellcare.
United States v. Sherwood, 312 U.S. 584, 588 (1941). To
the extent that Ms. Frazier sought recovery for any al-
leged emotional distress or anxiety, those claims sound in
tort, and are thus expressly excluded from the COFC’s
jurisdiction under the Tucker Act. Keene Corp. v. United
States, 508 U.S. 200, 214 (1993).
The COFC does not have jurisdiction over claimed vio-
lations of the Privacy Act or FOIA because those statutes
do not contain money-mandating provisions. See Snowton
v. United States, 216 F. App’x 981, 983 (2007). Finally,
Ms. Frazier cannot bring a claim under HIPPAA, because
that statute does not create a private right of action.
Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Miller v.
Nichols, 586 F.3d 53 (1st Cir. 2009); Webb v. Smart Doc-
ument Sols, LLC, 499 F.3d 1078, 1081 (9th Cir.2007);
Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006). We
therefore affirm.
AFFIRMED

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FRAZIER v. US 4
COSTS
Each party to bear their own costs.

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