Barry Eugene Brooks v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

BARRY EUGENE BROOKS,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2020-1500
______________________

Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00587-LKG, Judge Lydia Kay Griggsby.
______________________

Decided: August 6, 2020
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B
ARRY EUGENE BROOKS, Kemp, TX, pro se.

ROBERT JOEL BRANMAN, Tax Division, United States
Department of Justice, Washington, DC, for defendant-ap-
pellee. Also represented by BRUCE R. ELLISEN, RICHARD E.
ZUCKERMAN.
______________________

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BROOKS v. UNITED STATES
2
Before WALLACH, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
Barry E. Brooks appeals from the final decision of the
United States Court of Federal Claims dismissing his com-
plaint for lack of subject-matter jurisdiction. Specifically,
Mr. Brooks appears to challenge the Court of Federal
Claims’s determination that it lacked subject-matter juris-
diction to consider his claim of unlawful seizure of assets,
and complains that it erred by failing to address his claims
of defamation, libel, and slander. Because the Court of
Federal Claims lacks subject-matter jurisdiction over
Mr. Brooks’s claims, we affirm.
B
ACKGROUND
In 2001, Mr. Brooks was indicted on three counts of
willful failure to file his tax returns. In 2002, Mr. Brooks
was sentenced to twenty-one months of incarceration with
one year of supervised release. In 2005, Mr. Brooks’s su-
pervised release was revoked, and he was sentenced to an
additional nine months of incarceration. During that time,
the Internal Revenue Service (IRS) undertook certain col-
lection activities against Mr. Brooks, successfully satisfy-
ing his unpaid income tax liability for 1987, but not his
liabilities for 1988 to 1992.
On June 14, 2018, Mr. Brooks filed a petition in the
United States Tax Court disputing that he received certain
notices of deficiency and notices of determination from the
IRS for the years 1987 to 1999. On August 23, 2019, the
Tax Court dismissed Mr. Brooks’s petition for lack of juris-
diction, explaining that (1) for the years 1987 to 1997,
Mr. Brooks had failed to file his petition within the pre-
scribed time; and (2) for the years 1998 and 1999, no notice
of deficiency or notice of determination had been issued.
On April 15, 2019, Mr. Brooks filed a complaint in the
Court of Federal Claims alleging that the Government
(1) “violat[ed his] due process of law” by seizing his
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BROOKS v. UNITED STATES
3
“automobile, household goods and professional equip-
ment,” as well as his “personal bank account”; (2) “misin-
formed” his “[f]amily, friends and dental patients”
regarding his “false prosecution, sentencing, and two year
incarceration”; and (3) violated his rights under the Fourth
Amendment to the United States Constitution by “taking
[his] assets” without authority. S.A. 11–12, 95.
1
Liberally
construing Mr. Brooks’s claims as alleging wrongful levy,
unjust conviction, defamation, and constitutional law vio-
lations, the Government moved to dismiss his claims on the
ground that the trial court did not have subject-matter ju-
risdiction over them.
In granting the Government’s motion, the trial court
held that it lacked subject-matter jurisdiction over
Mr. Brooks’s constitutional law claims and wrongful levy
claims. Brooks v. United States, No. 19-587T, 2020 WL
755361, at *4 (Fed. Cl. Feb. 14, 2020). The trial court ex-
plained that it could not “consider constitutional claims
based upon a violation of the Due Process Clause of the
Fifth and Fourteenth Amendments,” or claims based upon
a violation of the Fourth Amendment, because these provi-
sions are not money-mandating as required under the
Tucker Act, which specifies the legal subject matter that
may be heard by the Court of Federal Claims. Id. The trial
court also dismissed Mr. Brooks’s wrongful levy and
wrongful collection claims, explaining that it did not have
“jurisdiction to entertain a claim for damages flowing from
the allegedly unlawful collection activities of the IRS,” nor
did it have jurisdiction over a claim “challenging the impo-
sition of tax liens.” Id. at *4–5.
Mr. Brooks appeals to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).

1
“S.A” refers to the Supplemental Appendix at-
tached to the Defendant-Appellee’s Brief.
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BROOKS v. UNITED STATES
4
DISCUSSION
On appeal, Mr. Brooks first argues that the trial court
erred by construing his claim as a “Tax Refund Claim” ra-
ther than a claim “for damages suffered from the unlawful
and unauthorized seizure of [his] assets.” Appellant’s
Br. 1.
2
Mr. Brooks additionally argues that the trial court
erred by failing to address his claim regarding “substitut-
ing false information.” Id. Because we agree that the trial
court does not have subject-matter jurisdiction over his
claims, we affirm the trial court’s decision dismissing
Mr. Brooks’s complaint for the reasons discussed below.
I
We review the trial court’s dismissal for lack of subject-
matter jurisdiction de novo, giving no deference to the trial
court’s determination. Petro-Hunt, L.L.C. v. United States,
862 F.3d 1370, 1378 (Fed. Cir. 2017) (citing Fidelity &
Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d
1082, 1087 (Fed. Cir. 2015)). The Court of Federal Claims
is a court of limited jurisdiction. Marcum LLP v. United
States, 753 F.3d 1380, 1382 (Fed. Cir. 2014) (citing Terran
v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1309
(Fed. Cir. 1999)). The Tucker Act is the primary statute
conferring jurisdiction on the Court of Federal Claims.
28 U.S.C. § 1491; Taylor v. United States, 303 F.3d 1357,
1359 (Fed. Cir. 2002). It provides that the Court of Federal
Claims shall have jurisdiction over particular cases limited
to:
[A]ny 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

2
When referencing Mr. Brooks’s informal brief, the
page numbers correspond to the page numbers stamped at
the top of each page by this court’s document filing system.
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BROOKS v. UNITED STATES
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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 United States, and the
substantive law must be money-mandating.” Smith
v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (cit-
ing Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir.
2004) (“[J]urisdiction under the Tucker Act requires the lit-
igant to identify a substantive right for money damages
against the United States separate from the Tucker Act it-
self.” (alteration in original))). The Tucker Act itself does
not create a substantive right enforceable against the
United States. Id. (citing Ferreiro v. United States,
501 F.3d 1349, 1351 (Fed. Cir. 2007)). To come within ju-
risdictional reach, “a plaintiff must identify a separate
source of substantive law that creates the right to money
damages.” Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (first citing United States v. Mitchell,
463 U.S. 206, 216 (1983); then citing United States
v. Testan, 424 U.S. 392, 398 (1976)).
II
Mr. Brooks first asserts that his claim for damages
“from the unlawful and unauthorized seizure of [his] as-
sets” was “mistakenly referred to as a Tax Refund Claim.”
Appellant’s Br. 1. He points to the subject line in the
header of the trial court’s “Memorandum Opinion and Or-
der,” which recites “Pro Se; RCFC 12(b)(1); Subject-Matter
Jurisdiction; Tax Refund Claim.” Id. at 3. We do not agree
with Mr. Brooks’s characterization of the trial court’s anal-
ysis. Though the subject line does recite “Tax Refund
Claim,” the trial court did not treat Mr. Brooks’s claim as
a tax refund claim for purposes of dismissal. It appropri-
ately considered his claim as a request to “recover mone-
tary damages from the government . . . in connection with
the collection of certain federal income tax.” Brooks,
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BROOKS v. UNITED STATES
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2020 WL 755361, at *4 (emphasis added). Indeed, the trial
court differentiated between a tax refund claim—an action
“to recover any internal revenue tax erroneously or ille-
gally assessed”—and a damages claim—an action “for dam-
ages flowing from the allegedly unlawful collection
activities of the IRS.” Id. at *3.
Insofar as Mr. Brooks also challenges the trial court’s
determination that it lacks subject-matter jurisdiction over
his claim for damages related to the seizure of his assets,
we agree with the trial court. Even when reading
Mr. Brooks’s claim as one for damages arising from the
wrongful levy or wrongful collection activities of the IRS,
the trial court still does not have jurisdiction. See Ledford
v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002). A
claim for damages “in connection with any collection of
Federal tax with respect to a taxpayer” must be brought in
a United States District Court. Id. (quoting 26 U.S.C.
§ 7433(a) (2000)).
Assuming that Mr. Brooks contends that his assets
were seized in violation of his due process rights under the
Fifth Amendment, the trial court does not have jurisdiction
over such a claim. Smith, 709 F.3d at 1116. The Due Pro-
cess clause of the Fifth Amendment “do[es] not mandate
the payment of money and thus do[es] not provide a cause
of action under the Tucker Act.” Id. (citing LeBlanc
v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)); see
also Collins v. United States, 67 F.3d 284, 288 (Fed. Cir.
1995) (“[T]he due process clause does not obligate the gov-
ernment to pay money damages.” (collecting cases)). Simi-
larly, to the extent Mr. Brooks asserts that his assets were
seized in violation of his Fourth Amendment rights, the
trial court does not have jurisdiction because the Fourth
Amendment does not mandate the payment of money. See
Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997)
(“Because monetary damages are not available for a Fourth
Amendment violation, the Court of Federal Claims does
not have jurisdiction over [] such a violation.” (first citing
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BROOKS v. UNITED STATES
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United States v. Mitchell, 463 U.S. 206, 218 (1983); then
citing Murray v. United States, 817 F.2d 1580, 1582–83
(Fed. Cir. 1987))).
Mr. Brooks also appears to assert that the Government
lacked jurisdiction to seize his assets to collect taxes be-
cause, in his 2018 Tax Court case where he challenged the
notices of deficiency and determination for the years 1987
to 1999, the IRS moved to dismiss the case for lack of juris-
diction. Appellant’s Br. 1. Contrary to Mr. Brooks’s alle-
gations, moving to dismiss Mr. Brooks’s 2018 Tax Court
petition for lack of jurisdiction does not mean that the IRS
failed to satisfy the requirements necessary to collect his
unpaid income tax liabilities.
Finally, Mr. Brooks argues that the trial court failed to
address his claim of “substituting false information for
Claim of Petitioner.” Appellant’s Br. 1. We understand
Mr. Brooks’s argument to be that the trial court failed to
consider his claims of defamation, libel, and slander related
to the Government’s alleged act of “misinform[ing]” his
“[f]amily, friends and dental patients” about his “false pros-
ecution, sentencing, and two year incarceration.” S.A. 11–
12. Because defamation, libel, and slander are claims that
sound in tort law, the trial court does not have jurisdiction
over such claims. Shearin v. United States, 992 F.2d 1195,
1197 (Fed. Cir. 1993) (“It is well settled that the United
States Court of Federal Claims lacks . . . jurisdiction to en-
tertain tort claims.”). Indeed, by its express terms, the
Tucker Act excludes claims sounding in tort from the trial
court’s jurisdiction. 28 U.S.C. § 1491(a)(1); see also Rick’s
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008).
C
ONCLUSION
We have considered Mr. Brooks’s other arguments and
find that they also fail to satisfy the jurisdictional require-
ments of the Court of Federal Claims. Accordingly, we
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BROOKS v. UNITED STATES
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affirm the Court of Federal Claims’s dismissal of
Mr. Brooks’s complaint.
AFFIRMED
COSTS
No costs.
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