James W. Tindall v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES W. TINDALL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1143
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00757-DAT, Judge David A. Tapp.
______________________
Decided: March 6, 2024
______________________
J AMES T INDALL , Marietta, GA, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY .
______________________
Before REYNA, MAYER , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
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TINDALL v. US 2
James W. Tindall appeals pro se a decision of the
United States Court of Federal Claims that dismissed his
complaint for lack of jurisdiction and for failure to state a
claim. We affirm.
BACKGROUND
Mr. Tindall owns 2,400 shares of stock in the Public
Joint Stock Company Sberbank of Russia (“Sberbank”).
S.Appx11.1 In 2021, President Biden signed Executive Or-
der No. 14,024 (“EO 14024”). Fed. Reg. 20249 (Apr. 15,
2021). The United States Office of Foreign Assets
(“OFAC”), pursuant to EO 14024, issued sanctions prohib-
iting any securities transactions involving specified Rus-
sian financial institutions, including Sberbank. S.Appx21.
On April 26, 2022, Charles Schwab & Co., Inc., Mr. Tin-
dall’s brokerage firm, notified him of the impending actions
on his shares of Sberbank and, on May 25, 2022, placed his
shares into an OFAC-controlled escrow account. S.Appx34.
During April and May of 2022, Mr. Tindall sent letters
to various federal officials. See, e.g., S.Appx26–31. In these
letters, Mr. Tindall offered to sell his shares and, alterna-
tively, offered contract terms for use of his shares. Id. The
letters also included requested deadlines for response. Id.
The government did not respond. S.Appx50.
On May 22, 2023, Mr. Tindall filed a complaint before
the United States Court of Federal Claims (“CFC”).
S.Appx11. Mr. Tindall alleged that the government had
(1) violated his due process rights under the Fifth Amend-
ment; (2) breached an alleged contract with Mr. Tindall for
use of his shares; and (3) unconstitutionally taken his
shares. S.Appx18–19. The government moved to dismiss
for lack of jurisdiction and for failure to state a claim.
S.Appx45.
1 “S.Appx” refers to the supplemental appendix ac-
companying the government’s responding brief.
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TINDALL v. US 3
The CFC granted the government’s motion. S.Appx1.
The CFC found a lack of jurisdiction over Mr. Tindall’s Due
Process claim because “[the] Due Process Clause of the
Fifth Amendment does not mandate payment of money.”
S.Appx4. Regarding breach of contract, the CFC deter-
mined Mr. Tindall had failed to state a claim because a con-
tract was never formed. S.Appx5. The CFC also held Mr.
Tindall failed to state a takings claim because he had not
conceded the lawfulness of the government’s actions and,
even if he had, the government’s actions were in the inter-
est of national security and thus exempt from such allega-
tions. S.Appx5–6. In support, the CFC relied on
Paradissiotis v. United States, 304 F.3d 1271, 1275 (Fed.
Cir. 2002), which explains that “freez[ing] assets” as a part
of “valid regulatory measures taken to serve substantial
national security interests” does not constitute a compen-
sable taking. S.Appx6.
Mr. Tindall appeals. This Court has jurisdiction under
28 U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
This court reviews de novo the CFC’s grant of a motion
to dismiss for lack of jurisdiction. Inter-Tribal Council of
Arizona Inc. v, United States, 956 F.3d 1328, 1338 (Fed.
Cir. 2020). We also review de novo grants of motions to
dismiss for failure to state a claim. Id. We accept all fac-
tual allegations in the complaint as true and construe them
in the light most favorable to the non-moving party. Id.
D ISCUSSION
For the reasons discussed below, we affirm the CFC’s
order dismissing Mr. Tindall’s due process claim for lack of
jurisdiction, and his breach of contract and takings claims
for failure to state a claim.
We first address whether the CFC has jurisdiction over
Mr. Tindall’s claim under the Due Process clause of the
Fifth Amendment. The Tucker Act, 28 U.S.C. § 1491, pro-
vides the CFC with jurisdiction over claims against the
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TINDALL v. US 4
federal government for money damages, but it does not it-
self create a substantive cause of action against the United
States. United States v. Mitchell, 463 U.S. 206, 216−17
(1983) (quoting United States v. Testan, 424 U.S. 392, 398
(1976)). Instead, to come within the jurisdictional reach
and waiver of sovereign immunity provided under the
Tucker Act, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.”
Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525
F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc)).
Here, Mr. Tindall claims money damages for alleged vi-
olations of his due process rights under the Fifth Amend-
ment. See Appellant Informal Br. 9. Mr. Tindall’s
complaint identifies 28 U.S.C. § 1491(a)(1) as the basis for
jurisdiction, but Mr. Tindall’s complaint fails to point to a
separate source of substantive law that would create a
cause of action against the government. S.Appx11–12. The
Due Process clause of the Fifth Amendment does not man-
date the payment of money and thus does not, by itself, sat-
isfy the jurisdictional requirements of the CFC. See
LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.
1995). For these reasons, the CFC lacks jurisdiction over
Mr. Tindall’s due process claim.
We next look at Mr. Tindall’s breach of contract claim.
The elements of a binding contract with the government
are mutuality of intent between the parties, consideration,
unambiguous offer and acceptance, and authority on the
part of a government official to bind the United States. See
Biltmore Forest Broad. FM, Inc. v. United States, 555 F.3d
1375, 1380 (Fed. Cir. 2009). As to acceptance, an offeree
must demonstrate acceptance in response to an offer. See
RESTATEMENT (SECOND) OF CONTRACTS § 22(1). Here,
Mr. Tindall argues that the government accepted his al-
leged offer through certain “overt acts” including President
Biden’s issuance of EO 14024, the OFAC sanctions result-
ing in the transfer of his property to an escrow account, and
the use of “[his] property as part of defendant’s economic
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TINDALL v. US 5
war against Russia.” Appellant Informal Br. 13. But the
government’s alleged acts predate Mr. Tindall’s letters. See
Appellee Informal Br. 14. The government’s actions there-
fore do not constitute acceptance of Mr. Tindall’s alleged
offer. As a result, Mr. Tindall’s breach of contract claim
fails.
To the extent Mr. Tindall asserts that the government’s
actions following his “offer letters” constitute the govern-
ment’s acceptance, we disagree. At most, the government
simply remained silent after Mr. Tindall sent his letters.
Silence only operates as acceptance in limited circum-
stances. See RESTATEMENT (SECOND) OF CONTRACTS § 69
(1); see also Ibrahim v. United States, 799 F. App’x. 865,
868 (Fed. Cir. 2020) (noting that “[c]ontract law does not
permit one to send unsolicited letters to the govern-
ment . . . declaring that failure to respond to the letter con-
stitutes both formation and breach of a contract”). Mr.
Tindall has not alleged that the government’s silence falls
into one of these circumstances and thus has not suffi-
ciently pleaded the government’s acceptance here. Without
acceptance, there exists no contract, and without an exist-
ing contract, there can be no breach. Mr. Tindall therefore
fails to present a valid breach of contract claim.
Finally, Mr. Tindall fails to state a takings claim. The
Takings Clause of the Fifth Amendment provides “private
property [shall not] be taken for public use, without just
compensation.” U.S. Const. Amend. V. To establish CFC
jurisdiction, the “claimant must concede the validity of the
government action which is the basis of the taking claim.”
Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802–03
(Fed. Cir. 1993).
Here, Mr. Tindall argues that the holding of his shares
in an escrow account constitutes “an unconstitutional tak-
ings violation.” Appellant Informal Br. 14. On appeal, Mr.
Tindall asserts that the complaint and petition were refer-
ring only to the government’s failure to pay as unlawful.
Appellant Informal Br. 16–17. However, the record shows
otherwise. Mr. Tindall’s complaint alleges that the
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TINDALL v. US 6
government “illegally took” the shares through “unconsti-
tutional conduct.” S.Appx14. Thus, we conclude that Mr.
Tindall’s complaint does not “concede the validity of the
government action” and, absent concession, fails to state a
claim. Tabb Lakes, 10 F.3d at 802–03.
Even assuming that Mr. Tindall implicitly concedes the
lawfulness of the government’s actions, his takings claim
still fails. Mr. Tindall asserts that Paradissiotis is inappli-
cable and national security interests do not act as excep-
tions to the Fifth Amendment. See Appellant Informal Br.
24, 30. Mr. Tindall, however, does not provide any legal
support for why Paradissiotis does not govern here. As we
explained in that case, “valid regulatory measures taken to
serve substantial national security interests . . . have not
been recognized as compensable takings.” Paradissiotis,
304 F.3d at 1275. “[This] principle disposes of any sugges-
tion that the United States could freeze [foreign] assets in
this country only of it were prepared to pay the cost of any
losses resulting from the freeze.” Id. We see no error in
the CFC’s reliance on this case as an additional reason for
why Mr. Tindall’s takings claim fails at the 12(b)(6) stage.
CONCLUSION
We have considered Mr. Tindall’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, Mr. Tindall has failed to carry his burden and failed
to adequately state a claim. We affirm the CFC’s dismissal
of Mr. Tindall’s complaint.
AFFIRMED
COSTS
No costs.
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