Cassie Elizabeth McKenzie v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CASSIE ELIZABETH MCKENZIE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5022
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0891, Judge Susan G. Braden.
______________________
Decided: April 9, 2013
______________________
CASSIE ELIZABETH M CK ENZIE, of Danbury, Connecti-
cut, pro se.
ERIC P. BRUSKIN, 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. D ELERY , Principal Depu-
ty Assistant Attorney General, J EANNE E. D AVIDSON,
Director, and HAROLD D. L ESTER, Assistant Director.
______________________

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CASSIE MCKENZIE v. US 2
Before D YK, SCHALL , and P ROST , Circuit Judges.
P ER CURIAM .
Cassie Elizabeth McKenzie appeals from a judgment
of the United States Court of Federal Claims (“Claims
Court”) dismissing her complaint for lack of jurisdiction.
See McKenzie v. United States, No. 11-CV-0891 (Fed. Cl.
Sept. 26, 2012). We affirm.
BACKGROUND
McKenzie is currently incarcerated in the Federal
Correctional Institution in Danbury, Connecticut. In
2011, McKenzie filed three administrative tort claims
with the Federal Bureau of Prisons (“Bureau”), seeking a
total of $26 million in damages. Her first claim alleged a
“public nuisance,” consisting of “abnormally unsanitary
conditions [caused] by being exposed to facets [sic] (five)
that gives [sic] off a vile odor through out [her prison
housing unit].” She further alleged that the “public
nuisance has created a private right [by] caus[ing] a
significant harm that is [of] a continuous tortious nature.”
McKenzie’s subsequent claims sought damages for
“[r]etaliation [t]hrough [t]he [a]buse [o]f [p]rocess [d]ue
[t]o [her] [p]ending [t]ort [c]laims,” and “[i]ntentional
[i]nfliction [o]f [e]motional [d]istress.” The Bureau denied
each of McKenzie’s tort claims, finding that she did not
state a claim under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b). The letters denying McKenzie’s
claims each stated that she could seek further review by
“bring[ing] an action against the United States in an
appropriate United States District Court.”
Instead, McKenzie brought suit in the Claims Court,
asserting jurisdiction under the Tucker Act, 28 U.S.C.
§ 1491. The court dismissed for lack of jurisdiction,
finding that it did not have jurisdiction over tort claims

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CASSIE MCKENZIE v. US 3
and that all of McKenzie’s claims sounded in tort.
McKenzie, No. 11-CV-0891 (slip op., at 4).
McKenzie timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review the Claims Court’s jurisdictional conclu-
sion de novo. Todd Constr., L.P. v. United States, 656
F.3d 1306, 1310 (Fed. Cir. 2011).
The Tucker Act limits the Claims Court’s jurisdiction
to “cases not sounding in tort.” 28 U.S.C. § 1491(a)(1); see
also Trauma Serv. Grp. v. United States, 104 F.3d 1321,
1327 (Fed. Cir. 1997). McKenzie’s claims here—public
nuisance, abuse of process, and intentional infliction of
emotional distress—are all textbook examples of causes of
action that sound in tort. See Prosser and Keeton on the
Law of Torts §§ 12, 90, 121 (W. Page Keeton gen. ed., 5th
ed. 1984). Thus, the Claims Court correctly found that
McKenzie’s claims fell outside of its Tucker Act jurisdic-
tion.
McKenzie appears to argue that 18 U.S.C. § 4042,
which requires the Bureau to “provide suitable quarters
[for] all persons charged with or convicted of offenses
against the United States,” constitutes a contract between
the United States and the Bureau as to which she is a
third-party beneficiary. However, a federal agency’s
breach of statutory duties is not itself a breach of contract.
See Scott Timber Co. v. United States, 333 F.3d 1358,
1369 (Fed. Cir. 2003). Here, as the Bureau’s letters to
McKenzie correctly indicated, the remedy for a breach of
the Bureau’s statutory duties is a suit in federal district
court under the FTCA. See United States v. Muniz, 374
U.S. 150, 164–65 (1963).
We therefore affirm the Claims Court’s dismissal of
McKenzie’s complaint.

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CASSIE MCKENZIE v. US 4
AFFIRMED
COSTS
No costs.

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