Pamela Bennett, James Bennett v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA BENNETT, JAMES BENNETT,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1242
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00871-EHM, Judge Edward H. Meyers.
______________________
Decided: November 12, 2024
______________________
PAMELA BENNETT, Rancho Santa Fe, CA, pro se.
JAMES BENNETT, Rancho Santa Fe, CA, pro se.
YARIV S. PIERCE, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA
M. MCCARTHY.
______________________
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BENNETT v. US 2
Before HUGHES, MAYER, and STARK, Circuit Judges.
PER CURIAM.
James Bennett and Pamela Bennett (the “Bennetts”),
proceeding pro se, seek, as they have many times before,
compensation for the foreclosure by Bank of America, N.A.
(“BANA”) of a property owned by Pamela Bennett. In a
complaint filed in the Court of Federal Claims, the
Bennetts asserted various bases for the federal
government’s purported obligation to pay them, including
the statutory authority of the Office of the Comptroller of
the Currency (“OCC” or “Comptroller”) which they contend
is money-mandating, a consent order entered into between
BANA and the OCC, and a supposed illegal exaction of
their money. The Court of Federal Claims found the
Bennetts’ claims frivolous and granted the government’s
motion to dismiss for lack of subject matter jurisdiction.
We agree with the Court of Federal Claims. The
Bennetts failed to articulate a money-mandating source of
law giving the Court of Federal Claims jurisdiction, failed
to identify a contract or consent order that they have a
right to enforce, and fail to show any error in the trial
court’s judgment. Thus, we affirm.
I
A
James Bennett transferred his interest in a property
located in Rancho Santa Fe, California (the “Property”) to
his wife, Pamela, on February 26, 2007.1 Pamela sought
1 References to “App’x” are to the appendix filed with
the Bennetts’ opening brief. References to “S. App’x” are to
the supplemental appendix filed with the government’s
response brief.
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BENNETT v. US 3
and obtained a loan secured by a deed of trust against the
Property, “which identified America’s Wholesale Lender as
Lender, Pamela Bennett as the sole Borrower, Recontrust
Company, N.A. (‘Recontrust’) as Trustee, and Mortgage
Electronic Registration Systems, Inc. as Nominee.” App’x
2-3. On December 11, 2009, Recontrust instituted
foreclosure proceedings with respect to the Property. In
2012, Recontrust then sold the Property at public auction
to BANA, which was the highest bidder. BANA then
received the deed of trust to the Property.
B
Meanwhile, the OCC “conducted an examination of the
residential real estate mortgage foreclosure processes” of
various institutions, including BANA. S. App’x 24. The
OCC “identified certain deficiencies and unsafe or unsound
practices . . . in [BANA’s] initiation and handling of
foreclosure proceedings.” Id. As a result, the Comptroller
issued a cease and desist order to BANA (“Consent Order”),
and then BANA executed a Stipulation and Consent
(“Stipulation”). See 12 U.S.C. § 1818(b) (authorizing
Comptroller to order financial institutions to pay
restitution). In these documents, BANA agreed to take
various remediation steps, including providing certain
reimbursements.
As pertinent to this appeal, the Consent Order states
that it “constitutes a settlement of the cease and desist
proceeding against [BANA] contemplated by the
Comptroller, based on the unsafe or unsound practices
The parties raise no issue as to James Bennett’s
standing, so the Court of Federal Claims assumed for
purposes of its analysis that he had a sufficient interest in
the Property to be a plaintiff. See App’x 2 n.1. We do the
same.
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BENNETT v. US 4
described in the Comptroller’s Findings.” S. App’x 49.
Among other things, the Consent Order required BANA to
“reimburs[e] or otherwise appropriately remediat[e]
borrowers” for financial injury caused by errors,
misrepresentations, or other deficiencies identified in the
Comptroller’s review, and to take “appropriate steps to
remediate any foreclosure sale where the foreclosure was
not authorized.” S. App’x 40. The Consent Order
affirmatively indicates that it is a final order issued
pursuant to 12 U.S.C. § 1818(b) but “does not form, and
may not be construed to form, a contract binding the
Comptroller or the United States.” S. App’x 49-50.
Moreover, the Consent Order adds that nothing in it “shall
give to any person or entity, other than the parties hereto,
and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under the Stipulation and
Consent or this Order.” S. App’x 50.
In February 2012, OCC and BANA entered into a Civil
Settlement Agreement to formally settle claims that had
been addressed in the Consent Order. A year later, in
February 2013, OCC and BANA amended the Consent
Order (“Amendment”). In relevant part, the Amendment
repealed the portion of the Consent Order directing BANA
to remediate borrowers, and provided instead that BANA
would pay $1,127,453,261 into a Qualified Settlement
Fund. The proceeds of the Qualified Settlement Fund
would thereafter be “distribut[ed] to the In-Scope Borrower
Population,” which was defined as the group of borrowers
with a pending or completed foreclosure on their primary
residence at any time between January 1, 2009 and
December 31, 2010, and would occur “in accordance with a
distribution plan developed by the OCC and Board of
Governors [of the Federal Reserve System] in their
discretion.” S. App’x 67-68. The actual payments would be
made at the discretion of the Comptroller and Board of
Governors, by their paying agent, Rust Consulting, Inc.
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BENNETT v. US 5
C
Ever since the foreclosure of their Property, the
Bennetts have litigated numerous actions against BANA in
multiple state and federal courts, all of which have failed
to result in relief. See, e.g., Bennett v. Bank of Am., N.A.,
2021 WL 4355959, at *3 (W.D.N.C. Sept. 24, 2021)
(affirming dismissal of Bennetts’ attempt to relitigate state
court judgments in federal court); Bennett v. Bank of Am.,
N.A., 2021 WL 4355959 (W.D.N.C. Sept. 24, 2021) (finding
no private right of action and that Bennetts’ claims were
barred by res judicata); Bennett v. Bank of Am., N.A., 2021
WL 5242836 (W.D.N.C. Nov. 10, 2021) (denying motion to
vacate and finding no violation of due process, equal
protection, or res judicata), aff’d, 2022 WL 986988, at *1
(4th Cir. Mar. 31, 2022); Bennett v. Bank of Am., N.A., 2019
WL 1723402, at *3 (Cal. Ct. App. Apr. 18, 2019) (affirming
dismissal of claims including those alleging BANA
fraudulently represented its authority to cause recording
of Notice of Default and violated state foreclosure laws);
Bennett v. Bank of Am. Corp., 2015 WL 222515 (Cal. Ct.
App. Jan. 15, 2015) (affirming dismissals of claims alleging
fraudulent concealment and intentional misrepresentation
against financial institutions including BANA). On at
least one occasion, the Bennetts have been declared
vexatious litigants. See Bennett et al. v. Bank of America,
N.A., et al., 2019 WL 1723402, at *7-10 (Cal. Ct. App. Apr.
18, 2019).
The case before us was initiated by the Bennetts filing
a complaint against the United States in the Court of
Federal Claims on August 4, 2022. In it, they allege a
breach of fiduciary duties owed by the Comptroller under
the Consent Order and 12 U.S.C. § 1818(b)(6)(A), statutory
violations, breach of contract, vicarious liability of the
Comptroller for BANA’s acts, and illegal exactions by the
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BENNETT v. US 6
government.2 The government moved to dismiss,
contending that the Bennetts had not asserted any cause
of action over which the Court of Federal Claims had
jurisdiction, they have no enforceable contractual rights,
and they had not made any non-frivolous allegations that
their claims are governed by any money-mandating
statute.
The Court of Federal Claims carefully and thoroughly
considered all of the Bennetts’ claims and all of the
government’s arguments. First, the court agreed with the
government that while 12 U.S.C. § 1818(b)(6)(A) “concerns
the relief that the appropriate Federal banking agency may
seek for the enforcement of any effective and outstanding
notice or order issued under this section,” it is not a money-
mandating statute. App’x 9 (internal quotation marks
omitted). Instead, the court found, the statute confers
authority to mandate payment of money by deposit
institutions and required no money from the United States.
2 The Court of Federal Claims accurately
characterized the claims as follows:
(1) OCC breached its fiduciary duty under
the Consent Order and 12 U.S.C.
§ 1818(b)(6)(A)(i) by failing to provide
restitution to Plaintiffs; (2) OCC engaged
in a “continuing violation” of the Consent
Order and 12 U.S.C. § 1818(b)(6)(A)(ii) by
failing to provide such restitution; (3) OCC
breached the terms of the Consent Order;
(4) OCC assumed vicarious liability for
BANA in executing the Consent Order;
and (5) OCC illegally exacted funds from
Plaintiffs.
App’x 6.
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BENNETT v. US 7
Nor does § 1818(b)(6)(A) impose any fiduciary duties owed
by the Comptroller to the Bennetts, for reasons including
that it was within the Comptroller’s discretion whether or
not to order payment of restitution.
Second, the Court of Federal Claims found that the
Bennetts lacked any right to enforce the Consent Order. It
found that the Consent Order and associated orders, such
as the Stipulation Agreement, are not “contracts.” This
conclusion was based on the finding that there was no
mutuality of intent, as the Consent Order expressly states,
which is necessary to form a contract. Moreover, the
Consent Order disclaims the right of any third-party to rely
on it or beneficiaries thereto.
Third, the Court of Federal Claims determined that the
Bennetts failed to show that it had subject-matter
jurisdiction over their illegal exaction claim, i.e., their
claim that they have “paid money over to the Government,
directly or in effect, and seek[] return of all or part of that
sum.” Id. at 15-16 (internal quotation marks omitted). The
Bennetts did not “demonstrate that the statute or provision
causing the [alleged] exaction itself provides, either
expressly or by ‘necessary implication,’ that ‘the remedy for
its violation entails a return of money unlawfully exacted.’”
Id. at 16 (quoting Norman v. United States, 429 F.3d 1081,
1095 (Fed. Cir. 2005)).
After the Court of Federal Claims denied the Bennetts’
motion for reconsideration, they timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
II
The Tucker Act provides the Court of Federal Claims
with jurisdiction over “any claim against the United States
founded either 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
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BENNETT v. US 8
not sounding in tort.” Id. § 1491(a)(1). In order to establish
jurisdiction under the Tucker Act, a plaintiff must also
“demonstrate that the source of substantive law he relies
upon can fairly be interpreted as mandating compensation
by the Federal Government for the damages sustained.”
United States v. Mitchell, 463 U.S. 206, 216-17 (1983)
(internal quotation marks omitted). Because the Tucker
Act is only “a jurisdictional statute” and “does not create
any substantive right enforceable against the United
States for money damages,” United States v. Testan, 424
U.S. 392, 398 (1976), it is a plaintiff’s burden both to
establish jurisdiction and to “identify a separate source of
substantive law that creates the right to money damages,”
Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875
(Fed. Cir. 2007).
A pro se litigant’s complaint “is to be liberally
construed” and is “held to ‘less stringent standards’” than
a complaint drafted by counsel. Estelle v. Gamble, 429 U.S.
97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-
21 (1972)). “[A] court may not similarly take a liberal view
of th[e] jurisdictional requirement.” Kelley v. Sec’y, U.S.
Dep’t of Lab., 812 F.2d 1378, 1380 (Fed. Cir. 1987); see also
Roman v. United States, 61 F.4th 1366, 1370 (Fed. Cir.
2023).
III
A
The Bennetts contend that 12 U.S.C. § 1818(b)(6)(A)
must be money-mandating because, if it is not, OCC would
lack authority to order financial institutions to pay
restitution for actions resulting in unjust enrichment or
stemming from reckless disregard for the law. This is
incorrect. Instead, as the Court of Federal Claims stated:
“12 U.S.C. § 1818(b)(6) does confer authority to mandate
payment of money – but that authority is vested in the
Government to order such payment by depository
institutions,” such as BANA. App’x 9. “[T]here is simply
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BENNETT v. US 9
nothing in the statutory text that mandates or even implies
payments by the United States for any violation of Section
1818.” Id.
The Bennetts’ citation to New York & Presbyterian
Hospital v. United States, 881 F.3d 877 (Fed. Cir. 2018), is
unavailing. There, a hospital alleged that Internal
Revenue Code § 3102(b), which dictated that parties would
be indemnified in certain circumstances, was money-
mandating. We held that the statutory language involved
there, “§ 3102(b)’s ‘shall be indemnified’,” “is a money-
mandating source of substantive law.” Id. at 882, 888.
Here, by contrast, the relevant language provides that the
Comptroller has the “authority to issue an order” requiring
insured banking institutions and affiliated parties “to take
affirmative action to correct or remedy any conditions,”
including requiring those institutions to “make restitution
or provide reimbursement, indemnification or guarantee
against loss” under certain conditions. 12 U.S.C.
§ 1818(b)(6)(A). This provision is nothing like the “shall be
indemnified” language of IRC § 3102(b).
Thus, the Court of Federal Claims correctly
determined that it did not have jurisdiction under the
Tucker Act with respect to the Bennetts’ claims that OCC
violated statutory provisions or breached fiduciary duties
by failing to pay them restitution. The trial court properly
dismissed these claims for lack of jurisdiction.
B
The Bennetts also rely on § 1818(b)(6)(A) to argue that
OCC owes fiduciary duties to them, which it breached.
They add that the Comptroller’s control over the
settlement fund further demonstrates that the Comptroller
was acting as a trustee, thereby, again, undertaking
fiduciary duties to beneficiaries such as themselves. These
contentions, too, lack merit. As the Court of Federal
Claims stated, the Comptroller’s authority to order
reimbursement is discretionary. See App’x 9. Section
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BENNETT v. US 10
1818(b)(6)(A) does not mandate any restitution, let alone
full restitution. Nor was any trust established pursuant to
the settlement. In short, the Comptroller owes the
Bennetts no fiduciary duties.
C
The Bennetts’ illegal exaction claim fares no better.
With this claim, the Bennetts allege that, as part of the
settlement with BANA, the government took the Bennetts’
money “in contravention of the Constitution, a statute, or
a regulation.” Norman v. United States, 429 F.3d 1081,
1095 (Fed. Cir. 2005) (internal quotation marks omitted).
This claim, too, is predicated on the Bennetts’ mistaken
assumption that § 1818(b)(6)(A) mandates complete
reimbursement, which, as we have already explained, is
incorrect. Thus, as the Court of Federal Claims rightly
held, the Bennetts’ illegal exaction claim “necessarily fails
because Section 1818 does not explicitly or by necessary
implication require the United States to pay the Bennetts
in the event of a violation.” App’x 16; see also Norman, 429
F.3d at 1095 (“To invoke Tucker Act jurisdiction over an
illegal exaction claim, a claimant must demonstrate that
the statute or provision causing the exaction itself
provides, either expressly or by necessary implication, that
the remedy for its violation entails a return of money
unlawfully exacted.”) (internal quotation marks omitted).
While the Bennetts correctly point out that the Norman
requirement is separate from the requirement that a
statute be money-mandating, see Boeing Co. v. United
States, 968 F.3d 1371, 1384 (Fed. Cir. 2020), there is no
indication that the Bennetts have “paid money over to the
Government,” id. at 1383, or that the statute provides “a
cause of action with a monetary remedy,” Cyprus Amax
Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed. Cir.
2000). Therefore, we agree with the Court of Federal
Claims that the Bennetts “fail to allege facts sufficient to
establish the Court’s illegal exaction jurisdiction.” App’x
16.
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BENNETT v. US 11
D
The Bennetts additionally argue that the Consent
Order entered into between the Comptroller and BANA is
a contract enforceable by themselves as parties or as third-
party beneficiaries. They are wrong.
“As a general rule, if a plaintiff alleges breach of a
contract with the government, the allegation itself confers
power on the [Court of Federal Claims] to decide whether
the claim has merit.” Columbus Reg’l Hosp. v. United
States, 990 F.3d 1330, 1341 (Fed. Cir. 2021). However, if
“the plaintiff’s allegations are frivolous, wholly
insubstantial, or made solely for the purpose of obtaining
jurisdiction,” dismissal for lack of jurisdiction is
appropriate. Id. We agree with the Court of Federal
Claims that this case involves just such a situation and the
trial court lacked jurisdiction. App’x 15.
The Consent Order explicitly and unambiguously
states that it is not a contract: “This Order is intended to
be, and shall be construed to be, a final order issued
pursuant to 12 U.S.C. § 1818(b), and expressly does not
form, and may not be construed to form, a contract binding
the Comptroller of the United States.” App’x 91-92; see also
App’x 113 (Amendment saying same); App’x 169
(Stipulation Agreement saying same).3
3 The parties dispute whether Federal Circuit or
Fourth Circuit law governs issues relating to
interpretation of the Consent Order. We need not resolve
this dispute, as the interpretation of the documents is the
same regardless. See UPI Semiconductor Corp. v. Int’l
Trade Comm’n, 767 F.3d 1372, 1377 (Fed. Cir. 2014)
(holding that contracts and consent orders are interpreted
de novo); Seabulk Offshore, Ltd. v. Am. Home Assur. Co.,
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BENNETT v. US 12
We need not decide whether a contract exists here
because, even if there is a contract, it is indisputable that
the Bennetts are neither parties to it nor third-party
beneficiaries, and cannot enforce any alleged contract. The
Bennetts are indisputably not signatories to the Consent
Order. Moreover, the Consent Order specifically disavows
third-party beneficiaries, stating that “[n]othing in the
Stipulation and Consent or this Order, express or implied,
shall give to any person or entity, other than the parties
[t]hereto, and their successors [t]hereunder, any benefit or
any legal or equitable right, remedy or claim under the
Stipulation and Consent or this Order.” App’x 95-96; see
also App’x 113, 117 (Amendment saying same); App’x 170
(Stipulation Agreement saying same).
The Bennetts contend they are parties to the Consent
Order because they are mentioned in it. While a group of
borrowers that includes the Bennetts are in fact
mentioned, see App’x 103, a mere mention in a contract
does not render an individual a party to it. See Fid. &
Guar. Ins. Underwriters v. United States, 805 F.3d 1032,
1087 (Fed. Cir. 2015). Nor does the notice sent to the
Bennetts from Rust Consulting Inc. constitute a contract.
The notice does not name the Bennetts as parties but,
instead, simply indicates that they are eligible for
compensation. App’x 257 (“You are eligible to receive a
payment as the result of an agreement between [BANA]
and federal banking regulators.”).
377 F.3d 408, 418 (4th Cir. 2004) (“The interpretation of a
written contract is a question of law that turns upon a
reading of the document itself.”); see also Am. Canoe Ass’n
v. Murphy Farms, Inc., 326 F.3d 505, 512 (4th Cir. 2003)
(same for consent order). The Consent Order contains
unambiguous provisions that render the Bennetts’ claims
frivolous.
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BENNETT v. US 13
Therefore, the Court of Federal Claims did not err by
dismissing the Bennetts’ breach of contract claims. See,
e.g., Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir.
1990) (“To maintain a cause of action pursuant to the
Tucker Act that is based on a contract, the contract must
be between the plaintiff and the government.”).
IV
We have considered the Bennetts’ remaining
arguments and find them unpersuasive. For the reasons
articulated above, we affirm the decision of the Court of
Federal Claims.
AFFIRMED.
COSTS
Costs awarded to the government.
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