Petition for Writ of Certiorari — Brian M. Burmaster, Petitioner v. United States

App. 1

NOTE:

This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

BRIAN M. BURMASTER,

Plaintiff-Appellant

V.

UNITED STATES,

Defendant-Appellee

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Appeal from the United States Court of Federal

Claims in No. 1:17-cv-01903-CFL, Judge Charles F.

Lettow.

Decided: August 7, 2018

BRIAN M. BURMASTER, Milwaukee, WI, pro Se.

SEAN SIEKKINEN, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for defendant-appellee. Also represented by TARA K. HoGAN, ROBERT EDWARD KIRSCHMAN,

JR., CHAD A. READLER.

Before O'MALLEY, CLEVENGER, and STOLL, Circuit

Judges.

App. 2

PER CURIAM.

Brian M. Burmaster appeals from the final decision of the United States Court of Federal Claims

("Claims Court") dismissing his pro se complaint for

lack of subject matter jurisdiction under Rule 12(b)(1)

of the Rules of the Court of Federal Claims. Burmaster

v. United States, No. 1:17-cv-01903, 2018 WL 1417683

(Cl. Ct. Mar. 22, 2018). Because the Claims Court correctly concluded that it lacked jurisdiction over the

claims raised in Burmaster's complaint, we affirm.

BACKGROUND

On September 26, 2007, a grand jury indicted Burmaster for three counts of knowingly transmitting in

interstate and foreign commerce threats to injure people in violation of 18 U.S.C. § 875(c). Indictment,

United States v. Burmaster, No. 2:07-cr-00628 (D. Utah

Sept. 26, 2007), ECF No. 1. Burmaster was remanded

to custody pending trial and, while in custody, underwent a psychiatric exam. Order, United States v. Burmaster, No. 2:07-cr-00628 (D. Utah Aug. 8, 2008), ECF

No. 43 at 1-2. After that initial exam, the district court

found by a preponderance of the evidence that Burmaster "suffer[ed] from a mental disease or defect rendering him mentally incompetent to the extent that he

is unable to assist properly in his defense." Id. Accordingly, the district court ordered that Burmaster be

committed to the custody of the Attorney General and

be hospitalized for treatment in a suitable facility for

a reasonable period of time to determine if he could be

App. 3

restored to competency, but, in no event, for longer

than four months. Id. at 2. In July of 2009, the United

States moved to dismiss the indictment without prejudice after the district court ultimately concluded that

Burmaster's mental competency was not readily restorable. Mot. for Leave to File Rule 48(a) Dismissal,

United States v. Burmaster, No. 2:07-cr-00628 (D. Utah

July 21, 2009), ECF No. 78. The district court granted

the dismissal and Burmaster was released from custody.

On November 22, 2013, a grand jury again indicted Burmaster for knowingly and intentionally

transmitting in interstate and foreign commerce, from

the country of Lebanon to the State of Louisiana,

threats to injure a person in violation of § 875(c). Indictment, United States v. Burmaster, No. 2:13-cr00265 (E.D. La. Nov. 22, 2013), ECF No. 3. Burmaster's

counsel moved for a psychiatric exam to determine

whether he was competent to stand trial, and he was

again committed to a federal facility for the purposes

of such an exam. Order & Reasons, United States v.

Burmaster, No. 2:13-cr-00265 (E.D. La. Oct. 21, 2016),

ECF No. 49 at 1-2. Doctors at the Federal Medical Center in North Carolina diagnosed Burmaster with

Schizoaffective Disorder, Bipolar type and Obsessive

Compulsive Personality Disorder. Id. at 3. This trial

court also found Burmaster incompetent to stand trial

at that time and he was again hospitalized for treatment to determine if his competency could be restored.

Id. Burmaster then filed a petition for writ of mandamus, in which he "complain[ed] of delay in a

App. 4

competency evaluation," "challenge [d] the district

court's determination that he is not competent to stand

trial and assert[ed] that his continued detention is unlawful and exceeds the maximum sentence he faces."

Judgment, United States v. Burmaster, No. 2:13-cr00265 (E.D. La. Aug. 17, 2017), ECF No. 69 at 1. The

petition was denied. Id. The Government filed, and the

district court granted, a motion to dismiss without

prejudice the indictment for good cause in view of Burmaster's psychiatric evaluations. Order, United States

v. Burmaster, No. 2:13-cr-00265 (E.D. La. Aug. 17,

2017), ECF No. 68. Again, Burmaster was released

from custody.

On December 5, 2017, Burmaster filed a complaint

against the United States in the claims Court, alleging unlawful imprisonment and a violation of his Sixth

Amendment right to a public trial by an impartial jury.

Suppl. J.A. 2, 4. Burmaster sought monetary relief for

the 1,241 total days he spent incarcerated, first, in

Utah between 2008 and 2009, and second, in Louisiana

between 2015 and 2017. He also sought "various forms

of equitable relief[,] including declarations that 'the

United States of America is not a [r] ogue [n] ation,' that

'Americans honor both the word and letter of [their]

international commitments,' that the "Mental Health'

statutes (18 [U.S.C. §1 4241 through 18 [U.S.C. §1 4246'

are unconstitutional, and that Mr. Burmaster is 'competent to stand trial." Burmaster, 2018 WL 1417683,

*1 (quoting Suppi. J.A. at 4). The Government moved

to dismiss Burmaster's complaint for lack of subject

matter jurisdiction.

App. 5

The Claims Court found that it lacked subject

matter jurisdiction over Burmaster's case. First, it

found that it lacked jurisdiction over Burmaster's various claims for declaratory relief because the Claims

Court's jurisdiction is restricted to claims for liquated

or unliquidated damages in cases not sounding in tort

under the Tucker Act, 28 U.S.C. § 1491(a)(1). Next, the

Claims Court found it lacked jurisdiction over Burmaster's claim of unjust imprisonment because he was

never convicted and he never provided, as required under 28 U.S.C. § 2513(a)—(b), a certificate proving his innocence of the crimes for which he was indicted.

Finally, the Claims Court found that it lacked jurisdiction over Burmaster's claim that the Government violated his Sixth Amendment right to a trial by jury

because the Claims Court's jurisdiction over constitutional claims arises only when the provisions at issue

are money mandating, and the Sixth Amendment is

not such a provision. Thus, the Claims Court dismissed

Burmaster's complaint.

Burmaster appeals, arguing that the Claims

Court has jurisdiction over his claims for unjust imprisonment, seeking equitable relief, and for violation

of the Sixth Amendment. We have jurisdiction over a

final decision for the Claims Court pursuant to 28

U.S.C. § 1295(a)(3).

DISCUSSION

We review de novo whether the Claims Court possessed jurisdiction. Wheeler v. United States, 11 F.3d

goe M

156, 158 (Fed. Cir. 1993). The Tucker Act defines the

jurisdiction of the Claims Court. Nat'l Air Traffic Controllers Assoc. v. United States, 160 F.3d 714, 716 (Fed.

Cir. 1998) (citing 28 U.S.C. § 1491(a)).

First, Burmaster contends that the Claims Court

has jurisdiction over his claim of unjust imprisonment.

The Tucker Act grants the Claims Court "jurisdiction

to render judgment upon any claim for damages by any

person unjustly convicted of an offense .against the

United States and imprisoned." Humphrey v. United

States, 60 F. App'x 292, 294 (Fed. Cir. 2003). To satisfy

the jurisdictional requirements for claims of unjust imprisonment, the person suing the United States must

submit a certificate or pardon stating that "[hi is conviction has been reversed or set aside on the ground

that he is not guilty of the offense of which he was convicted," and that "[hie did not commit any of the acts

charged.. . ." Id. (quoting 28 U.S.C. § 2513). Here, presumably because he was never convicted of any offense, Burmaster did not submit such a certificate or

pardon, nor did he otherwise assert that he did not

commit the crimes charged in the indictments. For

these reasons, the Claims Court correctly dismissed

Burmaster's claim for lack of jurisdiction.'

1

Burmaster's complaint also sought treble damages under

the Racketeer Influenced Corrupt Organizations ("RICO") Act, 18

U.S.C. § 1964(c). Suppl. J.A. at 2. The Claims Court held that it

"lacks jurisdiction over any claims that may be cognizable under

the RICO Act because jurisdiction over such claims 'is conferred

exclusively on the United States District Courts.'" Burmaster,

2018 WL 1417683, *2. Burmaster appears to challenge this on appeal. Reply Br. at 4-6. We agree with the Claims Court's finding

App. 7

To the extent Burmaster claims that his pretrial

determination was in excess of that necessary to determine if he could be restored to competency, any remedy

for that claim must be sought in the courts with jurisdiction over his custody. The Claims Court lacks authority to entertain any such action.

Next, Burmaster contends that the Claims Court

has jurisdiction over his claims seeking various forms

of equitable relief, including "a judgment on the constitutionality of the 'Mental Health' statutes (18 U.S.C.

[§14241 through 18 U.S.C. [§14246)." Suppi. J.A. at 4.

The Supreme Court has interpreted the Tucker Act "to

require that a plaintiff seeking to invoke the court'sjurisdiction must present a claim for 'actual, presently

due money damages from the United States." Nat'l

Air, 160 F.3d at 716 (quoting United States v. King, 395

U.S. 1, 3 (1969)). "Although the Tucker Act has been

amended to permit the [Claims Court] to grant equitable relief ancillary to claims for monetary relief over

which it has jurisdiction, there is no provision giving

the [Claims Court] jurisdiction to grant equitable relief

when it is unrelated to a claim for monetary relief

pending before the court." Id. (internal citations omitted) (emphasis added). Here, as noted above, the

Claims Court lacks jurisdiction over Burmaster's claim

for monetary relief, i.e. his claim for unjust imprisonment. Even if it had jurisdiction, Burmaster's claims

for equitable relief are unrelated to his claims for

that it lacks jurisdiction over RICO claims. See § 1964(a) ("The

district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter.

. .

monetary relief. Indeed, a judgment regarding Burmaster's competency to stand trial or a judgment regarding the constitutionality of 18 U.S.C. §§ 4241-46

would not help Burmaster obtain monetary relief under his claim for unjust imprisonment. Therefore, the

Claims Court correctly found that it lacked jurisdiction

over Burmaster's claims for equitable relief.

Finally, Burmaster contends that the Claims

Court has jurisdiction over his Sixth Amendment

claim. The Claims Court has jurisdiction over claims

against the United States that are founded upon a

Constitutional provision, but only those provisions

that mandate payment of money damages. Humphrey,

60 F. App'x at 295. The Sixth Amendment does not

mandate money damages under the circumstances

presented here, Smith v. United States, 36 F. App'x 444,

446 (Fed. Cir. 2002), therefore, the Claims Court correctly dismissed Burmaster's claim.

CONCLUSION

Because the Claims Court lacks subject matter

jurisdiction over each of Burmaster's claims, we affirm

the Claims Court's dismissal of Burmaster's complaint.

AFFIRMED

COSTS

No costs.

App. 9

In the United States Court of Federal Claims

No. 17-1903C

(Filed: March 22, 2018)

(NOT TO BE PUBLISHED)

BRIAN M. BURMASTER,

)

)

Plaintiff,

V.

UNITED STATES,

)

Defendant.

**

****** * **** * ** * ** *** **

Brian M. Burmaster, pro Se, Milwaukee, Wisconsin.

Sean Siekkinen, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With

him on the briefs were Chad A.. Readier, Acting Assistant Attorney General, Civil Division, Robert E.

Kirschman, Jr., Director, and Tara K. Hogan, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington

D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Brian Burmaster, has filed a complaint

seeking equitable and monetary relief for harms

App. 10

allegedly caused by the United States. See Compl. at 1,

4;' Def.'s Mot. to Dismiss ("Def.'s Mot.") at 2, ECF No.

6. Though the exact facts and allegations are somewhat indefinite, it appears that Mr. Burmaster was indicted for "threatening communications" in 2008 and

was subjected to two separate, allegedly unlawful incarcerations without ever standing trial. See Compl.

App. B. at 4-5; Compl. at 2. He was first held in Utah

for 506 days between 2008 and 2009 and in Louisiana

for 735 days between 2015 and 2017, for a total of 1,241

days. Compl. at 2; Def.'s Mot. at 1. Mr. Burmaster

claims that these detentions were unlawful because

"[t]here was never a trial as mandated by the Sixth

Amendment of our sacred [United States] Constitution." Compl. at 2. He claims that he was "denied

that fundamental human right" by "[glovernment psyfalsely stat[ed] that [he] was inchiatrists [who]

competent to stand trial." Compl. at 2 (internal

quotation marks omitted).

..

.

As a remedy for the alleged deprivation of his

Sixth Amendment rights and the 1,241 "hostage days"

he spent in prison without a trial, Mr. Burmaster requests "the sum of $112 million, which is in accordance

with the international unlawful imprisonment rate

[Iper the International Court of Justice." See Compl. at

2. According to Mr. Burmaster's reading of the decision

of the International Court of Justice in United States

of America v. Iran, hostages were compensated at the

Because only portions of the complaint are paginated, citations to particular pages of the complaint refer to the order in

which the pages actually appear.

1

App. 11

rate of $10,000 per day of captivity in 1979; "[in today's

inflation-adjusted currency, this amounts to $30,000

per day." See Compi. at 2. Because Mr. Burmaster seeks

treble damages against the United States under 18

U.S.C. § 1964(c), the Racketeer Influenced Corrupt Organizations ("RICO") Act, he claims putative damages

totaling $112,000,000. See Compi. at 2, 4.

Mr. Burmaster also seeks various forms of equitable relief including declarations that "the United

States of America is not a [riogue [n]ation," that

"Americans honor both the word and letter of [their]

international commitments," that the "Mental Health'

statutes (18 [U.S.C. §1 4241 through 18 [U.S.C. §1 4246)"

are unconstitutional, and that Mr. Burmaster is "competent to stand trial." See Compi. at 4.

Pending before the court is the government's motion for dismissal of Mr. Burm aster's complaint under

Rules 12(b)(1) of the Rules of the Court of Federal

Claims for lack of subject matter jurisdiction. See generally Def.'s Mot. Mr. Burmaster has responded in opposition to the government's motion, see generally Pl.'s

Resp., ECF No. 7, and all briefing has been completed.

STANDARDS FOR DECISION

In any action, the plaintiff has the burden of establishing jurisdiction. Reynolds v. Army & Air Force

Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). When

ruling on a motion to dismiss for lack of jurisdiction,

the court must "accept as true all undisputed facts

asserted in the plaintiff's complaint and draw all

App. 12

reasonable inferences in favor of the plaintiff" Trusted

Integration, Inc. v. United States, 659 F.3d 1159, 1163

(Fed. Cir. 2011). The leniency afforded to apro se plaintiff with respect to formalities does not relieve pro se

litigants of their obligation to satisfy jurisdictional requirements. Kelley v. Secretary, United States Dept of

Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

The Tucker Act waives the sovereign immunity of

the United States, see United States v. Mitchell, 463

U.S. 206, 212 (1983), and provides this court 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 departfor liquidated or unliquidated damages in

ment

cases not sounding in tort." 28 U.S.C. § 1491(a)(1).

However, the Tucker Act does not provide a plaintiff

with substantive rights. United States u. Testan, 424

U.S. 392, 398 (1976). Rather, to establish jurisdiction,

"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) (en banc in relevant part) (citing Mitchell, 463

U.S. at 216; Testan, 424 U.S. at 398). Jurisdiction over

claims for money damages does not give rise to "indeclaims for equitable rependent jurisdiction over

lief." See Taylor v. United States, 113 Fed. Cl. 171, 173

(2013); see also United States v. King, 395 U.S. 1, 2-3

(1969) (citing Glidden Co. v. Zdanok, 370 U.S. 530, 557

(1962)); United States v. Jones, 131 U.S. 1, 9 (1889),

United States v. Alire, 73 U.S. (6 Wall.) 573, 575 (1867));

Halim v. United States, 106 Fed. Cl. 677, 684-85 (2012)

...

.

.

.

App. 13

(citing National Air Traffic Controllers Assn v. United

States, 160 F.3d 714, 716-17 (Fed. Cir. 1998)) ("This

court has never been afforded the general authority to

issue declaratory judgments or to grant injunctive relief.").

This court also has jurisdiction over claims for

damages attributable to "unjust conviction and imprisonment." 28 U.S.C. § 1495 ("The United States Court of

Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States

and imprisoned."). But a suit under Section 1495 must

be accompanied by proof that the plaintiff's "conviction

has been reversed or set aside on the ground that he is

not guilty of the offense of which he was convicted...

or that he has been pardoned upon the stated ground

of innocence and unjust conviction." 28 U.S.C.

§ 2513(a). Proof of such facts "shall be by a certificate

of the court or pardon wherein such facts are alleged

to appear, and other evidence thereof shall not be received." Id. § 2513(b) (emphasis added). Submission of

the certificate specified in Section 2513(b) is necessary

to establish a basis for a claim pursuant to Sections

1495 and 2513. Sykes v. United States, 105 Fed. Cl. 231,

233 (2012) (citing Wncin v. United States, 468 F.2d 930,

933 (Ct. Cl. 1972)); see also Grayson v. United States,

141 Ct. Cl. 866, 869 (1958).

"If a court lacks jurisdiction to decide the merits of

a case, dismissal is required as a matter of law." Gray

v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex

parte McCardle, 74 U.S. (7 Wall.) 506, 51,4 (1868));

App. 14

Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir.

1985); see also Treviho v. United States, 113 Fed. Cl.

204,207 (2013) ("Where the court has not been granted

jurisdiction to hear a claim, the case must be dismissed.") (citing Arbaugh v. Y& H Corp., 546 U.S. 500,

514 (2006)).

ANALYSIS

This court lacks jurisdiction over Mr. Burmaster's

various claims for declaratory relief. See Taylor, 113

Fed. Cl. at 173. The court also lacks jurisdiction over

any claims that may be cognizable under the RICO Act

because jurisdiction over such claims "is conferred exclusively on the United States District Courts." Cf

Lowe v. United States, 76 Fed. Cl. 262, 266 (2007); 18

U.S.C. § 1964(c) ("Any person injured in his business or

property by reason of a violation of [the RICO Act] may

sue therefor in any appropriate United States district

court.") (emphasis added). Therefore, Mr. Burmaster is

not entitled to seek treble damages in this court.

Under the Tucker Act, the court's jurisdiction is

limited to, among other things, claims "for Equated or

unliquidated damages in cases not sounding in tort."

28 U.S.C. § 1491(a)(1). To the extent that Mr. Burmaster alleges that his detentions were tortious, there is

no jurisdiction to consider such claims. Pursuant to 28

U.S.C. §§ 1495 and 2513, this court also lacks jurisdiction over Mr. Burmaster's claims of unlawful imprisonment because he was not convicted of any offense

against the United States, nor has he provided a

App. 15

certificate as proof of his innocence of the crimes for

which he was indicted. See 28 U.S.C. § 2513(a)-(b). Because the provision of such a certificate is a prerequisite to establishing a cause of action, failure to provide

it warrants dismissal, whether for lack of jurisdiction,

Grayson, 141 Ct. Cl. at 869, or for failure to state a

claim, Bobka v. United States, 133 Fed. Cl. 405, 409-10

(2017); Sykes, 105 Fed. Cl. at 234.2

Mr. Burmaster's remaining claim is a right to

damages for denial of "that fundamental human right"

of a "public trial by an impartial jury" under "the Sixth

Amendment." See Compi. at 2 (internal alterations

omitted). Constitutional provisions can give rise to jurisdiction in this court when they are money mandating, i.e., when they "explicitly [or] implicitly obligate

the federal government to pay damages." United States

v. Connolly, 716 F.2d 882,887 (Fed. Cir. 1983) (en bane).

are [not] money

But "Sixth Amendment claim[s]

[and

t]hus,

they

fall

outside

the jurismandating[,]

diction of th[is c]ourt." See Winston v. United States,

465 Fed. Appx. 960, 961 (Fed. Cir. 2012).

...

...

In sum Mr. Burmaster has not asserted any claim

that gives rise to jurisdiction in this court, and this action must be dismissed. See Thoen,'765 F.2d at 1116.

Even if this court had jurisdiction over Mr. Burmaster's

claim of unlawful imprisonment, damages under the statute are

capped, at most, at "$100,000 for each 12-month period of incarceration." See 28 U.S.C. § 2513(e).

2

App. 16

CONCLUSION

For the reasons stated, the government's motion to

dismiss Mr. Burmaster's complaint is GRANTED. The

clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Is! Charles F. Lettow

Charles F. Lettow

Judge