Petition for Writ of Certiorari — Parsons v. United States, 127 S. Ct. 323 (2006) (No. 06-256)

Supreme Court, U.S.

FILED

06-256 JUN 2 2006

No.

* “OFFICE OF THE CLERK

In the

Dupreme Court of the United Yeates

Norm iIRTY

! Norman Parsons :

V.

UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Norman Parsons

Petitioner

535 N. Church Street

Visalia, California,

-93291-5004

QUESTIONS PRESENTED

1. What standard should be applied in the lower courts in

determining the admissibility of new evidence in the

context of the latitude historically provided to pro-se

litigants?

2. Has the United States Court of Federal Claims misapplied

and misinterpreted past Supreme Court decisions

concerning subject matter jurisdiction of the Court of

Claims and therefore denied Plaintiff due process of law

under the Fifth Amendment of the United States

Constitution?

i

PARTIES TO THE PROCEEDINGS

4

Pursuant to Rule 14.1(b), the following is the petitioning party here

and the appellant before the United States Court of Appeals for the

Federal Circuit:

Norman Parsons in behalf of LINMAR PROPERTY

MANAGEMENT TRUST.

The following is the respondent here and appellee below:

The United States.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED

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CONSTITUTIONAL AND STATUTORY PRO vIS IONS

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TABLE OF AUTHORITIES

CASES

Clinton v. United States, 191Ct. Cl. 604, 423 F.2d 1367........5

Eastport Steamship Corporation v. The United States 178

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Hafen v. United States, 30 Fed. Cl. 470, 473...............cceeeee 6

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Hunter Louis Girault v. The United States Ct. Cl.

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United States v. Mitchell, 463 U.S. 206, 217................. 3

United States v. Testan, 424 U.S. 392, 400................... 3

Untied States v. White Mountain Apache Tribe

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Ware v. United States 57 Fed Cl. 782, 784.............cc cc ceceoeee 6

STATUTES

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CONSTITUTIONAL PROVISION

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In the

Supreme Court of the United States

No

Norman Parsons in behalf of LINMAR PROPERTY

MANAGEMENT TRUST, PETITIONER

Vv.

UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully submits this petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Federal Circuit in this case, and

in so doing, agree to determine what standards should be

applied in the lower courts in determining the

admissibility of new evidence in the context of the

latitude historically provided to pro-se litigants.

Petitioner respectfully submits this petition for a writ of

certiorari to review the judgment of the Untied States

Court cf Federal Claims and in doing so agree to

determine whether Court of Claims has misapplied and

misinterpreted past Supreme Court decisions concerning

subject matter jurisdiction of the Court of Claims under

the Tucker Act.

OPINIONS BELOW

The decision of the Federal Circuit Court of Appeals,

decided per curium, is attached as Appendix A

The order of the United States Court of Federal Claims is

attached as Appendix B

JURISDICTION

The decision of the court of appeals was entered on March

10, 2006. The decision of this court is invoked under 28

U.S.C. 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in relevant part that “... nor shall any

person ... be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use without just compensation.”

The Tucker Act, (28 U.S.C. 1491) states in relevant part,

“The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the

United States founded either upor 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 not sounding in tort.

tl

‘+ TEMENT

The case of Norman Parsons in behalf of Linmar Property

Management Trust v. United States, (herein after referred

to as ‘Linmar’) attempts to bring to the forum the

questions presented to this Court. In September of 2004,

in the absence of any audit or examination and beyond the

three-year limitation of assessment, the IRS sent a Notice

of Deficiency to Plaintiff, disallowing $140,935.33 of

deductions on a tax return for the year ending in 2000. In

addition to the disallowed deductions a penalty of

$28,187.07 has been imposed upon Linmar Property

Management Trust. Plaintiff filed a claim for money

damages in the United States Court of Federal Claims,

(hereinafter referred to as, “Court of Claims’) against the

United States pursuant to the Tucker Act asking for

compensation for damages sustained as the result of the

~ said Notice of Deficiency being issued out of compliance

with cited regulatory requirements and established

procedures.

The United States Court of Federal Claims dismissed

Plaintiff's suit for lack of subject matter-jurisdiction

stating that the Tucker Act only confers jurisdiction where

the Plaintiff identifies an accompanying substantive claim

that “can fairly be interpreted as mandating compensation

by the Government for the damages sustained” United

States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting

United States v. Testan, 424 U.S. 392, 400 (1976). See

also United States v. White Mountain Apache Tribe, 537

U.S. 465, 473 (2003) (“‘a fair inference will do”)” The

Court of Claims further stated that the statutory provisions

and regulations cited by the Plaintiff did not mandate the

payment of money for their violation. (see Appendix B for

order of the Court of Claims.)

Linmar entered a Motion for Reconsideration to the Court

of Claims, which was denied on the ground that it was an

untimely filing (see Appendix C for order of the Court of

Claims). Plaintiff then petitioned the decision of the

Court of Claims to the United States Court of Appeals For

The Federal Circuit (hereinafter referred to as, ‘Court of

Appeals’) based upon evidence newly discovered by the

Plaintiff supporting the claim of implied contracts and

citing additional substantive laws that could fairly be

interpreted as mandating compensation by the Federal

Government for damages sustained. (see Appendix A for

order of the Court of Appeals).

The Court of Appeals affirmed the Court of Claims’

denial of Linmar’s motion for reconsideration on the

ground that “Newly discovered evidence is only such

evidence as could not have been discovered by the

exercise of due diligence prior to the rendition of the

initial decision.” Hunter Louis Girault v. The United

States Ct. Cl. 135; 1955.

In the case of Clinton v. United States, 191 Ct. Cl. 604,

423 F.2d 1367 (1970), the pro se claimant was not

expected to prepare pleadings according to the formal

requirement demanded of lawyers and was allowed to

amend his petition to the court even though it would have

been in violation of rule 39(e) of the Rules of the United

States Court of Federal Claims.

“However, the right of persons to represent

themselves is well recognized as is also the

practical impossibility that such persons can be

expected to prepare pleadings according to the

formal requirements that can be demanded of

attorneys, no matter how many times they try.

Clinton v. United States, 191 Ct. Cl. 604, 423 F.2d

1367 (1970)”

“We think the interests of justice here will be

served if the motion for leave to amend is allowed

since it does serve to clarify the nature of the

plaintiff's claim, to an extent sufficient for the

court to rule on it. The motion for leave to amend

is, therefore, allowed.” Clinton v. United States,

191 Ct. Cl. 604, 423 F.2d 1367 (1970)” ,

In the case Haines v. Kerner, 404 U.S. 519, 520, (1972),

the court held that the inmate's allegations were sufficient

to require that he be provided the opportunity to offer

supporting evidence.

“..allegations such as those asserted by petitioner,

however inartfully pleaded, are sufficient to call

for the opportunity to offer supporting evidence.

We cannot say with assurance that under the

allegations of the pro se complaint, which we hold

to less stringent standards than formal pleadings

drafted by lawyers...” Haines v. Kerner, 404 U.S.

519, 520, (1972)”

“The allegations of a pro se complaint are held to

less stringent standards than formal pleadings

drafted by lawyers.” Haines v. Kerner, 404 U.S.

519, 520, (1972)”

From the case of Haines v. Kerner, 404 U.S. 519, 520,

(1972), it was determined by this Court that [serious]

allegations from a pro se claimant should be provided

with an opportunity to offer supporting evidence. It

should then naturally follow that the allegation of money

improperly exacted by the IRS commands that the pro se

Claimant in Linmar be provided with the opportunity to

offer supporting evidence.

In the case of Hafen v. United States 30 Fed. Cl. 470;

1994, it is stated as follows:

“The Court of Federal Claims and its predecessor,

the Court of Claims, have historically given

significant leeway to pro se plaintiffs. Hafen v.

United States 30 Fed. Cl. 470; 1994”

In the case of Ware v. United States 57 Fed Cl. 782, 784,

2003 it is stated as follows:

“This Court has historically given "significant

leeway” to pro se plaintiffs. Hafen v. United

States, 30 Fed. Cl. 470, 473 (1994). See also

Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d

652, 92 S. Ct. 594 (1972) ("pro se complaint...

held to less stringent standards than formal

pleadings proffered by lawyers")” Ware v. United

States 57 Fed Cl. 782, 784, 2003

Linmar, as a pro se litigant, has been held to the same

stringent standards expected of lawyers by the Court of

Appeals in its decision to disallow the Plaintiff to offer

supporting evidence which is critical and pertinent to the

case. Plaintiff herein also calls attention to the term

“significant” in “significant leeway” in Hafen, and herein

maintains that this term, while not precisely defined, is

deliberately chosen. The leeway to be granted to pro-se

litigants is not to be mitigated or marginalized when the

issue of fair and impartial justice is at stake.

In restating Haines v. Kerner, 404 U.S. 519

“allegations such as those asserted by petitioner,

however inartfully pleaded, are sufficient to call

for the opportunity to offer supporting evidence”

According to Black’s Law Dictionary, Fifth Edition, page

102, the definition of art is:

“Systematic application of knowledge or skill in

effecting a desired result; also in employment,

occupation or business requiring such knowledge

or skill”

Without a doubt Linmar, as a pro se litigant, does not

possess the skill of a lawyer nor the systematic application

of knowledge to effect a desired result when petitioning

any court in the United States and therefore should not be

denied the opportunity by the Court of Appeals to offer

supporting evidence especially when the supporting

evidence is essential and critical to the case. The Plaintiff

did not know and could not reasonably be expected to

have known the full extent of all the contractual aspects of

the case. The decision of the Court of Appeals not to

grant Plaintiff wide latitude in the presentation of

pertinent evidence is in opposition to the system of

Americ2: jurisprudence and court precedence. As this

inconsistent application of a judicial principal is inimical

to the pursuit of justice, guidance by this Court is required

to determine and set standards for the lower courts on

what constitutes “new evidence” and the meaning of

“significant leeway” for pro se litigants.

The Plaintiff further maintains that The Court of Claims

has erroneously denied subject matter jurisdiction in

Linmar based upon faulty interpretations of previous

Supreme Court decisions.

The Tucker Act codified as 28 U.S. C. 1491, states in

pertinent part that,

“The United States Court of Federal Claims shall

have jurisdiction to render judgment upon 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 not sounding in tort.”

In United States v. Testan, 424 U.S. 392, (1976), This

Court determined that Court of Claims had no jurisdiction

to grant equitable relief to claimants bringing suit against

the United States and that the jurisdiction of the Court of

Claims, established by Congress, had been limited to

money claims against the United States Government.

“This Court observed that the Court of Claims was

established by Congress in 1855; that "throughout

its entire history,” until the King case was filed,

"its jurisdiction has been limited to money claims _

against the United States Government: United

States v. Testan 424 U.S. 392”

It is further stated in Testan that,

Where the United States is the defendant and the

plaintiff is not suing for money improperly

exacted or retained, the basis of the federal claim -

whether it be the Constitution, a statute, or a

regulation - does not create a cause of action for

money damages unless, as the Court of Claims has

stated, that basis "in itself. . . can fairly be

interpreted as mandating compensation by the

Federal Government for the damage sustained."

Eastport S. S. Corp. v. United States, 178 Ct. CL.,

at 607, 372 F.2d, at 1008, 1009

As demonstrated above in the case of Testan, this court

only reaffirmed the jurisdictional position of the Court of

Claims in a cause of action when the basis for the federal

claim mandates compensation. This language does not

rewrite the Tucker Act, voiding the “any claim” provision,

nor does it establish a new necessary condition to be met

for claims under the Tucker Act. Furthermore, the

claimants in the case of Testan did not seek money

damages based upon the Constitution, a statute or

regulation.

“the Tucker Act is merely jurisdictional, and grant

of a right of action must be made with specificity.

The respondents do not rest their claims upon a

contract; neither do they seek the return of money

paid by them to the Government. United States v.

Testan, 424 U.S. 392”

In Testan, where claimants did not rest their claim upon a

contract nor seek the return of money paid by them to the

Government, this court determined that entitlement to

moncy damages depended upon whether any federal

Statute could be interpreted as mandating compensation.

United States v. Testan, 424 U.S. 392 reads as follows:

“It follows that the asserted entitlement to money

damages depends upon whether any federal statute

"can fairly be interpreted as mandating

compensation by the Federal Government for the

damage sustained.” Eastport S. S. Corp. v. United

States, 178, Ct. Cl., at 607, 372 F.2d, at 1009;

Mosca v. United States, 189 Ct. Cl. 283, 290,417 -

F.2d 1382, 1386 (1969)”

The Supreme court, in this case, proceeded further to

consider if any federal statute could be “fairly” interpreted

to mandate compensation by the Federal Government and

decided there had been not.

“We therefore conclude that neither the

Classification Act nor the Back Pay Act creates a

substantive right in the respondents to back pay for

the period of their claimed wrongful

classifications” United States v. Testan 424 U.S.

392”

In Linmar, where money has been improperly exacted and

the claim against the United States is for money damages

for this improper exaction based on the defendant's

defiance of statutes and regulations, and where Linmar

seeks to introduce evidence improperly excluded

regarding the existence of a contract binding the

defendant to those statutes and regulations, the defendants

thereby being in breach of said contract, the jurisdictional

requirements of the Tucker Act have been fulfilled and

the case of Linmar is clearly not in conflict with the

Supreme Court’s clarification in Testan. Plaintiff

maintains that the Court of Claims has incorrectly

regarded the case of Linmar by interpreting Testan to

mean that a statute or regulation for money damages must

exist before the Court of Claims can assert jurisdiction.

This has the same effect as the government establishing

for itself immunity from compensating citizens for

damage that the government causes unless it first grants

permission for redress of the grievance. This is not only a

constitutional violation, but since the Court of Claims was

established as a forum for the adjudications of petitions

for the redress of grievance, but also an abdication of duty

and office as well. Furthermore, it has been long held that

the Tucker Act explicitly waives all claims of sovereign

immunity for claims filed under that Act, and the Court of

Claims does not have the constitutional or legislative

authority to redefine it's own jurisdiction. The government

cannot on the one hand waive sovereign immunity under

the Tucker Act, an act in essence satisfying a

constitutional mandate, and on the other so narrowly

interpret the Tucker Act as to restore sovereign immunity

against all liability for damaging acts against the citizens

except when specific permission is given. These are

constitutional violations that rise to the level of human-

right abuses, and action by this Court and only this Court

can address this issue.

REASONS FOR GRANTING THE PETITION

The case of Norman Parsons in behalf of Linmar Property

Management Trust v. United States illuminates the

ensuing endangerment of fundamental rights under the

Fifth Amendment of the Constitution of the United States.

In addition, the case of Linmar underscores the

importance of the United States Court of Federal Claims

as an accessible forum for citizens and taxpayers to obtain

one form of a redress of grievances in the face of blatant

and wanton disregard of the laws of the United States by

1]

agents and agencies acting in behalf of the Federal

government. In the pursuit of justice by Linmar Property

Management Trust, it has become necessary to petition

the Supreme Court in order for the Trustees and

Beneficiaries of Linmar Property Management Trust to

protect their Constitutional and Human Rights and to

uphold American jurisprudence and court precedence as it

pertains to the historic practice of the courts granting pro

se litigants wide latitude and not holding pro se litigants to

the same stringent standards as that of lawyers.

Not to be left unconsidered is also the fact that if in this

case Linmar were to be denied due process under the law

without the waiver of rights, then this example would

serve to discourage citizens and taxpayers from the

reporting of income and the filing of a return.

Under the Fifth Amendment of the Constitution of the

United States, “No person shall be ....... deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.” Unless the Court of Claims were to hear

the case of Linmar, Plaintiff would either have to pay the

alleged deficiency before the case could be heard in a

Federal district court, in which case would be the taking

of private property without just compensation or submit

the case to the tax court, a court of special jurisdiction,

where the decision would be final therefore prejudicial to

the rights of the Plaintiff and therefore due process of law

being denied to Plaintiff.

The Tucker Act confers jurisdiction on the Court of

Claims for any claim founded on the Constitution or on

any act of Congress or any regulation of an executive

department, or upon any express or implied contract with

12

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort. “Founded on”

cannot be interpreted to only mean “mandating money :

damages” precisely because such language is not in the

Constitution. If this were the case, there would be no

logical reason to include the term “the Constitution” -— its

presence in the Tucker Act would be meaningless and

~ irrelevant, and furthermore run counter to the

establishment of the Court of Claims as a forum for the

redress of grievance. Indeed, the counter-argument is

more logical: the inclusion of the term “the Constitution,”

being deliberate, expressly prohibits the government from

restricting the jurisdiction of the Court of Claims only to

extra-Constitutional conditions. The Court's main reason

for existence is to adjudicate claims against the

government for any constitutional infraction, the other

terms of the Tucker Act merely conferring additional

jurisdictional terms.

In this light, the Constitutional mandate for such a forum

for the petition of redress of all, not only some, just

grievances is satisfied by the direct language in the

Tucker Act in the phrase “any claim ... founded...”, with

“founded” having its traditional meaning in the English

language. It is for the Court of Claims to decide whether a

claim is just or frivolous and falling within the direct

language of the Tucker Act before accepting jurisdiction,

not decide which “petitions” it will hear and those it will

“not based on its own rewrite of its own jurisdiction.

Linmar, in every aspect of these defining lines, has fallen

within the subject-matter jurisdiction of the Court of

Claims. The lower courts have, in effect, amerded,

modified and nullified the Tucker Act through

misapplication and misinterpretation. Were this practice

of the lower courts to continue, then the wjicial system of

the United States would also be in violation of the

Wks Ei

separations of powers principle enshrined in the United

States Constitution.

If the case of Linmar is to be denied due process of law

without the waiver of rights, then why would any citizen

or taxpayer willingly report income and file a return with

the IRS when any or all allowable deductions can be

unlawfully denied without any explanation, against all

regulatory and established procedures of the United States

and there being no legal forum to find a remedy without

the loss of rights and the probability of financial ruin in

the pursuit of justice?

Under the Constitution of the United States and by the

oath of office sworn to by judges of the judicial system, it

is the responsibility and contractual obligation of the

courts to provide a forum for justice for all taxpayers and

citizens and is incumbent upon the courts to follow

procedure and just precedence. For the courts to deny

Linmar the wide latitude traditionally afforded to pro se

litigants in courts and not to allow evidence to be admitted

violates Linmar's rights of self defense, right to contract,

and right to a solution to conflict through law.

In addition to the oath of office taken by the judges of the

courts of the United States, the Secretary of the Treasury,

having taken an oath of office, is also under contract to

taxpayers and citizens and has bound himself and all

subordinates (including the IRS) to private and public

laws and regulations, including the IRS regulations

regarding sending notices of deficiency and proper

auditing procedures.

Those regulations are part of the guarantee of provision of

constitutional and human rights, which the government

has sworn (internationally) to uphold. As a contractual

14

issue, it belongs in the Court of Claims per the Tucker

Act.

CONCLUSION

As this petition addresses Fifth Amendment and other

constitutional issues, such as due process of law, and

property and contractual rights, and in addition the

fundamental functional responsibilities of a federal court,

this petition for a writ of certiorari should be granted

fom arsons, in

behalf of Linmar

Property Management

Trust.

Respectfully submitted,

Petitioner

535 N. Church Street

Visalia, California,

93291-5004

15

_—_—$_$ $$ $$

APPENDIX A

RECEIVED MAY 25, 2005

In the United States Court of Federal Claims

No.04-1798T

(Filed May 24, 2005)

KAKKAKAKKKEREAAKERAKAKKAKKKKEEESE SE *

NORMAN PARSONS, on behalf of LINMAR

PROPERTY MANAGEMENT TRUST,

Plaintiff,

V.

THE UNITED STATES,

Defendant.

Motion to dismiss for lack of subject matter jurisdiction;

RCFC 12(b)(1); absence of jurisdiction over a tax claim

that seeks relief other than a refund of taxes paid.

Norman Parsons, pro se, Visalia, CA

Benjamin C. King, Jr., Court of Federal Claims Section,

Tax Division, United States Department of Justice,

Washington, D.C., for defendant. With him on the briefs

were Eileen J. O'Connor, Assistant Attorney General,

Mildred L. Seidman, Chief, Court of Federal Claims

Section; and David Gustafson, Assistant Chief.

ORDER

On December 22,2004, plaintiff, Norman Parsons, filed a

complaint in this court on behalf of Linmar Property

Management Trust ("Linmar Trust" or "Trust"),

respecting a notice of deficiency issued by the Internal

Revenue Service ("IRS") that the Linmar Trust owed

income taxes and penalties for the tax year ended

December 31,2000.1/ His complaint alleges that the

1/ Mr. Parsons has brought this suit as trustee of

the Trust, acting pro se. Pleadings filed on such a basis

are held to less stringent standards than those proffered

by attorneys. See Haines v. Kerner, 404 U.S. 519, 520

(1972); Ware v. United States, 57 Fed. Cl. 782, 784

(2003). The court has drawn all reasonable inferences in

Mr. Parsons's favor and has construed his complaint as

broadly as possible to determine whether any of the

allegations state a cause of action cognizable before this

court.

IRS violated 26 U.S.C. § 6501 by issuing a notice

of deficiency to the Linmar Trust without having made an

assessment within three years after the pertinent return

was filed. Complaint at 1, 3 ("Compl.").2/ In addition, the

complaint avers that the notice of deficiency "was

entered" by the IRS in violation of 26 U.S.C. §§ 6201

(a)(1), 6203, and 6211, and 26 C.F.R. § 301.6203-1.

Compl. at 2. :

The remedies Mr. Parsons seeks on behalf of the

Linmar Trust are twofold. First, he demands that the IRS

"cease and desist" its "illegal activity" and follow "law

and procedure" in "any attempt to collect any alleged tax

liability from Linmar." Comp]. at 3. Second, he seeks

$250,000 in damages. Jd.

The government has moved to dismiss Mr.

Parsons's complaint for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) of the Rules of the Court of

Federal Claims. A hearing on the motion was held on

April 19, 2005. For the reasons that follow, the

government's motion is granted.

BACKGROUND

On September 23,2004, the IRS sent notice of a

deficiency to the trustee of the Linmar Trust pursuant to

26 U.S.C. § 6212(a). The notice stated that the Linmar

Trust owed additional taxes in the amount of $140,935.33

for the 2000 tax year. Compl., Ex. A.3/ In addition, the

IRS imposed on the Linmar Trust an accuracy-related

penalty pursuant to 26 U.S.C. § 6662(a) in the amount of

$28,187.07. Id. As of the date of the hearing in this case,

the Trust had not paid the deficiency. Hr'g Tr. at 22. The

record does not indicate whether the IRS had made an

assessment by that date. /d. at 24.

ANALYSIS

The Tucker Act, 28 U.S.C. § 1491, supplies the

primary jurisdictional predicate for cases brought before

this court. Under that statute, a complaint may be

maintained in this court if, among other things, the claim

2/Mr. Parsons represents that he is now the

trustee of the Linmar Trust and that he had that position

at the time the notice of deficiency was issued. Hr'g Tr. at

6. For present purposes, the court assumes without

deciding that Mr.Parsons is authorized to represent the

Linmar Trust in this case. Mr. Parsons was not the trustee

at the time the tax return for the Trust was filed for the

2000 tax year. Compl., Ex. B; Hr'g Tr. at 4.

3/The notice of deficiency indicated that the IRS

had disallowed deductions the Linmar Trust had made for

income distribution, rental expenses, rental depreciation,

capital gain on sale of land, and additional income from

deposits. Compl., Ex. A (Form 4549-A). It is not

determinable from the record before the court why these

deductions were disallowed.

Income taxes were imposed on the Linmar Trust

at the rates specified in 26 U.S.C. § 1 (e), which rates are

in effect equivalent to those for individuals.

resented in the complaint is "founded either upon the

onstitution, 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 not sounding in tort.” 28

U.S.C. § 1491(a)(1). The Tucker Act by itself, however,

does not — a substantive right of recovery against

the United States. Rather, save for limited exceptions not

implicated here, the statute confers jurisdiction only

where the plaintiff identifies an accompanying substantive

claim that "can fairly be interpreted as mandating

compensation by the Federal Government for the damages

sustained.” United States v. Mitchell, 463 U.S. 206, 217

(1983) (quoting United States v. Testan, 424 U.S. 392,

400 (1976)). See also United States v. White Mountain

Apache Tribe, 537 US. 465, 473 (2003) ("a fair inference

will do"). Mr. Parsons has not adequately alleged the

existence of an express or implied contract nor has he

identified a money-mandating constitutional provision,

statute, or regulation that has been violated.

More specifically, Mr. Parsons does not make a

claim for a tax refund, which, with very limited

exceptions, is the only type of tax dispute over which this

court has jurisdiction. See Shore v. United States, 9 F.3d

1524, 1526 (Fed. Cir. 1993) (full-payment rule for tax

refund claim does not require prepayment of interest and

penalties when taxpayer only disputes tax assessment);

Tonasket v. United States, 218 Ct. Cl. 709, 711-12 (1978)

(full-payment rule applies to tax refund suits in Court of

Claims under 28 U.S.C. § 1491); see also Flora v. United

States, 362 US. 145, 177 (1960) (same rule for tax claims

brought before district courts under 28 U.S.C.§1346

(a)(1)).4/ Mr. Parsons asks "that the Court stop the illegal

activities of the above mentioned Internal Revenue

Service agents and order the said agents to follow

procedure and obey the law in their dealings with [the

Linmar Trust]." Plaintiff's Response to Defendant's

Notice to the Court at 2 ("PI.'s Resp.") (emphasis

omitted); accord Compl. at 3. Consequently, Mr. Parsons

primarily seeks declaratory or injunctive relief. The short

answer to this claim is that "[t]he Tucker Act does not

provide independent jurisdiction over such claims for

- equitable relief." Brown v. United States, 105 F.3d 621,

624 (Fed. Cir. 1997) (citing United States v. King, 395

US. 1,2-3 (1969)).5/

4/The exceptions to this overarching jurisdictional

predicate rarely are invoked. See, e.g., 28 US.C. § 1507

(grant of jurisdiction to hear declaratory judgment

actions under 26 U.S.C.§ 7428, which concerns

classification of entities pursuant to 26 U.S.C. §

501(c)(3) and related provisions of the Internal Revenue

Code); 28 U.S.C. § 1508 (grant of jurisdiction over

certain partnership proceedings under 26 U.S.C. §} 6226

and 6228(a)); see also Brown & Williamson, Ltd. v.

United States, 688 F.2d 747 (1982) (jurisdiction to allow

interest on a tax refund pursuant to tax treaty that created

20

right to retroactive refund of taxes).

5/In construing this portion of the complaint in the

light most favorable to plaintiff, the court does not

interpret it to be "for the purpose of restraining the

assessment or collection of any tax." 26 D.S.C. § 7421 (a)

(the Anti-Injunction Act).

Next, Mr. Parsons alleges that the notice of

deficiency "was fraudulently manufactured" by the IRS.

Compl. at 2. This claim is grounded upon a tort, a cause

of action over which this court lacks jurisdiction. Brown,

105 F.3d at 623 (citing L 'Enfant Plaza Props., Inc. v.

United States, 645 F.2d 886, 892 (CL Cl. 1981)).

Similarly, Mr. Parsons avers that he "has made a claim for

damages against the United States as the result of an

illegally imposed tax debt upon [the] Linmar [Trust] by

agents of the IRS, who violated the laws and codes of the

United States and failed to follow administrative

procedure.” Pl's Sur-reply at 2; see also Compl. at 3.

Federal district courts possess exclusive jurisdiction over

such claims. See Ledford v. United States, 297 F.3d 1378,

1382 (Fed. Cir. 2002) (quoting 26 US.C. § 7433(a))

Mr. Parsons argues that the Tucker Act provides a

further basis for this court's jurisdiction over his

complaint because "the liability of taxation is founded

upon adhesion contracts held by the [United States]

against (the Linmar Trust]." PI.'s Sur-reply at 3; see also

Hr'g Tr. at 20, 22. Construing this allegation as far as

possible in Mr. Parsons's favor, the court interprets it as

invoking the reference in the Tucker Act to congressional

acts and regulations. See 28 US.C. § 1491(a)(1).

However, the court's jurisdiction on that basis is limited to

21

laws requiring the payment of money damages as

compensation for the alleged violation. Brown, 105 F.3d

at 623 (citing Mitchell, 463 U.S. at 218; Murray v. United

States, 817 F.2d 1580, 1582-83 (Fed. Cir. 1987)). The

statutory provisions and regulation cited in Mr. Parsons'

complaint do not mandate the payment of money for their

violation.

Mr. Parsons asserts that if this court lacks

jurisdiction over his complaint, the Linmar Trust would

have no legal recourse to challenge the deficiency. PI.'s

Resp. at 2-4. He is mistaken. Even though the ninety-day

period after the issuance of the notice of deficiency for

filing a petition with the Tax Court has expired, Mr.

Parsons, on behalf of the Trust, can still pay the

deficiency and penalty, submit a refund claim to the IRS,

and then file suit in this court if the IRS either denies that

claim or fails to respond to it within six months. See 26

U.S.C.§§ 651 I (a), 6532(a)(1), 7422(a); United States v.

Williams, 514 U.S. 527, 532-36 (1995).6/

6/See 26 US.C. § 6511(a) (prescribing the period

within which an administrative claim for refund must be

filed as "3 years from the time the return was filed or 2

years from the time the tax was paid, whichever of such

periods expires the later"). The statute prescribing time

limitations on suits for refund, 26 U.S.C. § 6532,

provides:

/ ~ (1) General rule. - No suit or proceeding

under section 7422(a) forthe recovery of

any internal revenue tax, penalty, or other

sum, shall bebegun before the expiration of

6 months from the date of filing the claim

required under such section unless the

Secretary renders a decision thereon

22

within that time, nor after the expiration of

2 years from the date of mailing by

certified mail or registered mail by the

Secretary to the taxpayer of a notice of the

disallowance of the part of the claim to

which the suit or proceeding relates.

26 US.C. § 6532(a)(1).

CONCLUSION

For the reasons set out above, the government's

motion to dismiss is GRANTED, and this case shall be

dismissed for lack of subject matter jurisdiction. The clerk

shall enter judgment dismissing the complaint. No costs.

It is so ORDERED.

APPENDIX B

United States Court of Appeals for the Federal Circuit

05-5168

. NORMAN PARSONS, on behalf of

LINMAR PROPERTY MANAGEMENT TRUST,

~ Plaintiff-Appellant,

v.

UNITED STATES, .

Defendant-Appellee.

DECIDED: March 10, 2006

Before, RADER, SCHALL, and LINN, Circuit Judge.

_RADER, Circuit Judge.

The United States Court of Federal Claims entered a

judgment dismissing this case for lack of jurisdiction.

Although Norman Parsons did not timely file a notice of

appeal on the judgment; this court considers his notice a

timely filed notice of appeal on the denial of his motion

for reconsideration. Because Mr. Parsons did not show

any grounds for reconsidering the Court of Federal

Claims' judgment, this court affirms.

On December 22, 2004, Mr. Parsons filed a

complaint in the Court of Federal Claims on behalf of

Linmar Property Management Trust (Linmar) because the

Internal Revenue Service (IRS) sought income taxes and

penalties for the tax year ended December 31, 2000. Mr.

Parsons alleged that the IRS violated 26 U.S.C. § 6501, by

issuing a notice of deficiency to Linmar without making

an assessment within three years. Therefore, Mr. Parsons

contended that the notice of deficiency "was entered" by

the IRS in violation of 26U.S.C. §§ 6201(a)(1), 6203, and

6211, and 26 C.F.R.§ 301.6203-1. Linmar has neither paid

the tax at issue, nor filed a timely claim for refund with

the IRS.

In his suit Mr. Parsons demands the IRS "cease

and, desist" its "illegal activity" and follow "law and

procedure” in "any attempt to collect any alleged tax

liability from Linmar." Mr. Parsons also seeks $250,000

in damages. After a hearing on the Government's motion

to dismiss on jurisdictional grounds, the Court of Federal

Claims entered a judgment dismissing the suit for lack of

subject matter jurisdiction on May 24, 2005. Parsons ex

rel. Linmar Property Mgmt. Trust v. United States, 65

Fed. CI. 638(2005). The Court of Federal Claims held that

it had no jurisdiction under the Tucker Act, 28 U.S.C. §

1491, and that it had no jurisdiction for a claim grounded

upon a tort. Parsons, 65 Fed. CI. at 639-41. It also pointed

out that the only tax-related dispute over which the court

has limited jurisdiction was for a tax refund, but that Mr.

Parsons did not make a claim for a tax refund. Id.

On July 13, 2005, after the ten-day deadline

expired, Mr. Parsons filed a United States Court of

Federal Claims Rule 59 motion for reconsideration. On

July 26, 2005,the court denied the motion for

reconsideration, because Mr. Parsons did not present any

permissible ground on which the court should reconsider

its judgment. On September 22, 2005, Mr. Parsons filed a

notice of appeal to this court. Because a motion to

25

reconsider does not toll the deadline to file a notice of

appeal on the judgment, he did not timely file a notice of

appeal. The sixty-day deadline to appeal the

judgment expired on September 12, 2005. F.R.A.P.

4(a)(4). However, because Mr. Parsons filed a notice of

appeal within sixty-days of the denial of his motion for

reconsideration, this court has jurisdiction to consider his

appeal of the Court of Federal Claims' denial of his

motion to reconsider.

This court reviews the Court of Federal Claims' denial of

Mr. Parsons’ motion for an abuse of discretion. Mass. Bay

Transp. Auth. v. United States, 254 F.3d 1367, 1368(Fed.

Cir. 2001) (citing Aiinomoto Co. v. Archer-Daniels-

Midland Co., 228 F.3d 1338,1350 (Fed. Cir. 2000). It is

well recognized that "[a] motion for reconsideration is

addressed to the discretion of the trial court.” Triax Co. v.

United States, 20 CI. Ct. 507, 509 (1990) (citing Eyre V.

McDonouoh Power Equip., 755 F.2d 416, 420 (Sth Cir.

. 1985)(construing FRCP 59)); see Yuba Natural

Resources. Inc. v. United States, 904 F.2d 1577,1583

(Fed. Cir. 1990).

Rule 59 of the United States Court of Federal Claims

permits reconsideration for one of three reasons: (1) that

an intervening change in the controlling law has occurred;

(2) that previously unavailable evidence is now available;

or (3) that the motion is necessary to prevent manifest

injustice. Henderson County Drainage Dist. No.3. V.

United States, 55 Fed. CI. 334 (2003); see also

Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406,

1419 (D.Md. 1991). Post-opinion motions to reconsider

are not favored, especially "where a party has had a fair

opportunity to . . . litigate the point in issue." Prestex. Inc.

26

V. United States, 4 CI. Ct. 317, 318 (1984), aff'd, 746

F.2d 1489(Fed. Cir. 1984) (citing Gen. Elec. Co. v. United

States, 416 F.2d 1320, 1321 (Ct. CI. 1969)). Generally, a

motion under Rule 59 must be based upon manifest error

of law, or mistake of fact, and is not intended to give an

unhappy litigant an additional chance to sway the court.”

Weaver-Bailey Contractors. Inc. v. United States, 20 CI.

Ct. 158(1990).

Mr. Parsons has not shown that an intervening change in

the controlling law has occurred; that previously

unavailable evidence is now available; or that the motion

is necessary to prevent manifest injustice. Mr. Parsons

presented a regulation that was available when the

Government filed its motion to dismiss. Newly discovered

evidence is only such evidence as could not have been

discovered by exercise 'of due diligence prior to rendition

of decision. Girault v. United States, 135 F .Supp. 521,

524 (Ct. CI.1955). Mr. Parsons also argued that the Court

of Federal Claims did not correctly and completely

address points and issues he raised. "Litigants should not,

on a motion for reconsideration, be permitted. to attempt

an extensive retrial based on evidence which was

manifestly available at [the] time of the hearing.” Gelco

Builders & Buriav Constr. Corp. v. United States, 369

F.2d 992, 1000 n. 7 (1966). This court finds no manifest

error of law or mistake of fact, or that any manifest

injustice required the Court of Federal Claims to

reconsider its decision to dismiss this case for lack of

jurisdiction.

This court, therefore, affirms.

05-5168

APPENDIX C

IN THE UNITED STATES COURT OF FEDERAL

CLAIMS

No. 04-1798 T

(Filed: July 26, 2005)

Defendant.

NORMAN PARSONS, on behalf of

LINMAR PROPERTY MANAGEMENT

TRUST,

Plaintiff,

V.

THE UNITED STATES,

ORDER

The court acknowledges plaintiffs Motion for

Reconsideration. That motion was filed July 13, 2005 by

leave of the court. The motion was received by the clerk

on July 11, 2005 but was not filed immediately because

(1) the submission bore an incorrect docket number, (2)

the copies required by Rule 5.3(d) of the Rules of the

Court of Federal Claims ("RCFC") were not provided,

and (3) the submission was untimely if it were intended to

constitute a motion pursuant to RCFC 59. In causing the

motion to be filed, the court in effect waived the errors

associated with the use of an incorrect docket number and

the lack of copies. The court did not, however, excuse

compliance with the time limitation of RCFC 59(e).

The motion seeks reconsideration of a decision rendered

by the court on May 24,2005,reported as Parsons ex rel.

Linmar Property Management Trust v. United States, _

Fed. Cl. , 2005 WL 1230631 (May 24, 2005). Judgment

was entered on the same day the decision was issued, i.e.,

May 24,2005.

The motion for reconsideration is hereby DENIED. It was

filed past the time for filing motions for reconsideration

under RCFC 59(e), and the motion has no merit.

It is so ORDERED.

RECEIVED

AUG 06, 2005

NORMAN PARSONS

535 N. Church Street

Visalia, CA 93291-5004

04-1798