Case: 20-1631    Document: 25    Page: 1   Filed: 09/04/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  ROBERT HITSMAN,
                   Plaintiff-Appellant

                            v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2020-1631
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00562-LKG, Judge Lydia Kay Griggsby.
                  ______________________

                Decided: September 4, 2020
                  ______________________

    ROBERT HITSMAN, Dent, MN, pro se.

     IVAN CLAY DALE, Tax Division, United States Depart-
 ment of Justice, Washington, DC, for defendant-appellee.
 Also represented by JACOB EARL CHRISTENSEN, RICHARD E.
 ZUCKERMAN.
                  ______________________

   Before PROST, Chief Judge, MOORE and STOLL, Circuit
                         Judges.
Case: 20-1631     Document: 25     Page: 2    Filed: 09/04/2020




 2                                  HITSMAN   v. UNITED STATES



 PER CURIAM.
     Robert Hitsman appeals from the final decision of the
 United States Court of Federal Claims dismissing his com-
 plaint for lack of subject-matter jurisdiction. Specifically,
 Mr. Hitsman appears to challenge the trial court’s deter-
 mination that it lacked subject-matter jurisdiction to con-
 sider his claim for unlawful seizure of assets. Because the
 Court of Federal Claims lacks subject-matter jurisdiction
 over Mr. Hitsman’s claim, we affirm.
                        BACKGROUND
     On June 4, 2018, Mr. Hitsman filed a petition in the
 United States Tax Court, disputing that he received cer-
 tain notices of deficiency and notices of determination con-
 cerning collection actions from the Internal Revenue
 Service (IRS) for the years 1979 to 2017. On October 18,
 2018, the Tax Court dismissed Mr. Hitsman’s petition for
 lack of jurisdiction because the IRS had not issued a notice
 of deficiency, notice of determination concerning a collec-
 tion action, or any other notice of determination to Mr.
 Hitsman for the years 1979 through 2017.
     On April 8, 2019, Mr. Hitsman filed a complaint in the
 Court of Federal Claims alleging that the Government “in-
 jured Plaintiff in the amount of $96,967.10 by collecting as-
 sets without jurisdiction” from 1979 through 2018.
 S.A. 11. 1 The Government moved to dismiss Mr. Hits-
 man’s claim, arguing that Mr. Hitsman had confused the
 Tax Court’s jurisdiction with the Government’s ability to
 carry out levies to fulfill his tax liabilities. To the extent
 that Mr. Hitsman’s claim could be construed as a tax re-
 fund claim, the Government argued that the Court of Fed-
 eral Claims lacked jurisdiction because for the tax years at
 issue, Mr. Hitsman had not established that he (1) filed a


     1  “S.A.” refers to the Supplemental Appendix filed by
 Defendant-Appellee.
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 HITSMAN   v. UNITED STATES                                   3



 proper claim for a refund with the IRS; and (2) fully paid
 the amount for which he sought a refund. To the extent
 that the trial court construed Mr. Hitsman’s claim as seek-
 ing “damages” resulting from an unauthorized collection
 action or for failure to release a lien, the Government main-
 tained that jurisdiction over such claims lies exclusively
 with the federal district courts.
      The trial court granted the Government’s motion, hold-
 ing that it lacked subject-matter jurisdiction over Mr. Hits-
 man’s claim, whether construed as a claim for wrongful
 levy or improper imposition of a lien, a due process claim,
 or a tax refund claim. The trial court explained that it
 lacked jurisdiction over claims “for damages flowing from
 the allegedly unlawful collection activities of the IRS” and
 “claims challenging the imposition of tax liens” because
 such claims must be brought before a district court. Hits-
 man v. United States, No. 19-562T, 

, at *4
 (Fed. Cl. Jan. 28, 2020). Similarly, the trial court ex-
 plained that it lacked jurisdiction over due process claims
 because the Due Process clauses of the Fifth and Four-
 teenth Amendments are not considered to be money-man-
 dating.

that Mr. Hitsman asserted a tax
 refund claim, the Court of Federal Claims concluded that
 it “must dismiss” this claim because Mr. Hitsman had not
 shown that he “(1) timely filed a refund claim with the IRS
 and (2) fully paid his tax liability before commencing” suit.

(first citing 26 U.S.C. § 7422; and then citing Shore
 v. United States, 

, 1526–27 (Fed. Cir. 1993)).
     Mr. Hitsman appeals. We have jurisdiction pursuant
 to 28 U.S.C. § 1295(a)(3).
                          DISCUSSION
     On appeal, Mr. Hitsman argues that the Court of Fed-
 eral Claims failed to appreciate that the IRS violated the
 Fourth Amendment when it seized his assets without ju-
 risdiction. Appellant’s Br. 2. In his reply brief, Mr. Hits-
 man also asserts that the IRS violated his due process
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 4                                  HITSMAN   v. UNITED STATES



 rights when it seized his assets. Reply Br. 2. Because we
 agree that Mr. Hitsman has not established that the trial
 court had jurisdiction over his claims, we affirm the trial
 court’s decision dismissing his complaint.
                               I
     We review the trial court’s dismissal for lack of subject-
 matter jurisdiction de novo. Petro-Hunt, L.L.C. v. United
 States, 

, 1378 (Fed. Cir. 2017) (citing Fidelity
 & Guar. Ins. Underwriters, Inc. v. United States, 

, 1087 (Fed. Cir. 2015)). “The Court of Federal Claims
 is a court of limited jurisdiction.” Marcum LLP v. United
 States, 

, 1382 (Fed. Cir. 2014) (citing Terran
 v. Sec’y of Health & Human Servs., 

, 1309
 (Fed. Cir. 1999)). The Tucker Act is the primary statute
 conferring jurisdiction on the Court of Federal Claims.
 28 U.S.C. § 1491; Taylor v. United States, 

,
 1359 (Fed. Cir. 2002). It provides that the Court of Federal
 Claims shall have jurisdiction over particular cases limited
 to:
     [A]ny claim against the United States founded ei-
     ther 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.
 28 U.S.C. § 1491(a)(1).
     “To be cognizable under the Tucker Act, the claim must
 be for money damages against the United States, and the
 substantive law must be money-mandating.”              Smith
 v. United States, 

, 1116 (Fed. Cir. 2013) (cit-
 ing Todd v. United States, 

, 1094 (Fed. Cir.
 2004)). The Tucker Act itself does not create a substantive
 right enforceable against the United States.

v. United States, 

, 1351 (Fed. Cir.
 2007)). To come within jurisdictional reach, “a plaintiff
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 HITSMAN   v. UNITED STATES                                 5



 must identify a separate source of substantive law that cre-
 ates the right to money damages.” Fisher v. United States,
 

, 1172 (Fed. Cir. 2005) (first citing United
 States v. Mitchell, 

, 216 (1983); and then citing
 United States v. Testan, 

, 398 (1976)).
                              II
     On appeal to this court, Mr. Hitsman first appears to
 assert that the Government lacked jurisdiction to seize his
 assets to collect taxes because, in his 2018 Tax Court case
 where he challenged receipt of notices of deficiency and de-
 termination for the years 1979 through 2017, the IRS
 moved to dismiss the case for lack of jurisdiction. See Ap-
 pellant’s Br. 2; Reply Br. 2. Contrary to Mr. Hitsman’s ar-
 gument, that the IRS moved to dismiss Mr. Hitsman’s 2018
 Tax Court petition for lack of jurisdiction does not mean
 that the IRS failed to satisfy the requirements necessary to
 collect his unpaid income tax liabilities in the first in-
 stance.
     Mr. Hitsman also argues that his assets were seized in
 violation of his Fourth Amendment rights. As the Govern-
 ment points out, Mr. Hitsman raises his Fourth Amend-
 ment argument for the first time in his opening brief on
 appeal. Ordinarily, we “do[] not give consideration to is-
 sues not raised below.” Hormel v. Helvering, 

,
 556 (1941). Even if we were to consider this argument, the
 Court of Federal Claims lacks jurisdiction over any such
 claim because the Fourth Amendment does not mandate
 the payment of money. See Brown v. United States,
 

, 623–24 (Fed. Cir. 1997) (“Because monetary
 damages are not available for a Fourth Amendment viola-
 tion, the Court of Federal Claims does not have jurisdiction
 over [] such a violation.” (first citing 

; and then citing Murray v. United States, 

, 1582–83 (Fed. Cir. 1987))).
     Mr. Hitsman further argues, for the first time in his re-
 ply brief, that the IRS violated his due process rights when
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 6                                  HITSMAN   v. UNITED STATES



 it seized his assets. Mr. Hitsman has waived this argu-
 ment because he failed to raise it in his opening brief.
 SmithKline Beecham Corp. v. Apotex Corp., 

,
 1319 (Fed. Cir. 2006) (“Our law is well established that ar-
 guments not raised in the opening brief are waived.” (citing
 Cross Med. Prods., Inc. v. Medtronic Somafor Danek, Inc.,
 

, 1320–21 n.3 (Fed. Cir. 2005))). In any
 event, the trial court does not have jurisdiction over
 Mr. Hitsman’s due process claim. 

.
 “The law is well settled that the Due Process clauses of both
 the Fifth and Fourteenth Amendments do not mandate the
 payment of money and thus do not provide a cause of action
 under the Tucker Act.”

United States,
 

, 1028 (Fed. Cir. 1995)); see also Collins
 v. United States, 

, 288 (Fed. Cir. 1995) (“[T]he
 due process clause does not obligate the government to pay
 money damages.” (collecting cases)).
                        CONCLUSION
      We have considered Mr. Hitsman’s remaining argu-
 ments and do not find them persuasive. Accordingly, we
 affirm the trial court’s dismissal of Mr. Hitsman’s com-
 plaint.
                        AFFIRMED
                            COSTS
     No costs.