Case: 24-1242    Document: 37    Page: 1   Filed: 11/12/2024




        NOTE: This disposition is nonprecedential.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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 2                                             BENNETT v. US




     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 

(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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 4                                             BENNETT v. US




 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 

(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.,
 

, 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., 

 (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., 

 (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, 

, at *1
 (4th Cir. Mar. 31, 2022); Bennett v. Bank of Am., N.A., 

, 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., 

 (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., 

, 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 

(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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 6                                              BENNETT v. US




 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 

(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 

(b)(6)(A)(i) by failing to provide
            restitution to Plaintiffs; (2) OCC engaged
            in a “continuing violation” of the Consent
            Order and 

(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, 

 (Fed. Cir. 2005)).
     After the Court of Federal Claims denied the Bennetts’
 motion for reconsideration, they timely appealed. We have
 jurisdiction pursuant to 

(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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 8                                              BENNETT v. US




 not sounding in tort.” 

 § 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, 

 (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, 

 (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, 

 (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, 

 (1976) (quoting Haines v. Kerner, 

, 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., 

 (Fed. Cir. 1987); see also
 Roman v. United States, 

 (Fed. Cir.
 2023).
                              III
                               A
     The Bennetts contend that 

(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, 

 (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.          

(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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 10                                            BENNETT v. US




 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, 

 (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, 

 (“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, 

 (Fed. Cir. 2020), there is no
 indication that the Bennetts have “paid money over to the
 Government,” 

, or that the statute provides “a
 cause of action with a monetary remedy,” Cyprus Amax
 Coal Co. v. United States, 

 (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, 

 (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. 

 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 

(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, 

 (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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 12                                             BENNETT v. US




     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, 

 (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.”).




 

, 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., 

 (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, 

 (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.