Kemper v. United States ( 2017 )

ORIGINAL ~
3Jn tbe Wniteb ~tates ~ourt of jfeberal ~Iaims
No. 17-768C
(Filed: August 2, 2017)
{NOT TO BE PUBLISHED)
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)
KEVIN KEMPER, ) FILED
)
Plaintiff, ) AUG - 2 2017
) U.S. COURT OF
v. ) FEDERAL CLAIMS
)
UNITED ST ATES, )
)
Defendant. )
)
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Kevin Kemper, prose, Phoenix, Arizona.
Richard Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the brief
were Chad A. Readler, 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, Kevin Kemper, brings suit to allege a breach of contract and fraud by the United
States ("the government"), acting through the United States Department of Veterans Affairs
("VA"). Mr. Kemper alleges that the VA agreed to assist him in finding a volunteer employment
position and to compensate him for such volunteer work, but failed to fulfill those obligations.
He consequently seeks damages for the VA's alleged breach of contract and fraudulent conduct.
Pending before the court is the government's motion to dismiss Mr. Kemper's complaint
pursuant to Rule 12(b)(l) of the Rules of the Comi of Federal Claims ("RCFC"). For the reasons
stated, the government's motion is granted.
BACKGROUND
Mr. Kemper filed suit in this comi on May 25, 2017. See generally Compl. According to
Mr. Kemper, he contacted the Vocational Rehabilitation and Employment office within the VA
7017 1450 DODD 1346 3042
after learning through the VA website that the office could provide assistance in his search for
employment. Comp!. at 4-5. He then allegedly agreed to a contract with a counselor in that
office, whereby the counselor would help Mr. Kemper find a three-month volunteer position and
compensate Mr. Kemper for that volunteer work. Comp!. at 6. Mr. Kemper alleges that he
thereafter declined a volunteer position that was "not viable," and was subsequently removed
from the vocational rehabilitation program. Comp!. at 5-6. The VA notified Mr. Kemper of his
removal from the program on September 8, 2015, and also informed him of his right to request
an administrative review of that decision. Def. 's Mot. to Dismiss, App. ("Def.'s App.") at A9 to
Al 0 (Letter from John R. Arnett, Rehabilitation Counselor, VA to Kevin Kemper (Sept. 8,
2015)), ECF No. 7.
Mr. Kemper consequently claims that the VA breached its contractual obligations to find
him a volunteer position and provide him with three months' payment. Comp!. at 6-7. He
further asserts that the VA fraudulently stated that it "did none of the services included on [its]
website." Comp!. at 6. He requests $1,900 in compensatory damages and $10,000 in punitive
damages. Comp!. at 7. 1
ST AND ARD FOR DECISION
As plaintiff, Mr. Kemper has the burden of establishing jurisdiction. See Reynolds v.
Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The leniency afforded to a
pro se litigant with respect to formalities does not relieve such a litigant from satisfying
jurisdictional requirements. Kelley v. Secretary, United States Dep't ofLabor, 812 F.2d 1378,
1380 (Fed. Cir. 1987). Under the Tucker Act, this court has 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 not sounding in tort." 28 U.S.C. § 1491(a)(l).
The Tucker Act waives sovereign immunity and allows a plaintiff to sue the United States for
money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but it does not provide a
plaintiff with any substantive rights, United States v. Testan, 424 U.S. 392, 398 (1976). 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
bane in relevant part) (citing Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).
1
Mr. Kemper also filed suit in the United States District Court for the District of Arizona
on February 6, 2017. Comp!., Kemper v. United States Dep 't of Vocational Rehab., No. 17-375
(D. Ariz. Feb. 6, 2017). In an amended complaint in that court, filed on March 1, 2017, Mr.
Kemper raised allegations against the VA but did not refer to or address his alleged interactions
with the Vocational Rehabilitation and Employment office. See generally First Am. Comp!.,
Kemper v. United States Dep 't of Vocational Rehab., No. 17-375 (D. Ariz. Mar. 1, 2017).
Acting pursuant to 28 U.S.C. § 1915(e)(2), the district court dismissed his amended complaint
after finding that it did not state a claim upon which relief could be granted or establish a basis
for subject matter jurisdiction. Order, Kemper v. United States Dep 't of Vocational Rehab., No.
17-375 (D. Ariz. Mar. 9, 2017). The United States Court of Appeals for the Ninth Circuit
dismissed Mr. Kemper's appeal of the dismissal as frivolous. Order, Kemper v. United States
Dep 't of Vocational Rehab., No. 17-15523 (9th Cir. June 13, 2017).
2
ANALYSIS
Although Mr. Kemper characterizes his claim against the VA as a breach of contract, his
claim is instead based upon his status as a veteran and the benefits allegedly owed to him by the
VA. See Pines Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379, 1380 (Fed. Cir.
2006) ("Regardless of a party's characterization of its claim, '[the court] look[s] to the true
nature of the action in dete1mining the existence or not of jurisdiction.'") (quoting Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)); Estate of Smallwood v. United States, 130 Fed.
Cl. 395, 399 (2017) (noting that plaintiffs alleged breach of contract claim against the VA was
instead a claim for allegedly wrongful denial of benefits), appeal filed, No. 17-1915 (Fed. Cir.).
Such allegations regarding the denial of benefits by the VA fall outside the jurisdiction of this
court. See, e.g., Prestidge v. United States, 611 Fed. Appx. 979, 982-83 (Fed. Cir. 2015); Kalick
v. United States, 109 Fed. Cl. 551, 556-57 (2013), ajf'd, 541 Fed. Appx. 1000 (Fed. Cir. 2013).
Congress has set fmth a "comprehensive statutory scheme spelling out the administrative and
judicial processes that must be followed in order to obtain review of decisions by the [VA]."
Jackson v. United States, 80 Fed. Cl. 560, 567 (2008). A provision of the Department of
Veterans Affairs Codification Act, Pub. L. No. 102-83, § 2(a), 105 Stat. 378, 388 (1991)
(codified at 38 U.S.C. § 511), states that "[t]he Secretary [of the VA] shall decide all questions of
law and fact necessary to a decision by the Secretary under a law that affects the provision of
benefits by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C. §
51 l(a). If an individual receives an adverse decision from the Secretary, the Veterans' Judicial
Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988) (codified at 38 U.S.C. §§ 7251-99),
establishes the statutory route that such individual must follow to seek review of the decision.
That route includes appeals to the Board of Veterans Appeals, 38 U.S.C. § 7104, the Court of
Appeals for Veterans Claims, 38 U.S.C. § 7252(a), and the Federal Circuit, 38 U.S.C. § 7292(c).
The Court of Federal Claims has no place in this statutory regime. The court therefore lacks
jurisdiction over Mr. Kemper's claim that the VA allegedly failed to provide him with particular
benefits in his search for volunteer employment.
Additionally, the court does not have jurisdiction over Mr. Kemper's fraud claim because
such an allegation is based in tort. See Rick's Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008). 2
Accordingly, the court lacks jurisdiction over Mr. Kemper's claims. Dismissal is
appropriate pursuant to 28 U.S.C. § 1915(e), which provides that "the court shall dismiss the
case at any time" upon determining that the action, among other things, "fails to state a claim on
which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii); see also Taylor v. United States,
568 Fed. Appx. 890, 891 (Fed. Cir. 2014) (explaining that a court "is required to dismiss a
frivolous complaint from a litigant who is proceeding informa pauperis") (citing 28 U.S.C. §
1915(e)(2)(B)); Grant v. United States, 129 Fed. Cl. 790, 792 (2017) (noting that the court must
dismiss an action when the conditions of28 U.S.C. § 1915(e) are satisfied, "[r]egardless of
whether the filing fee [was] paid or waived") (citations omitted).
2
Mr. Kemper also requests punitive damages, Comp!. at 7, but the court does not have
jurisdiction to grant such a request, see Bussie v. United States, 96 Fed. Cl. 89, 96 (2011)
(citations omitted), ajf'd, 443 Fed. Appx. 542 (Fed. Cir. 2011).
3
CONCLUSION
For the reasons stated, the government's motion to dismiss for lack of subject matter
jurisdiction is GRANTED. The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED.
Charles F. Lettow
Judge
4