Ayres v. United States

67 Fed. Cl. 776, 2005 U.S. Claims LEXIS 259, 2005 WL 2100903
United States Court of Federal Claims·Decided August 31, 2005·No. No. 04-987C·Published·Cited by 5 cases

Opinion

[778]*778MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S JULY 14, 2005 MOTION TO RECONSIDER, PLAINTIFF’S JULY 25, 2005 MOTION TO AMEND, AND PLAINTIFF’S AUGUST 5, 2005 LETTER

BRADEN, Judge.

On June 29, 2005, the court issued a Memorandum Opinion and Order resolving pro se Plaintiffs August 23, 2004 Motion for Summary Judgment and the United States’ (the “Government”) October 4, 2004 Motion to Dismiss and Cross-Motion for Summary Judgment. See Ayres v. United States, 66 Fed.Cl. 551 (2005). On July 14, 2005, Plaintiff filed a Motion to Reconsider (“Mot. To Recon.”). On July 25, 2005, Plaintiff filed a Motion to Amend the June 10, 2004 Complaint. On August 5, 2005, Plaintiff sent a letter to Chambers with a cassette tape. On August 9, 2005, the Government filed an Opposition to Plaintiffs July 25, 2005 Motion to Amend. On August 17, 2005, Plaintiff filed a Response.

A. The Court’s Disposition Of Plaintiffs July 14, 2005 Motion to Reconsider.

On July 14, 2005, Plaintiff filed a Motion to Reconsider the June 29, 2005 Memorandum Opinion and Order asserting that the court: (1) mischaracterized Plaintiffs claims as tort claims for compensatory damages, because the June 10, 2004 Complaint requested penalties to be assessed against the Government for violations of the Residential Lead Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851 et seq. (“RLBPHRA”) and the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. (“TSCA”); (2) erred in not transferring Plaintiffs claims to the United States District Court for the District of Maryland, because Plaintiff exhausted administrative remedies prior to filing the June 10, 2004 Complaint in the United States Court of Federal Claims; (3) erred in not transferring Plaintiffs “claim [to the United States District Court for the District of Maryland that] stems irom the acts of Michaelson, Connor & Boul [(“Michaelson”) as] agents of the [G]overnment[.]” See Mot. To Recon. at 1-3.

1. The Residential Lead-Based Paint Reduction Act of 1992 And The Toxic Substances Control Act Do Not Impose A Duty On The Government To Pay Damages For Violations Thereof.

Plaintiff seeks reconsideration of the court’s dismissal of the claims for alleged violations of the RLBPHRA and the TSCA. See Mot. To Recon. at 1. As the court previously held, Plaintiff, as the non-moving party, bears the burden of establishing jurisdiction by a preponderance of the evidence. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“jurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir.2004) (“Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit.”).

Neither the TSCA nor the RLBPHRA award damages for a violation of any Section thereof. See Ayres, 66 Fed.Cl. at 561-63. Nevertheless, Plaintiff argued on reconsideration that penalties should be assessed against the Government. See Mot. To Recon. at 1-2. The TSCA does allow for the imposition of civil penalties against the United States, however, as a matter of law, a civil penalty is a “fine assessed for a violation of a statute or regulations.” Black’s Law Dictionary 1168 (8th ed.2004). A fine is “a pecuniary criminal punishment or civil penalty payable to the public treasury.” Id. at 664. Plaintiff may not appreciate that, as a matter of law, a “penalty” is not money damages. See, e.g., Sipes ex rel. Slaughter v. Russell, 89 F.Supp.2d. 1199, 1204 (D.Kan.2000) (“On its face, though, 15 U.S.C. § 2615 permits only the United States (through the EPA) to impose fines and penalties on TSCA violators. It does not allow private citizens to enforce the penalty provisions as a method for recovering compensatory damages.”). Since neither the TSCA nor the RLBPHRA impose a duty on the Government to pay money damages for violations thereof, as a matter of law, the United States Court of [779]*779Federal Claims has no jurisdiction over such claims. See Ayres, 66 Fed.Cl. at 561-68.

2. Plaintiff Did Not Exhaust Administrative Remedies Prior To Filing The June 10, 2004 Complaint In The United States Court Of Federal Claims.

Plaintiff requests the court’s reconsideration of the decision not to transfer Plaintiffs tort claims to the United States District Court for the District of Maryland. See Mot. To Recon. 2-3. Plaintiff argues that the May 28, 2002 Emergency Violation Notice and Order to Remove Lead Nuisance (“Notice”) forwarded to Michaelson, which in turn was forwarded to HUD, satisfied the requirements of filing an administrative action. Id. at 3. Faxing the Notice does not satisfy the requirements for initiating an administration complaint. See 28 C.F.R. § 14.2(a) (emphasis added) (“A claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident[.]”). Therefore, transfer is not in the interest of justice since the United States District Court for the District of Maryland would not have jurisdiction over Plaintiffs alleged tort claims because Plaintiff’s administrative remedies were not exhausted prior to filing the June 10, 2004 Complaint in the United States Court of Federal Claims. See Ayres, 66 Fed.Cl. at 564.

Second, Plaintiff argues that transfer is required because the time for filing an administrative claim was tolled, when the United States was substituted as the defendant in this action, pursuant to 28 U.S.C. § 2679. See Mot. To Recon. at 3 (citing 28 U.S.C. § 2675). Plaintiff fails to appreciate that 28 U.S.C. § 2675 has never been invoked in this case. As a threshold matter, Section 2679 requires certification by the Attorney General for substitution. See 28 U.S.C. § 2679 (“Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.”).

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Ayres v. United States, 67 Fed. Cl. 776, 2005 U.S. Claims LEXIS 259, 2005 WL 2100903 (uscfc 2005).

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