Broughton v. United States

• Court: United States Court of Federal Claims
• Decided: October 26, 2018
• Docket: 18-573
• Status: Unpublished

Opinion

lJn tISt @nftp! $rtstts @ourt of frlnsl @lsims No. l8-573C (Filed: October 26, 2018) NOT FOR PUBLICATION

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Plaintiff, Pro Se Plaintiff; Application to Proceed In Forma Pauperis; Motion to Dismiss for Lack ofJurisdiction, RCFC 12(b)(1); Statute of Limitations,23 U.S.C. $ 2501 THE TINITED STATES,

Defendant. ,{.

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OPINION AND ORDER

Plaintiff Darlene M. Broughton, proceeding p1q se, filed suit in this court seeking monetary damages for injuries she sustained while she was employed by the united sta;s Department of veterans Affairs ("VA") from 2005 to 2009. she funher seeks to proceed in forma pauperis. Defendant moves for the dismissal otplaintiffs complaint for lack of jurisdiction pusuant to Rule l2(bX I ) of the Rules of the United States Court of Federal Ctaims (.'RCFC'). For the reasons set forth below, the court grants both plaintiff s application to proceed in forma oauperis and defendant's motion to dismiss.

I. BACKGROUND

Plaintiff-a veteran of the UnitedStates Navy and the Naval Reserve who was honorably discharged in 1997-generally alleges that from 2005 to 2009,while she was emploved bv the vA in Denver, colorado, and Seattle, washington, she was repeatedly exposed to trur*aou. waste odors at her workspace, causing her to suffer hypoxia that required medical treatment.l She specifically identifies six such exposures: one at the Denver vA medical center in 2005, two at the Denver vA medical center in 2006, two at the seattle vA medical center in 200g, and two at the Seattle VA medical center in2009.

I The court derives the facts in this section from plaintiff s complaint, the exhibits attached to the complaint and plaintifls response to defendant's motionto dismiss, and documents appearing on the dockets of Broughton v. Merit Systems protection Board, No. 14- 3063 (Fed. cir. frled Jan. 30,2014), und Brorrghton u. M"rit Syrt".. F.ot""tion Bou.d, No. t4- 9004 (S. Ct. fited Nov. 14,20t4).

7016 00r{0 B00I 1353 E??1 rn 2009, plaintiff requested two accommodations from the vA-use of a fan and to be reassigned to another desk-but the VA denied her requests. Ultimately, plaintiff was unable to work and left the VA in May 2009. She sought workers' compensation from the United States Department of Labor office of workers' compensation Programs C'owcp), but her claim was denied on May 20,2009. However, plaintiff did qualif' for disability retirement based on a disability of asthma, and began receiving monthly annuity payments in December 2009. In December 2014, plaintiff was assessed with hypoxic respiratory failure and inhinsic bronchial asthma.

Two years earlier, on November 26, 2012, plaintiff frled an appeal with the Merit systems Protection Board C'MSPB) in which she alleged that her resignation from the vA was involuntary. The MSPB dismissed the appeal as untimely on Decembei 30, 2013. plaintiff appealed the MSPB's decision to the United States Court of Appeals for the Federal Circuit ("Federal circuit") on January 30,2014. The Federal circuit affirmed the MSpB,s decision on September 11,2014. The United states supreme court ("Supreme court") subsequently denied plaintiffs petition for a writ of certiorari on April 27,2015, and request for rehearing o1 augurt 10,2015.

In the meantime, in July 2014, plaintiff submitted another claim for workers' compensation. The owcP denied the claim on July 17,2015. plaintiff appealed that denial to th€ united states Department Labor Employees' compensation Appeais Board (.,ECAB,,). The ECAB dismissed plaintiff-ofs appeal as untimely on October 31, 2b17.

In addition, in2015, plaintifffiled suit in the United States District Court for the District of lof 9ya9 ('district court"). The district courr dismissed the suit on February 25,2016, due to plaintiffs failure to satisfy Rule 8 of the Federal Rules of Civil Procedure. ehintiif appealed the dismissal to the united states court of Appeals for the Tenth circuit (.,Tenth circuit,), which affirmed the district court's decision on May 5,2016.

Plaintiff frled her complaint in this court on April lg,20lg. In her complaint, she requests inflation-adjusted statutory civil penalties for the VA's deliberate violitions ofthe Clean Air Act or, in the alternative, damages in the amount of $3,195,000 for the vA,s deliberate violations of the clean Air Act, the occupational Safety and Health Act, and the Americans with Disabilities Act. She further indicates jurisdiction is proper under the Contract Disputes Act of 1978' Finally, she states that she has "not received [the] military pay" to which she was entitled as a result of the injury she sustained during her emplolment with the VA. on June 18, 2018, defendant filed a motion to dismiss plaintifps complaint for lack of jurisdiction pursuant to RCFC l2(bXl). plaintiff filed u.erponse in opposition to defendant's motion on July 26,2018, and defendant filed a reply on August 10, 201g. The court deems oral argument unnecessary.

-2- II. DISCUSSION

A. Standard of Review When considering whether to dismiss a complaint for lack of jurisdiction pursuant to RCFC 12(b)(1), a court assumes that the allegations in the complaint are true and construes those allegations in the plaintifPs favor. Trusted Integration. Inc. v. united states, 659 F.3d 1159, 1163 (Fed. cir. 2011). However, plaintiffs proceeding p1q se are not excused from meeting basic jurisdictional requirements, Henke v. united states,60 F.3d 79s,799 (Fed. cir. 1995), even though the court holds their complaints to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kemer, 404 u.s. 519,520-21 (1972). rn other words, a plaintiff proceeding p1q se must prove, by a preponderance of the evidence, that the court possesies jurisdiction. See McNutt v. Gen. Motors Acceptance com.,298 u.s. 17g, lg9 (1936); Trusted Integration. Inc.,659 F.3dat 1163. Ifthe court finds that it lacks subject matter jurisdiction over a claim, RCFC l2(h)(3) requires the court to dismiss that clarm.

B. Jurisdiction Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See Steelco. v. citizens for a Better Env't, 523 u.s. 93, 94-95 (1998). ,.without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when rt ceases to exist, the only function remaining to the court is that ofannouncing the fact and dismissing the cause." Ex parte Mccardle, T4 u.s. (7 wall.) so6,514tlg6gy. Thgp.rties orthe court +l spalle may challenge the existence of subject matter jurisdiction at any time. Arbaush v. Y & H Corp., 546 U.S. 500, 506 (2006).

The ability of the United states court of Federal claims (,,court of Federal claims,,) to entertain suits against the United States is limited. "The United states, as sovereign, is immune from suit save as it consents to be sued." united States v. Sherwood, 312 u.s. sg:4,'sg6 (1941). The waiver of immunity "cannot be implied but must be unequivocally uoit"d slatcs:-King, 395 u.s. r,4 (1969). Further, "[w]hen waivei legislation"*pr"rr"d.'; contains a statute of limitations, the limitations provision constitutes a condition on th1 waiver ofsovereign immunity." Block v. North Dakota ex rel. Bd. of univ. & Sch. Lands, 461 u.s. 2n:287 (rgi3).

The Tucker Act, the principal statute goveming the jurisdiction ofthis court, . waives sovereign immunity for claims against the United States, not sounding in tort, that are founded upon the united states constitutio-n, a federal statute or regulation, or-- or implied conftact with the united states. 28 u.s.c. g 1a91(a)(l) (zbl2). However, "*pi.r, the Tucker ict is merely ajurisdictional statute and "does not create any substantive right enforceable against the united States for money damages." United States v. Testan,424u.i.3g2,3gg(1976j. Instead, the substantive right must appear in ,or.." of lu*, *ch a,.money-.-autrig -oth.. as constitutional provision, statute or regulation that has been violated, o, * or im-plied "*pr"r, 154i.1554 contract with the United states." Levgiadies Harbor. Inc. v. UnitedStates,zip.za (Fed. cir. 1994) (en banc). In addition, to fall within th4uri.ai"t court of Federal against the,United stales filed in the court must be "filed within six years 9]:lT:,l,lt:tltm such claim first accrues." 28 u.s.c. g 2501; see also John R. sand & Gravel co. .,r. after united

-3- states, 552 u.s. 130, 133-35 (2008) (providing that the limitations period set forth in 28 u.S.c. $ 2501 is an "absolute" limit on the ability of the Court of Federal Claims to reach the merits of a claim); Martinez v. United States, 333 F.3d 1295,1i03 (Fed. Cir. 2003) (en banc) (.,A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiffto bring suit, i.e., when'all events have occurred to fix the Govemment's alleged liability, entitling the claimant to demand pal,rnent and sue here for his money."' (quoting Naeer Elec. Co. v. United States,369F.2d 847, 851 (Ct. Cl. 1966).

C. The Court Lacks Jurisdiction to Entertain plaintiff s Claims

. construing the allegations in the complaint in the light most favorable to plaintiff, plaintiff asserts that she is entitled to monetary damages for injuries she suffered while employed by the vA from 2005 to 2009. In other words, plaintiffs claims accrued no later than 2009. Plaintiff did not file suit in this court until 2018, more than six years after her claims accrued. Because plaintiff did not file her complaint within the six-year limitation period set forth in 28 U.S.C. g 2501, the court lacks jurisdiction to entertain plaintiff s claims.

Further, the court would lack jurisdiction over plaintiff s claims even if her claims were within the statute of limitations. First, plaintiff is seeking damages for personal injuries, in other words, she is asserting claims sounding in tort. The Court of Federal Claims iacks iurisdiction over such claims. See 28 U.S.C. g 1491(a)(1).

Second, the Court ofFederal Claims is not authorized to entertain claims under the three slatutes identified by plaintiff-the clean Air Act, the occupational Safety and Health Act, and the Americans with Disabilities Act. The Clean Air Act permits individuals to raise certain challenges in federal courts ofappeals, see 42 u.s.c. 7607(b)(l) (2012), andseek to enforce $ emission standards or limitations in federal district courts, s". io. g 760a({. Accord Del. valley citizens council for clean Air v. Davis ,932 F.2d256,265 (3d cir. l99l ) i.tr, ,ho.t, "itlr"n. who claim that the emission standards themselves are inadequate must petiiion the appropriate court of appeals pursuant to g 7607, while citizens who merely wish toinforce the #irriurrs standards may sue in district court pursuant to 7604.. (footnote omitted)). The $ court of Federal claims is neither a federal court ofappeals nor a federal district court. See2gU.S.c. $ 41 (identifying the thirteen federal courrs ofappeals); Ledford v. United Statel 2 97 F.3d 137g, 1382 (red. cir. 2002) (per curiam) ("The court ofF"d"rul clui-r ir no t i"t court ofthe UnitedStates...."). Moreover, "the Clean Air Act does not authorize a private cause ofactlon for compensatory damages for alleged violations ofthe Act. . . ." Abuhouran v. KaiserKane. 4o,No. l0-6609 (NLH/KMW),2011 wL 6372208,ut *+ 1o.N.l.D--q.rr;@ Bowlinq v. United States,93 Fed. cl. 551,559-60 (2010) (holding that the.clean'Air AJ..is intended to address environmental harm rather than personal injury claims,'). The occupational Safety and Health Act does not allow for individuals to file suii foi violations ofthe Acior rts regulations. See 29 u.S.c. $ 653 (20 r 2) ('Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, iir"is"r, or death ofemployees u.irrrrg ou, -_ course o{ employment."); Crane v. Conoco. Inc., 4l F.3d 547, 55a 9f.:_g: th" 1Ottr Clr. t ee+; ("[Violations ofthe Occupational Safety and Health Act] do not themselves constitute a Dnvate

-4- cause ofaction for breach."); Bowline, 93 Fed. Cl. at 558 (observing that violations ofthe Occupational Safety and Health Act "are properly reported to the office ofthe Secretary of Labor" and holding that the Court of Federal Claims has no jurisdiction over claims alleging such violations). And, the Americans with Disabilities Act does not apply to the federal government as an employer. 42 U.S.C. $ 12111(2), (5); Searles v. United States, 88 Fed. Cl. 801, 805 (2009).

Third, although plaintiff asserts that this court possesses jurisdiction to entertain her claims pursuant to the Contract Disputes Act of 1978, that statute applies only to contracts with the federal goveffment to procure goods and services. See 41 U.S.C. 57102 (2012). Plaintiff has not alleged such a contractual relationship with the federal govemment. Indeed, plaintiff has not alleged that she has any contractual relationship with the federal govemment.2 Cf. Nat'l R.R. Passenger Com. v. Atchison Topeka & Santa Fe Rv. Co.,470 U.S. 451,465-66 (1985) ("[A]bsent some clear indication that the legislature intends to bind itself contractually, the presumption is that'a law is not intended to create private contactw or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.' This well- established presumption is grounded in the elementary proposition that the principal function of a legislature is not to make contracts, but to make laws that establish the policy of the state." (citations omitted) (quoting Dodge v. Bd. ofEduc.,302 U.S. 7a,79 (1937))); Schism v. United States, 316 F.3d, 1259,1274-75 (Fed. Cir. 2002) (en banc) ("Federal employees . . . serve by appointment, not contract . . . ."); Chu v. United States ,773 F .2d 1226, 1229 (Fed. Cir. 1985) (noting that the relationship between the federal govemment and its employees is not govemed by the general principles of contract law); Martinez v. United States,48 Fed. Cl. 851, 862-63 (2001) (holding that a federal regulation did not create privity of contract between the plaintiff and the government), affd, 281 F.3d 1376 (Fed. Cir.2002).

Fourth, to the extent plaintiffis so requesting, the Court ofFederal Claims may not review the decisions of the OWCP, ECAB, MSPB, district court, Tenth Circuit, Federal Circuit, or Supreme Court. Decisions of the OWCP may only be appealed to the ECAB, 20 C.F.R. $ 10.600 (2018), and decisions of the ECAB are not subject to judicial review, id. g 501.6(d); 5 U.S.C. $ 8128(b) (2012). Decisions of the MSPB are appealable to the Federal Circuit or, in certain circumstances, other federal courts ofappeals, federal district courts, or the Equal Employrnent Opportunity Commission.3 See 5 U.S.C. 5 7703;28 U.S.C. $ 1295(a)(9). And, the Court ofFederal Claims lacks the authority to review the decisions ofother federal courts; as explained by the Supreme Court:

2 In the documents constituting her response to defendant's motion to dismiss, plaintiff refers only to a contract between the VA and a union representing the VA's employees. Plaintiff has not provided any evidence that she has a right to sue the VA for breach ofthat contract in the Court of Federal Claims.

3 To the extent that the Corut ofFederal Claims would have jurisdiction to review decisions of the MSPB pursuant to 5 U.S.C. g 7703(b)(2)-which concerns discrimination claims that can be asserted under the Fair Labor Standards Act of 1938-petitions for review under that provision must be filed within thirty days of the MSPB's decision. Plaintiff filed her complaint in 2018, more than four years after the MSPB issued the decision in plaintiff s case. Congress has prescribed a primary route, by appeal as ofright and certiorari, through which parties may seek relief from the legal consequences ofjudicial judgments. To allow a party who steps offthe statutory path to employ . . . [a] collateral attack on the judgment would-1uite apart from any considerations of faimess to the parties-disturb the orderly operation of the federal judicial system.

U.S. Bancom Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18,27 (1994); accord Shinnecock Indian Nation v. united states,782F.3d134s,l3s2 (Fed. cir. 2015) ("Binding precedenr establishes that the Court of Federal Claims has no jurisdiction to review the merits of a decision rendered by a federal district court."); Vereda. Ltda. v. United states,2Tl F.3d,1367, 1375 (Fed. Cir. 2001) ("[T]he Court ofFederal Claims cannot entertain a taking claim that requires the court to 'scrutinize the actions ofl another tribunal." (quoting Allustiarte v. united states,2s6 F.3d, 1349' 1352 (Fed. cir. 2001))); Joshua v. Unired States, 17 F.3d 378, 380 (Fed. cir. 1994) (,.[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district courts . . . relating to proceedings before those courts.',).

Finally, to the extent that plaintiffs assertion that she has "not received [the] military pay" to which she was entitled as a result of the injury she sustained during her employment with the VA is a claim for military pay,a the court cannot consider it. It is well establishid that 37 u s'c' $ 20a@)Q), which entitles military service members to basic pay while on active duty, is 1o]r:y-mandating source ofjurisdiction in the Court of Federal Claims. Metz v. United States, a 466 F.3d 991,998 (Fed. cir. 2006) (citing In re united States. 463 F.3d 1329. 1i34 Ged. cir. 2006); James v. caldera, I 59 F.3d 523, 581 (Fed. cir. 1998)). However, a claim for back pay arising under 37 u.s.c. $ 204 accrues no later than the date on which the service member was separated from the military. Martinez, 333 F.3d at 1303-04. Accordingly, plaintiffs purported claim for military pay accrued in 1997 when she was discharged from thi Naval Reseive, more tlan six years before she filed suit in this court. Thus, such a claim would be untimely under 2g u.s.c. $ 2501. Moreover, to take advantage of 37 U.S.c. g 20a(a\l), a plaintiff musi establish a Notwithstanding the language used by plaintiff in her complaint, the court suspects that plaintiff may be requesting something different than military pay. Based on the contents of some of the documents attached to the complaint, plaintiff may be;laiming that she did not receive credit for her military service when the amount of her diiability retirement payments was determined. If so, such a claim would be beyond this court's jurisdiction because, at a minrmum, it accrued in 2009, more than six years before plaintiff filed her complaint. Altematively, based on the contents ofone ofthe documents constituting her response to defendant's motionto dismiss, plaintiff may be claiming that she was not tredited with deemed military wages u,hile she was on active duty. Deemed military wages are used to allow members of a unifJrmed service_to receive credits for purposes of determining Social Security benefits. See42U.S.c. { 429; Soc Sec. Admin., social Security Handbook 5 953, https://www.ssa.gov/op_Home/ handbook/handbook.09/handbook-0953.html (last revised Aug.9,2006). A-claim f& deemed military wages related to military service that concluded in l9-97 would be beyond this court,s jurisdiction because, at a minimum, it accrued more than six years before plaintifffiled her complaint.

-6- that her separation from the military was involuntary. Metz,466 F.3d at 998. Here, plaintiff has not alleged that she was wrongfully discharged from the Naval Reserve. Accordingly, ifplaintiff is asserting a claim for military pay, the court would be required to dismiss it for failure to stare a claim upon which it could grant reliefpursuant to RCFC 12(b)(6).

In sum, the Court of Federal Claims lacks jurisdiction to entertain plaintiff s claims regardless of how they are characterized.

III. APPLICATION TO PROCEED IN FORMA PAUPERIS

As previously noted, plaintiff filed, concurent with her complaint, an application to proceed in forma pauperis. Pursuant to 28 u.s.c. 1915, the court of Federal claims may $ waive filing fees and security under certain circumstances. see 28 u.s.c. 1915(a)(1); see also $ Halzes v. united states,7l Fed. cI.366,366-67 (2006) (concluding that 2g u.s.c. $ 1915(a)(1) applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma p4gpgliq must submit an affidavit that lists all oftheir assets, declares that they are unable to pay the.fees or give the security, and states the nature ofthe action and their belieithat they are entitled to redress. 28 U.S.C. $ 1915(a)(1). Here, plaintiffhas satisfred all three requiiements. Accordingly, the court grants plaintiff s application and waives her filing fee.

IV. CONCLUSION For the reasons stated above, the court GRANTS plaintiffs application to proceed in forma Dauperis, GRANTS defendant's motion to dismiss and DISMISSES plaintiff s complaint wITHour PREJUDICE for lack ofjurisdiction. No cosrs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

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