Gimbernat v. United States

84 Fed. Cl. 350, 2008 WL 4725692
CourtUnited States Court of Federal Claims
DecidedOctober 24, 2008
DocketNo. 08-387C
StatusPublished
Cited by11 cases

This text of 84 Fed. Cl. 350 (Gimbernat v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gimbernat v. United States, 84 Fed. Cl. 350, 2008 WL 4725692 (uscfc 2008).

Opinion

OPINION

HEWITT, Judge.

Before the court are defendant’s Motion to Dismiss (defendant’s Motion or Def.’s Mot.), filed July 25, 2008, plaintiffs Response Objecting to Defendant’s Motion To Dismiss (plaintiffs Response or Pl.’s Resp.), filed August 8, 2008, and Defendant’s Reply in Support of the Motion to Dismiss (defendant’s Reply or Def.’s Reply), filed September 11, 2008.

Also before the court are Plaintiffs Motion for a Court Order for USCFC Clerk to Issue Plaintiff Antonio Gimbernat an E-mail Address for E-filing Motions & Pleadings, filed June 2, 2008, Plaintiffs Motion for a Court Order for USCFCBA to Locate & Refer “Pro Bono” Attorney(s) for Plaintiff Antonio Gimbernat[’]s Legal Counsel; Plaintiffs Supplemental Pretrial Discovery, filed June 2, 2008, plaintiffs Motion for a Court Order for Subpoena Duces Tecum for Military Records; Plaintiffs Supplemental Pretrial Discovery, filed June 2, 2008, Plaintiffs Motion for an Answer from U.S.C.F.C. Regarding Plaintiffs “Motion for Subpoena Duces Te-cum for Military Records,” filed August 29, 2008, and plaintiffs Motion for Leave of Court to File Fact Evidence for Examination (plaintiffs Motion or Pl.’s Mot.), filed August 29, 2008. The court granted plaintiffs Motion on September 30, 2008. Order of Sept. 30, 2008.

I. Background and Introduction

Plaintiff, Antonio Gimbernat, pro se, filed a complaint (Complaint or Compl.) with this court on May 28, 2008. Compl. i. Plaintiff alleges that he has suffered “three counts” of sexual harassment, “two counts” of physical threats, “one count” of employer retaliation, and “one count” of a violation of his human rights under the Universal Declaration of Human Rights.1 Id. at 7. Mr. Gimbernat claims that these violations are compensable in this court under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 1983, and under the Universal Declaration of Human Rights. Id. He seeks one billion dollars in damages. Id. at 8.

Plaintiff enlisted in the United States Navy Reserve on July 29, 1986. Id. tab 8 at 1. Plaintiff claims that during his naval training he was “singled out” by a “company class leader” and forced to call himself a homosexual. Id. tab 1 at 2-3. He claims that the action of the “company class leader” caused him severe emotional and mental harm that led to his discharge, dependence on alcohol, drug abuse, and numerous altercations with law enforcement. Id. at 7-8. He also alleges that his small business income has decreased as a result of the action of the “company class leader.” Id. at 8.

According to the Board for Correction of Naval Records (BCNR), plaintiff was absent from command without authority on several occasions during his service with the Navy. Id. tab 8 at 1. He received “nonjudicial punishment for unauthorized absences.” Id. During his service with the Navy he had two psychiatric evaluations. Id. Plaintiff was diagnosed with a personality disorder on July 22, 1987 and a “passive-aggressive personality disorder” on August 6, 1987. Id. He received a general discharge due to his personality disorder because he would “pose a continuing risk to [himself] and others if retained.” Id. Plaintiff was discharged from the Navy on August 11,1987. Id. tab A at 2 (Form DD214 showing date of entry into and date of discharge from the Navy); id. tab 8 at 1. The discharge was classified as “general” and “under honorable conditions.” Id. tab A at 2.

[353]*353Plaintiff filed a written complaint with the United States Department of Justice (DOJ) on May 3, 2004. Id. tab 1 at 1. On September 6, 2004, plaintiff sent an additional written complaint to the United States Department of Defense (DOD). Id. tab 3 at 1. On December 3, 2005, plaintiff filed a petition with the BCNR that appears to seek to upgrade his discharge to an honorable discharge and requests $100 million dollars in damages. See id. tab 7 at 1-5. Plaintiff filed a pro se complaint in the Circuit Court for the Second Circuit of Hawaii naming the people of the United States and the Department of Corporation Counsel of Maui County as defendants on May 3, 2006. Id. tab 30 at I. The defendants in the Circuit Court case removed the case to federal district court on May 31, 2006. Id. tab 30 at 2. The district court granted both the United States’ motion to dismiss due to lack of jurisdiction, and the county’s motion to dismiss due to failure to state a claim. Id. tab 30 at 3,10.

Plaintiff claims that he was directed by the district court to file his claims in the United States Court of Federal Claims (USCFC). PL’s Resp. 9-10. He filed his Complaint in this court on May 28, 2008. Compl. i.

II. Legal Standards

The question of whether this court has subject matter jurisdiction over a claim is a threshold matter that must be determined at the outset. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir. 2007). “If the court finds that it lacks jurisdiction over the subject matter, it must dismiss the claim.” Matthews v. United States (Matthews), 72 Fed.Cl. 274, 278 (2006); see Rules of the United States Court of Federal Claims (RCFC) 12(h)(3).

Plaintiff bears the burden of establishing subject matter jurisdiction. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); Mients v. United States, 50 Fed.Cl. 665, 668 (2001). As a general matter, complaints filed by pro se plaintiffs are held to “ ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Howard v. United States, 74 Fed.Cl. 676, 678 (2006) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). “This latitude, however, does not relieve a pro se plaintiff from meeting jurisdictional requirements.” Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (Table).

The jurisdiction of the USCFC is set forth in the Tucker Act, 28 U.S.C. § 1491 (2006):

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Cite This Page — Counsel Stack

Bluebook (online)
84 Fed. Cl. 350, 2008 WL 4725692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gimbernat-v-united-states-uscfc-2008.