Kelly-Leppert v. United States

Opinion

In the United States Court of Federal Claims No. 21-955C (Filed: December 10, 2021) NOT FOR PUBLICATION

) CONSUELO E. KELLY-LEPPERT, ) ) Pro Se Plaintiff, ) Reconsideration; RCFC 59; Veterans ) Healthcare Benefits; Transfer; 28 v. ) U.S.C. § 1631 ) THE UNITED STATES, ) ) Defendant. ) )

ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR TRANSFER

Now pending before the court is pro se plaintiff Consuelo E. Kelly-Leppert’s

motion for reconsideration, under Rule 59(a) of the Rules of the United States Court of

Federal Claims (RCFC), of this court’s July 8, 2021 opinion dismissing her amended

complaint for lack of subject matter jurisdiction. Mot. at 1, ECF No. 19. For the reasons

that follow, the court DENIES the motion for reconsideration.

I. BACKGROUND

Pro se plaintiff Consuelo E. Kelly-Leppert filed this action alleging that the

government failed to provide her deceased husband and business partner, a Vietnam

veteran, with a comprehensive health exam regarding exposure to Agent Orange, an

herbicide agent used in the Vietnam War. Kelly-Leppert v. United States, No. 21-955C, 2021 WL 2853171, at *1 (Fed. Cl. July 8, 2021); see also Procopio v. Wilkie, 913 F.3d

1371, 1373 (Fed. Cir. 2019) (describing Agent Orange). Construed liberally,1 Ms. Kelly-

Leppert’s amended complaint alleged the following: that the government breached an

implied contract between the Department of Veterans Affairs (VA) and her husband to

provide a medical exam and healthcare benefits; that the government breached its

fiduciary duty to her husband by failing to provide a comprehensive medical exam; that

the government violated her husband’s civil rights and constitutional rights under the

Fourteenth Amendment, and; that the government committed medical malpractice.

Kelly-Leppert, 2021 WL 2853171, at *1. Ms. Kelly-Leppert sought $138 million in

monetary damages for the loss of her business partner, loss of consortium, pain and

suffering, and damages to her business. Id.

The government moved to dismiss Ms. Kelly-Leppert’s case for lack of subject

matter jurisdiction under RCFC 12(b)(1). Id. at *2. Ms. Kelly-Leppert opposed the

motion, arguing primarily that her claims were grounded in a contract with the federal

government and that under the Tucker Act, 28 U.S.C. § 1491, this court had jurisdiction

to hear those claims. See Pl.’s Mot. & Opp. at 6-21, ECF No. 14.

On July 8, 2021, the court granted the government’s motion to dismiss. Kelly-

Leppert, 2021 WL 2853171, at *1. Turning first to Ms. Kelly-Leppert’s contract claim,

the court explained that there is no contract-based jurisdiction in the Court of Federal

1 Because she is proceeding pro se, the court construes all of Ms. Kelly-Leppert’s pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

2 Claims for veteran’s healthcare benefits claims because those claims are governed by

statute and not by contract with the government.2 Id. at *3-5. The court also noted that

Ms. Kelly-Leppert failed to identify any statute creating a fiduciary duty to provide her

husband with a comprehensive medical exam. Id. at *5 n.2. The court therefore

concluded that it lacked jurisdiction over Ms. Kelly-Leppert’s contract-based claims. Id.

at *5. The court further explained that, under well-established precedent, the court lacked

jurisdiction over Ms. Kelly-Leppert’s remaining medical malpractice tort claims, her

constitutional claims based on the Fourteenth Amendment, and her civil rights claims.

Id. at *6. The court therefore dismissed Ms. Kelly-Leppert’s amended complaint for lack

of subject matter jurisdiction.3 Id. at *1, 7.

Ms. Kelly-Leppert has now timely filed a motion for reconsideration of this

dismissal under RCFC 59. Mot. at 1. She argues that reconsideration is warranted

because certain regulations and statutes support her fiduciary duty claim, id. at 1-3, 5, the

court has contract-based jurisdiction over her claims, id. at 1-2, 4-5, the Tucker Act is

2 The statute governing wrongful denial of VA benefits provides that the “Secretary [of the VA] shall decide all questions of law and fact” regarding veterans benefits. 38 U.S.C. § 511(a). A veteran may appeal the Secretary’s decision to the Board of Veterans’ Appeals, then to the Court of Appeals for Veterans Claims, and finally to the United States Court of Appeals for the Federal Circuit. Id. §§ 7104, 7252(a), 7292. Because this court “is not part of this statutory regime,” the court also does not have jurisdiction over claims for the wrongful denial of veterans benefits based in statute. Estate of Smallwood v. United States, 130 Fed. Cl. 395, 399-400 (2017), aff’d 717 F. App’x 1007 (Fed. Cir. 2018) (per curiam). 3 Ms. Kelly-Leppert also filed a motion to proceed in forma pauperis, a motion for summary judgment and oral argument, and a motion for default judgment. Kelly-Leppert, 2021 WL 2853171, at *2. The court granted the motion to proceed in forma pauperis and denied as moot the motion for summary judgment and oral argument and the motion for default judgment. Id. at *1, 7.

3 unconstitutionally vague, id. at 4, and the court may hear her civil rights claims,

constitutional claims, and claims for veterans healthcare benefits, id. at 5-8. Ms. Kelly-

Leppert also appears to request that, if the court construes her claims as tort claims rather

than contract claims, the court transfer her case to the appropriate district court under the

Federal Tort Claims Act (FTCA). Id. at 2-3.

On October 21, 2021, this case was transferred to the undersigned judge. See

Order, ECF No. 20. At the court’s request, the government filed a response to Ms. Kelly-

Leppert’s motion for reconsideration. See Order, ECF No. 22. The government opposes

reconsideration, arguing that Ms. Kelly-Leppert repeats arguments previously made or

improperly raises new arguments that are not supported and cannot serve as a basis for

reconsideration. Resp. at 1-4, ECF No. 23. The government further contends that

transfer of Ms. Kelly-Leppert’s tort claims is inappropriate because Ms. Kelly-Leppert

fails to show that she has satisfied the administrative exhaustion requirements of the

FTCA, a prerequisite to bringing an FTCA claim in district court. Id. at 4-5.

In reply, Ms. Kelly-Leppert cites additional regulations and statutes that she

asserts support her claims, Reply at 2, 4, 8, ECF No. 24, restates her argument that the

Tucker Act is void for vagueness, id. at 5, and appears to argue for the first time that she

is asserting a Fifth Amendment takings claim, id. at 3.

II. LEGAL STANDARDS

Under RCFC 59(a)(1), the court “may, on motion, grant a new trial or a motion for

reconsideration on all or some of the issues . . . .” Reconsideration may be justified on

three primary grounds: “when there has been an intervening change in the controlling

4 law, newly discovered evidence, or a need to correct clear factual or legal error or prevent

manifest injustice.” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quotation

omitted). However, reconsideration motions may only be granted in “extraordinary

circumstances,” id. (quotation omitted), and “may not be used to relitigate old matters, or

to raise arguments or present evidence that could have been raised prior to the entry of

judgment,” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quotation

omitted); see also Del. Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374,

1384 (Fed. Cir. 2010) (noting that a reconsideration motion should not be used “to

present authorities available at the time of the first decision or to reiterate arguments

previously made”); Lee v. United States, 130 Fed. Cl. 243, 252 (2017) (holding that the

court will not grant a motion for reconsideration based on “new arguments that could

have been made earlier”), aff’d, 895 F.3d 1363 (Fed. Cir. 2018); Ammex, Inc. v. United

States, 52 Fed. Cl. 555, 557 (2002) (A court “will not grant a motion for reconsideration

if the movant merely reasserts . . . arguments previously made . . . all of which were

carefully considered by the Court.” (quotation and emphasis omitted)). When a party

seeks reconsideration on the ground of clear error or manifest injustice, “it cannot prevail

unless it demonstrates that any injustice is apparent to the point of being almost

indisputable.” Ingham Reg’l Med. Ctr. v. United States, 155 Fed. Cl. 1, 11 (2021)

(quotations omitted); see also Del. Valley, 597 F.3d at 1384 (noting that only “rare”

errors would justify reconsideration based on manifest injustice); Multiservice Joint

Venture, LLC v. United States, 374 F. App’x 963, 967 (Fed. Cir. 2010) (noting the high

burden placed on the party moving for reconsideration). Deciding whether

5 reconsideration is appropriate “lies largely within the discretion of the [trial] court.”

Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990).

III. DISCUSSION

Applying these standards, Ms. Kelly-Leppert’s motion for reconsideration must be

denied. Ms. Kelly-Leppert does not point to any change in the controlling law or the

discovery of new evidence that was previously unavailable. Therefore, the court

construes her motion as arguing that the dismissal of her amended complaint was

“indisputabl[y]” wrong and a “manifest injustice.” Ingham, 155 Fed. Cl. at 11; see also

Del. Valley, 597 F.3d at 1384. However, Ms. Kelly-Leppert fails to demonstrate that

reconsideration is warranted on these grounds, for three reasons.

First, in her motion and reply, Ms. Kelly-Leppert restates some of her arguments

that were previously considered by the court in dismissing her case. Compare Mot. at 1-

2, 4-5 (citing Woodbury v. United States, 313 F.2d 291 (9th Cir. 1963), and arguing that

Ms. Kelly-Leppert’s claims were based in contract, not in tort), with Pl.’s Mot. & Opp. at

1, 10-15 (same); compare Mot. at 5-6 (asserting civil rights and constitutional claims),

with Pl.’s Mot. & Opp. at 1, 21 (same). However, a motion for reconsideration “may not

be used to relitigate old matters,” Exxon, 554 U.S. at 485 n.5; see also Del. Valley, 597

F.3d at 1384; Ammex, 52 Fed. Cl. at 557, and these repeated arguments that the court

previously heard and rejected cannot serve as a basis for reconsideration.

Second, Ms. Kelly-Leppert raises in her motion for reconsideration “new

arguments that could have been made earlier.” Lee, 130 Fed. Cl. at 252; see also Del.

Valley, 597 F.3d at 1384. For example, Ms. Kelly-Leppert cites in support of her claims

6 statutes and regulations generally related to fiduciary duties and torts. See, e.g., Mot. at 1

(citing 42 U.S.C. § 14505 and 17 C.F.R. § 205.2); Reply at 2 (citing, for example, 32

C.F.R. § 750.23). These statutes and regulations could have been raised in her earlier

filings. In addition, for the first time in her reply, Ms. Kelly-Leppert appears to argue

that her allegations give rise to a Fifth Amendment takings claim. Reply at 3. However,

because she could have raised them earlier, Ms. Kelly-Leppert cannot rely on these

arguments to justify reconsideration. Lee, 130 Fed. Cl. at 252; see also Del. Valley, 597

F.3d at 1384.

Third, none of Ms. Kelly-Leppert’s arguments demonstrate that the court made an

“indisputable” legal or factual error warranting reconsideration. Ingham, 155 Fed. Cl. at

11; see also Del. Valley, 597 F.3d at 1384 (noting that only “rare” errors would justify

reconsideration based on manifest injustice). Ms. Kelly-Leppert first argues that the VA

owed a fiduciary duty to her husband when providing medical care to him. See Mot. at 1-

3. When it dismissed her amended complaint, the court held that Ms. Kelly-Leppert

failed to identify any statute establishing a fiduciary duty between her husband and the

government. Kelly-Leppert, 2021 WL 2853171, at *5 n.2. Ms. Kelly-Leppert, however,

does not cite any such statute in her motion for reconsideration or reply. Instead, she

cites various statutes that define a fiduciary duty, but do not establish that the government

owed a fiduciary duty to her husband through medical care by the VA. Mot. at 1-3

(citing, among others, 42 U.S.C. § 14505 (definition section of the Federal Volunteer

Protection Act, a law limiting liability for volunteers serving nonprofit organizations and

governmental entities); 17 C.F.R. § 205.2 (definition section related to a regulation

7 governing conduct for attorneys appearing before the Securities and Exchange

Commission); 29 U.S.C. § 1109 (describing fiduciary responsibility liability under the

Employee Retirement Income Security Act)); see also, e.g., Reply at 4 (citing 38 C.F.R. §

17.33 (defining VA patient rights generally)); id. at 8 (citing 29 U.S.C. § 1104 (defining

fiduciary duty under the Employee Retirement Income Security Act)).

Ms. Kelly-Leppert next appears to argue for the first time on reconsideration that

because the Tucker Act is unconstitutionally vague, the Tucker Act cannot limit the

court’s ability to consider her claim. Mot. at 4; Reply at 5. However, she provides no

support for this argument. As the government contends, if the Tucker Act was

unconstitutional, the court would not have jurisdiction to review Ms. Kelly-Leppert’s

claims at all. Resp. at 4.

Ms. Kelly-Leppert’s other newly-raised argument that her claims may be

construed as Fifth Amendment takings claims is likewise unsupported. Reply at 3. Ms.

Kelly-Leppert fails to explain how her claims amount to a taking of a cognizable property

interest under either a physical taking theory – a direct government invasion of private

property, see Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) – or a regulatory

taking theory – where government actions limit the use of private property to the extent

that a taking as occurred, id. at 537-38.

Ms. Kelly-Leppert also restates her arguments that the court can hear her veterans

benefit claims, constitutional claims, and civil rights claims. See Mot. at 1-2, 5-6, 8.

However, as the court previously explained, it has no jurisdiction over these claims.

Kelly-Leppert, 2021 WL 2853171, at *3-7. Ms. Kelly-Leppert does not explain how the

8 court committed a clear error in holding that it lacked jurisdiction. None of the various

state and federal cases, statutes, and regulations cited by Ms. Kelly-Leppert demonstrate

this court’s jurisdiction. For example, Ms. Kelly-Leppert cites Fischer v. United States,

364 F.3d 1372, 1375 (Fed. Cir. 2004), vacated by 403 F.3d 1307 (Fed. Cir. 2005), in

general support of her reconsideration motion. Mot. at 6. Fischer, however, is not a VA

healthcare benefits claim, and instead involved a decision by the Air Force Board for

Correction of Military Records regarding unpaid military medical retirement pay. 364

F.3d at 1374-75.

In sum, Ms. Kelly-Leppert’s motion for reconsideration reiterates arguments

previously raised or raises new arguments that could have been made earlier. In addition,

none of these arguments demonstrate that the court committed an indisputable error or a

manifest injustice. For these reasons, Ms. Kelly-Leppert fails to show that

reconsideration of the court’s decision dismissing her case is appropriate, and her motion

must be denied.

As a final matter, the court denies Ms. Kelly-Leppert’s request for transfer. Ms.

Kelly-Leppert appears to request in her motion for reconsideration that her claims, to the

extent that they may be construed as tort claims, be transferred to the appropriate district

court under the FTCA. Mot. at 2-3; see also 28 U.S.C. § 1346(b)(1) (granting the district

courts exclusive jurisdiction over FTCA claims). Under 28 U.S.C. § 1631, a federal

court must transfer an action to another federal court when (1) the transferring court lacks

subject matter jurisdiction; (2) the action could have been brought in the transferee court

at the time it was filed; and (3) such transfer is in the interest of justice. Space

9 Exploration Techs. Corp. v. United States, 144 Fed. Cl. 433, 445 (2019) (citing Jan’s

Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1303 (Fed. Cir. 2008)).

Here, the court agrees with the government that Ms. Kelly-Leppert does not satisfy the

second prong of this test because her tort claims cannot be brought in district court under

the FTCA. This is because nothing in Ms. Kelly-Leppert’s filings suggests that she has

satisfied the administrative exhaustion requirements of the FTCA related to the VA’s

treatment of her deceased husband. 28 U.S.C. § 2675(a) (requiring that prior to being

filed in a district court, an FTCA claim “shall have first [been] presented . . . to the

appropriate federal agency and [the] claim shall have been finally denied by the agency in

writing and sent by certified or registered mail”). Having failed to satisfy these

requirements, any district court would be unable to hear her FTCA claims. See, e.g.,

Montano Elec. Contractor v. United States, 610 F. App’x 987, 990-91 (Fed. Cir. 2015)

(holding that failure to file an administrative claim before bringing an FTCA claim

precluded transfer from the Court of Federal Claims to district court because “no district

court would have possessed jurisdiction” over the claim). Because she has not shown

that her tort claims could have been brought in district court at the time her complaint

was filed here, the court must deny her request for transfer.

10 IV. CONCLUSION

For the reasons discussed above, Ms. Kelly-Leppert’s motion for reconsideration,

ECF No. 19, is DENIED. The request for transfer contained in the motion for

reconsideration is also DENIED.

IT IS SO ORDERED. s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge