Dziekonski v. United States

FILED

MAY - s 2315

3111 the matter! étates QEuurt at erheral dilating, WWW

FEDERALW

No. 14-986C

(Filed: May 8, 2015)

****$********************************

KEVIN DZIEKONSKI,

Plaintiff, Pro _S_e Plaintiff; Lack of Jurisdiction;

Americans with Disabilities Act; USERRA;

Application to Proceed In Forma Pauperis

v.

THE UNITED STATES,

**********

Defendant.

*************************************

Kevin Dziekonski, Washington, DC, pm g.

Jeffrey M. Lowry, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

On October 14, 2014, Kevin Dziekonski (“plaintiff”), appearing m g, filed a four-page

complaint, with 159 pages of exhibits attached thereto, and an application to proceed i_n forma

pauperis. Subsequently, on October 24, 2014, plaintiff filed a six-page amended complaint with

a CD-ROM containing more than 645 files and subfiles of exhibits in support, which included 75

PDF and 11 Microsoft Word documents, and totaled approximately 1,900 pages. Plaintiff

appears to be a disabled veteran, and the crux of his amended complaint is his dissatisfaction

with the federal government and the State of Maryland’s treatment of veterans, and in particular,

disabled veterans. The amended complaint attempts to ground jurisdiction in this court on

alleged violations of constitutional and statutory provisions, none of which is money-mandating

for the purposes of the Tucker Act. 28 U.S.C. § ]491(a)(1) (2012). Defendant filed a motion to

dismiss plaintiff 5 amended complaint. Although plaintiff’ 5 application to proceed i_n forma

pauperis is granted, the court possesses no jurisdiction to hear plaintiff’s claims and must

therefore dismiss his amended complaint.

I. BACKGROUND

Generally, the consistent theme running throughout the amended complaint is plaintiff’ s

allegation that the United States has failed to “comply[ with ]or enforce[e ]laws [regarding]

disabled veterans” of the armed services. Am. Compl. at 1. Plaintiff avers that defendant has

violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. (1990); the

Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C.

§§ 4323 et seq. (2008); and other statutes and regulations regarding veterans’ rights or benefits.

1d, Plaintiff contends that federal, state, and local entities are “discriminating” against disabled

veterans by failing to adhere to laws and regulations concerning veterans’ employment, benefits,

and general fair treatment. I; at 1-4. Plaintiff further alleges that undocumented workers

receive more favorable treatment than veterans, id. at 4, that an insufficient number of veterans

are employed by the state of Maryland, Q at 4-5, and that veterans’ benefits were withheld

during and after the October 2013 federal government shutdown, ii at 2. According to plaintiff,

such violations “deny veterans’ constitutional rights and civil liberties,” Q at l, and constitute a

“crime against [him] and [] the Citizens of [tjhe United States,” icL at 2. In the “Conclusion”

section of the amended complaint, plaintiff purports to “hereby fine[ t]he United States ten

million ($10,000,000) dollars, plus ten thousand dollars ($10,000) per United States [flederal

[a]gency, per day, until [t]he United States ceases its continued non-compliance with [d]isabled

[vjeterans laws . . . .” Id. at 6.

Defendant filed a motion to dismiss plaintiff’s amended complaint pursuant to Rule

12(b)(1) of the Rules of the United States Court of Federal Claims (“RCF C”) for lack of subject

matter jurisdiction and for failure to state a claim, thus raising RCFC 12(b)(6), and on the

grounds that plaintiff has failed to allege a case or controversy. The motion is fully briefed, and

the court deems oral argument unnecessary.

II. STANDARD or REVIEW

A. RCFC 12(b)(1)

Whether the court has jurisdiction to decide the merits of a case is a threshold matter. E

Steel Co. v. Citizens for a Better Env’t, 523 US. 83, 94-95 (1998). “Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause.” Ex parte McCardle, 74 US. (7 Wall.) 506, 514 (1868). The parties, or

the court, sua sponte, may challenge the existence of subject matter jurisdiction at any time.

Arbaugh v. Y&H Corp, 546 US. 500, 506 (2006).

When considering whether to dismiss a complaint for lack of jurisdiction, a court

assumes that the allegations in the complaint are true and construes those allegations in the

plaintiff’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A 1919 se plaintiff’ s

complaint, “‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal

pleadings drafted by lawyers’ . . . .” Hughes v. Rowe, 449 US. 5, 10 n7 (1980) (quoting Haines

v. Kerner, 404 US. 519, 520-21 (1972)). However, a pr_o E plaintiff is not excused from

meeting basic jurisdictional requirements. E I-Ienke, 60 F.3d at 799 (“The fact that [the

plaintiff] acted m se in the drafting of his complaint may explain its ambiguities, but it does not

excuse its failures, if such there be”). In other words, a m s_e plaintiff is not excused from his

burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. E

McNutt v. Gen. Motors Acceptance Corp, 298 US. 178, 189 (1936); Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The plaintiff cannot rely solely on

allegations in the complaint, but must bring forth relevant, adequate proof to establish

jurisdiction. E McNutt, 298 US. at 189. Ultimately, if the court finds that it lacks subject

matter jurisdiction, then it must dismiss the claim. Matthews v. United States, 72 Fed. Cl. 274,

278 (2006); see also RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action”).

B. Tucker Act

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 US. 584, 586 (1941).

A waiver of immunity “cannot be implied but must be unequivocally expressed.” United States

V. King, 395 US. 1, 4 (1969). The Tucker Act, the principal statute governing the jurisdiction of

this court, waives sovereign immunity for claims against the United States not sounding in tort

that are founded upon the Constitution, a federal statute or regulation, or an express or implied

contract with the United States. 28 U.S.C. § l491(a)(1). However, the Tucker Act is merely a

jurisdictional statute and “does not create any substantive right enforceable against the United

States for money damages.” United States v. Testan, 424 US. 392, 398 (1976). Instead, the

substantive right must appear in another source of law, such as a “money-mandating

constitutional provision, statute or regulation that has been violated, or an express or implied

contract with the United States.” Loveladies Harbor Inc. V. United States, 27 F.3d 1545, 1554

(Fed. Cir. 1994) (en banc).

III. DISCUSSION

Plaintiff does not allege any claims based on a contract with the United States or a

money-mandating constitutional provision, statute, or federal regulation. Although plaintiff cites

certain statutes, none are money-mandating for the purposes of the Tucker Act. For example,

plaintiff’s reliance on the ADA is unavailing because the United States Court of Appeals for the

Federal Circuit has held that the “ADA is not a money-mandating” statute that would provide

this court with jurisdiction. Pierce V. United States, 590 F. App’x 1000, 1002 (2015). This is

because the statute confers exclusive jurisdiction over ADA claims on district courts. McCauley

v. United States, 1998 WL 224949, at *1-2 (Fed. Cir. Apr. 20, 1998) (affirming the Court of

Federal Claims’ holding that it lacked jurisdiction over an ADA claim because district courts

have exclusive jurisdiction over such claims); Boddie V. United States, 1996 WL 252832, at *1-2

(Fed. Cir. May 14, 1996) (“The [ADA] does not cover the federal goverrnnent.”) (citing 42

U.S.C. §§ 12111(2), (5), 12112 (1994)); Searles v. United States, 88 Fed. Cl. 801, 805 (2009);

see also United States v. Bormes, 133 S. Ct. 12, 18 (2012) (“The Tucker Act is displaced . . .

when a law assertedly imposing monetary liability on the United States contains its own judicial

remedies[, and accordingly,] the specific remedial scheme establishes the exclusive framework

for the liability Congress created under the statute”).

Similarly, plaintiffs citation to the USERRA fails to establish jurisdiction in this court.

The statute provides relief against employment discrimination on the basis of an individual’s

“membership, application for membership, performance of service, application for service, or

obligation” to the armed services. 38 U.S.C. § 4311(a). Under the USERRA, if a veteran has a

claim and the “the employer is a [flederal executive agency,” id. § 4322(a)(2)(B), jurisdiction to

adjudicate the claim lies with the United States Merit Systems Protection Board (“Board”), Q §

4324(a)(1). See also Bodus v. Dep’t of the Air Force, 82 M.S.P.R. 508, 513 (1999) (“Under the

Uniformed Services Employment and Reemployment Rights Act (USERRA), the Board has

jurisdiction over complaints of any person alleging discrimination in [flederal employment on

account of prior military service.” (citing 38 U.S.C. §§ 43 03(4)(A)(ii), 4311(a), 4322(a), 4324)).

Because the USERRA vests the Board with exclusive jurisdiction over veterans’ employment

actions against federal executive agencies, this court cannot exercise its jurisdiction to hear

plaintiffs claims.

Moreover, to the extent that plaintiff asserts claims against the State of Maryland or its

entities, the USERRA provides that “[i]n the case of an action against a State (as an employer)

by a person, the action may be brought in a State court of competent jurisdiction in accordance

with the laws of the State.” 38 U.S.C. § 4323(b)(2); Butts v. United States, 2014 WL 4071649,

at *2 (Fed. Cl. Aug. 15, 2014) (finding that “a USERRA claim brought by a private individual

against a state entity is to be brought in a [s]tate court” (internal citation and quotation marks

omitted)). This court thus has no jurisdiction to hear such claims, as jurisdiction lies with the

relevant state court(s).

The other statutory sections that plaintiff invokes, namely, 15 U.S.C. §§ 631, 63 7, and

656, do not mandate payment of monetary damages by the government within the Tucker Act.

Specifically, 15 U.S.C. § 631 sets forth Congress’s “declared policy” for the federal government

to provide “aid, counsel, assistance” and other support to small businesses. Further, 15 U.S.C. §

637 details the Small Business Administration’s duties regarding procurement and other types of

contracts. Moreover, 15 U.S.C. § 656 describes the Small Business Administration’s Office of

Women’s Business Ownership, including outlining the parameters of the Women’s Business

Center program. None of these statutes provides for the payment of monetary damages (nor do

any of them even pertain to veterans” claims), thereby preventing this court from exercising its

jurisdiction. 1

' When this court lacks jurisdiction over a particular action, it has the authority to

transfer that action to a court “in which the action . . . could have been brought at the time it was

filed or noticed” if such transfer is “in the interest of justice.” 28 U.S.C. § 1631. The court often

determines Whether transfer is in the interest of justice based upon an assessment of plaintiff‘s

claims on their merits. E Taylor v. United States, 92 Fed. Cl. 36, 39 (2010). “A decision to

transfer rests within the sound discretion of the transferor court, and the court may decline to

transfer the case ‘[i]f such transfer would nevertheless be futile given the weakness of plaintiff 8

case on the merits.” Spencer v. United States, 98 Fed. Cl. 349, 359 (2011) (quoting Faulkner v.

United States, 43 Fed. Cl. 54, 56 (1999)). Here, as defendant correctly notes, although plaintiff

makes “general allegations of discrimination against disabled veterans,” he fails to “plead any

concrete and particularized injury” that would give him standing to bring suit. Def’s Mot. at 5

(internal quotation marks omitted); fl alfl Monsanto Co. v. Geertson Seed Farms, 561 US.

139, 149 (2010) (“Standing under Article III of the Constitution requires that an injury be

concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and

redressable by a favorable ruling”). Thus, because plaintiff does not plead sufficient facts to

4

Additionally, plaintiff asserts that his constitutional. rights have been violated,2 but does

not specify which constitutional provisions relate to his claims, or indicate how such rights have

been infringed. However, he contends that the denial of his rights constitutes a crime. Assuming

plaintiff were to make out a cognizable criminal violation claim, the Court of Federal Claims

lacks jurisdiction to entertain criminal matters. E Joshua v. United States, 17 F.3d 378, 379-80

(Fed. Cir. 1994) (affirming that the Court of Federal Claims had “‘no jurisdiction to adjudicate

any claims whatsoever under the federal criminal code’”); Kania v. United States, 650 F.2d 264,

268 (Ct. C1. 1981) (noting that “the role of the judiciary in the high function of enforcing and

policing the criminal law is assigned to the courts of general jurisdiction and not to this court”).

Thus, this court possesses no jurisdiction to hear plaintiff‘s claims related to criminal violations.

Further, although plaintiff has attached approximately 1,900 pages of exhibits to his

amended complaint, he fails to explain how they relate to his allegations or are relevant to the

case. More narrowly, plaintiff does not indicate how any of the exhibits provide a basis for this

court’s jurisdiction to adjudicate his claims.

Finally, as noted above, plaintiff filed, concurrent with his original complaint, an

application to proceed i_n forma pauperis. Pursuant to 28 U.S.C. § 1915, courts of the United

States are permitted to waive filing fees and security under certain circumstances.3 SE 28

U.S.C. § l915(a)(l); see also Hayes v. United States, 71 Fed. Cl. 366, 366—67 (2006) (concluding

that 28 U.S.C. § 1915(a)(l) applies to both prisoners and nonprisoners alike). Plaintiffs wishing

to proceed i_n forma pauperis must submit an affidavit that lists all of their assets, declares that

they are unable to pay the fees or give the security, and states the nature of the action and their

belief that they are entitled to redress. 28 U.S.C. § 1915(a)(l). Here, plaintiff has satisfied all

three requirements. The court therefore grants plaintiff’s application and waives his filing fee.

demonstrate how he, specifically, has been injured, transfer to another court would be futile,

given the weakness of his claims on the merits. Accordingly, the court declines to transfer

plaintiff 5 claims.

2 To the extent that plaintiff asserts a due process claim under the Fifth and Fourteenth

Amendments of the United States Constitution, this court lacks jurisdiction. LeBlanc v. United

States, 50 F.3d 1025, 1028 (Fed. Cir. 1995).

3 While the Court of Federal Claims is not generally considered to be a “court of the

United States” within the meaning of title twenty-eight of the United States Code, the court has

jurisdiction to grant or deny applications to proceed i_n forma pauperis. SE 28 U.S.C. § 2503(d)

(deeming the Court of Federal Claims to be “a court of the United States” for the purposes of 28

U.S.C. § 1915); see also Matthews, 72 Fed. Cl. at 277-78 (recognizing that Congress enacted the

Court of Federal Claims Technical and Procedural Improvements Act of 1992, authorizing the

court to, among other things, adjudicate applications to proceed i_n forma pauperis pursuant to 28

U.S.C. § 1915).

In sum, the court GRANTS plaintiff‘s application to proceed i_n forma pauperis and

DISMISSES plaintiff’s amended complaint for lack of jurisdiction. No costs. The clerk is

directed to enter judgment accordingly.

IT IS SO ORDERED.