Cosner v. United States

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No. 16-957C (Pro Se)

DEC 2 2 2016

(Filed: December 22,2016 | Not for Publication)

U.S, COURTOF

FEDERAL CLAIMS

Ke)ryrords: Subject Matter Jurisdiction;

HOWARD E. COSNER, JR., RCFC 12(b)(l); Tucker Act; Equitable

Relief; Statute of Limitations;28 U.S.C.

Plaintiff, $ 2501.

THE LTNITED STATES OF AMERICA,

Defendant.

Howard E. Cosner, Jr., Bradenton, FL, pro se.

Nathanael B. Yale,Tial Attomey, Commercial Litigation Branch, Civil Division, Department of

Justice, Washinglon, DC, for Defendant, with whomwerc Martin F. Hockey, Jr., Asststarfi

Director, Robert E. Kirschman, "/r., Director, arld Benjamin C. Mizer, Principal Deputy Assistant

Attomey General. Dana Heck, Department of Veterans Affairs, Office of General Counsel, Of

Counsel.

OPINION AND ORDER

KAPLAN, Judge.

The pro se plaintiff in this case, Howard E. Cosner, filed this action for monetary and

other relief based on claims related to his former employment with the Department of Veterans

Affairs (the Departrnent). The case is currently before the Court on the govemment's motion to

dismiss Mr. Cosner's complaint pursuant to Rules of the Court of Federal Claims (RCFC)

12(bX1) and 12(b)(6).

For the reasons set forth below, the Court lacks subject matter jurisdiction over Mr.

Cosner's claims. The government's motion to dismiss prtrsrrtrnt to RCFC 12(bX1) is therefore

GRANTED.

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BACKGROUND'

Mr. Cosner was formerly employed by the Department at the Orlando VA Medica-

Center. See Compl. at 10; see also Compl.Tab2.In October 2006, he filed a formal Equal

Employment Opportunity (EEO) complaint with the Department, alieging age discrimination.

See Compl. Tab 7. On January 23,2007, he filed a second complaint alleging retaliation. Id. On

November 19,2007, the Departrnent issued Mr. Cosner a notice ofproposed removal. See id.

Tab 2 at 102-4. In response, he filed an appeal of that notice to the Merit Systems Protection

Board. See id.

On March 13, 2008, Mr. Cosner and the Department resolved his claims by entering into

a Settlement and Stipulation Agreement (the Agreement). See Compl. at 1. The Department

agreed to provide a lump-sum payment to Mr. Cosner, to remove references to certain negative

employment actions from his employrnent file, and to provide neutral employment references for

a period of two years following the Agreement's execution. See id. Tab 2 at 102-1024.In

exchange, Mr. Cosner agreed, inter alia, to dismiss his formal EEO complaints, to dismiss his

appeal before the Merit Systems Protection Board, and to "forever refrain from seeking or

accepting employment and/or any contractual relationship with, and [to] submit[] his irrevocable

resignation" from the Orlando VA Medical Center and its satellite facilities. Id. at 102-4-102-B.

Additionally, Mr. Cosner agreed to "the withdrawal of any claim, complaint[,] andior grievance

that the Complainant did, or could file or may file related to any suggestion or cost saving

initiative which he submitted to the Agency." Id. at 102-B.

More tlan two years later, on June 9, 2010, Mr. Cosner filed another EEO complaint with

the Department, this time alleging a breach ofthe confidentiality provision of the Agreement.

See id. Tab 9 at 137-A. Mr. Cosner's breach claim was based on a communication between the

Department and Congresswoman Suzanne M. Kosmas, which occurred as a consequence of his

own March 2010 request seeking the Congresswoman's assistance in determining his re-

employment status. Id. Tab 7 at 130-4-130-B. Specifically, in response to an inquiry from

Congresswoman Kosmas, the Department informed her that the Agreement precluded Mr.

Cosner's future employment with the Orlando VA Medical Center and its subsidiaries. See id.

According to Mr. Cosner, the Department breached the confidentiality provision ofthe

Agreement when it provided this information to the Congresswoman. See id. Tab 7 at 130.

On August 4, 2010, the Department rejected Mr. Cosner's EEO complaint. Compl. fl 1.

The Department stated that "the Agency did not violate the terms and conditions ofthe

settlement agreement," and that Mr. Cosner was "non-compliant as evidenced by [an] application

for employment" that he had allegedly submitted to the Orlando VA Medical Center. Id. Tab 7 at

130-D. It further noted that "as a general rule, if the complainant breaches the terms of the

agreement, then the Agency is excused from performing any remaining obligations." Id. It

concluded that Mr. Cosner's "June 19,2009, application for re-employment at the Orlando VA

I The facts set forth in this section are based on the allegations in Mr. Cosner's complaint, which

are assumed to be true for purposes of deciding the govemment's motion to dismiss. ln addition,

the Court relies on the attachments to the complaint, which it considers for purposes of deciding

whether it possesses jurisdiction over his claims.

Medical Center, which clearly violated the terms and conditions ofprovision 2.F [of the

Agreement], absolved the Agency of any further obligation to adhere to its terms," and that the

"Agency has not breached the March 13,2008, settlement agreement." Id.

In his complairt before the Court, Mr. Cosner denies that he filed an application for

employment with the Orlando VA Medical Center on June 19,2009. See Compl. fl 2. He alleges

that the application file upon which the Department relied was "false, incomplete, and not

provided by the Plaintiff." Id. That file, alleges Mr. Cosner, was actually part of a later

application for employment that he submitted on October 7, 2009, but which had been "altered,

dated and signed by persons unknown." Id.

Mr. Cosner subsequently appealed the Department's denial ofhis breach claim to the

Equal Employment Opportunity Commission's Office of Federal Operations (EEOC OFO). See

id. fl 4. On February 3,2012, EEOC OFO upheld the Department's decision. Id. at 5; see also id.

Tab 9. It did "not address the Agency's argument that Complainant himself violated the

Agreement." Id. Tab 9 at 137-B. Instead, EEOC OFO concluded that "the Agency ha[d] not

breached the Agreement" because it was Mr. Cosner who had sought the aid of his member of

Congress in relation to the Agreement. Id. It further found that any information revealed to her

was in "substantial compliance" with the Agreement's allowance for "information to be divulged

'to those required in order to . . . carry out its terms' and . . . 'to individuals involved in its

enforcement."' Id. Mr. Cosner then filed a request for reconsideration, which EEOC OFO denied

on December 6, 2012. Compl at 5.

On March 3, 2013, Mr. Cosner filed suit in the United States District Court for the

Middle District of Florida. Id.; see also Cosner v. Sec'y. Dep't of Veterans Affairs,2014 WL

542903 (M.D. Fla. Feb. 11,2014).In that action, he sought 1) rescission of the Agreement; 2)

damages for the Department's alleged breach ofthe Agreement; and 3) damages for the acts of

discrimination and retaliation Mr. Cosner originally alleged in the underlying EEO complaints.

Cosner,2014 WL 542903, at *2. The district court dismissed Mr. Cosner's complaint for lack of

subject matter jurisdiction, concluding that Mr. Cosner's remedies were limited to the exclusive

procedures set forth in Title VII. See id. at *3.2

After the district court dismissed his complaint, Mr. Cosner- --citing the Federal Tort

Claims Act (FTCA), 28 U.S.C. $$ 2671-80-filed three new claims with the Department. See

Compl. at 7-8; see also Compl. Tab 1 at201401-C. First, by letter of June 10, 2014,he sought a

payment of$112,500 as an award for the Department's alleged adoption ofa plan to reduce wait

times for denture patients that he claims he designed. Compl. Tab 1 at 201-201-D; see also

Compl. at 7. Thereafter, on June 13, 2014,he submitted a second claim, seeking reinstatement,

effective August 4,2010, and back pay in the estimated amount of$162,000, based on the

2

Although the district court referred to Mr. Cosner's case as arising under Title VII, the correct

source of statutory authority for his claims was the Age Discrimination in Employment Act

(ADEA),29 U.S.C. $$ 621-34. See Compl. TabT at 130 (noting Mr. Cosner's original claims

alleged discrimination "based on [his] age"). ADEA claims by federal employees are subject to

the same procedures for administrative and judicial review as are Title VII claims. See 29 U.S.C.

$ 633a(b).

Department's alleged abandonment of the Agreement settling his discrimination claims. Compl.

Tab 1 at 301-01-C; see also Compl. at 7-8. Finally, on June 30,2014, he filed a third claim with

the Department, this time requesting "restitution and compensation for the perpetration of

criminal acts upon the Claimant" by the Department, in the amount of $375,000. Compl. Tab 1

at 407401-C (emphasis omitted); see also Compl. at 8. Although not entirely clear, it appears

that this claim arose out of what he alleged was a mishandled or fraudulent investigation and

resolution ofhis EEO claim for breach ofthe Agreement, in which he claims forged documents

were assembled and considered. See Compl. Tab I at 401-A-401-B.

The Department denied all three claims. Compl. at 8. Citing the FTCA, it stated that Mr.

Cosner had failed to "identifr any actionable negligence on the part ofa VA employee acting in

the course and scope ofhis or her employee [sic] and [had] not establish[ed] that [he was]

damaged by any alleged negligence." Id. Tab 8 at 1. The Department concluded by noting that

"we do not share your view ofthe litigation and decline to grant or settle any employment claim

your letter[s] purport[] to tender." Id. at 2.

Mr. Cosner then filed suit in this Court on August 8, 2016. Docket No. 1. In his

complaint, he asserts that the Department's August 4, 2010 denial ofhis breach claim was a

"binding agency determination" and was a "declar[ation] that [the Department] had abandoned

and vacated the [Agreement], thus negating all of the Stipulations and Provisions." Compl. at 1.

Mr. Cosner requests that the Court issue an order directing the Department to "accept, adopt,

invoke and comply with the August 4, 2010 Determination . . . that the Agency has abandoned

and withdrawn from [the Agreement]." Id. at 9-10. Moreover, Mr. Cosner seeks $650,000 in

damages based upon the three "Claims for Restitution and compensation" he submitted to the

Department in June 2014. See id. at l, 10.

On November 4,2016,the govemment filed the motion to dismiss that is currently before

the Court. Docket No. 6. For the reasons set forth below, the Court concludes that it lacks

jurisdiction over Mr. Cosner's claims. Therefore, the govemment's motion to dismiss pursuant to

RCFC 12(bX1) is GRANTED.

DISCUSSION

In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the Court accepts

as true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe

plaintiff. Trusted Intesration. Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 201 l).

However, ifa movant disputes the basis ofthe Court's jurisdiction, the allegations in the

complaint are not controlling and the Court may review evidence extrinsic to the pleadings.

Cedars-Sinai Med. Ctr. v. Watkins, l1 F.3d 1573, 1583-84 (Fed. Cir. 1993).

It is well-established that complaints that are filed by pro se plaintiffs, like this one, are

held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,

404 U.S. 519,520 (1972). Nonetheless, a plaintiff bears the burden of establishing subject matter

jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373

(Fed. Cir. 2013); see also Reynolds v. Armv & Air Force Exch. Serv.,846F.2d746,748 (Fed,.

Cir. 1988). Therefore, even pro se plaintifls must persuade the Court that jurisdictional

requirements have been met. Bemard v. United States, 59 Fed. Cl' 497, 499 (2004), aff d, 98 F.

App'x 860 (Fed. Cir. 2004); Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 2014)

("the leniency afforded to a pro se litigant with respect to mere formalities does not relieve the

burden to meet jurisdictional requirements" (intemal quotation and citation omitted)).

The Tucker Act grants the United States Court of Federal Claims the power "to render

judgment upon any claim against the United States founded either upon the Constitution, or any

Act ofCongress or any regulation ofan executive departrnent, or upon any express or implied

contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort." 28 U.S.C. $ l49l(a). It serves as a waiver of sovereign immunity and a jurisdictional

grant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv.. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish

that "a separate source of substantive law . . . creates the right to money damages." Id. (quoting

Fisher v. United States, 402 F.3d,1167 , 1172 (Fed. Cir. 2005) (en banc in relevant part)); Rick's

Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 1Fed. Cir. 2008) (stating "plaintiff

must look beyond the Tucker Act to identifu a substantive source of law that creates the right to

recovery ofmoney damages against the United States" (citation omitted)).

A central element ofthe relief Mr. Cosner seeks is that this Court issue an order requiring

the Department to confirm that it "abandoned" the Agreement when it rejected his breach of

settlement agreement claim on August 4,2010. But the Court of Federal Claims does not have

power to "grant affrrmative non-monetary reliefunless it is tied and subordinate to a money

judgment." James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting Austin v. United

States,206 Ct.CL.719,723 (1975)); see also Feneiro v. United States,501 F.3d 1349, 1353 n.3

(Fed. Cir. 2007). In this case, Mr. Cosner has not alleged a claim for money damages that is

within this Court's jurisdiction.

First, Mr. Cosner does not allege any breach of the Agreement in his complaint, nor does

he seek monetary damages for any such breach. See Holmes v. United States, 657 F.3d 1303,

1312 (Fed. Cir. 201 1) (noting that suits alleging breaches of Title VII settlement agreements may

fall within the Court of Federal Claims's Tucker Act jurisdiction, but only if the agreement

"support[s] a fair inference that [the plaintiff] is entitled to the payment of money damages for

[the] breach"). Mr. Cosner also does not appear to be seeking to revive his underlying

discrimination claims on the grounds that the Agreement is somehow void or invalid. Even if he

were, this Court would not be the proper forum for doing so. See Tavlor v. United States, 73 Fed.

Cl. 532, 546 & n.25 (2006) (Court of Federal Claims does not have the equitable power to

rescind Title VII settlement agreements or order reinstatement of underlying Title VII claims);

see also Haque v. Unknown Partv, Named As Sec'y of Gov'ts, 636 F. App'x 1003, 1005 (Fed.

Cir. 2016) ("Title VII vests jurisdiction over discrimination claims exclusively in the district

court. . . ." (quoting Taylor v. United States,310 F. App'x 390, 393 (Fed. Cir. 2009))).

Further, this Court lacks jurisdiction over Mr. Cosner's claim seeking damages based on

the Department's failure to provide him a "money saving" award. Mr. Cosner does not identify

(nor is the Court aware of) any statute, regulation, or other source of substantive law that

mandates that Department employees receive such awards, which the Court assumes are

discretionary.

Mr. Cosner has also requested an award ofback pay and reinstatement effective August

4,2010,the date that he alleges the Department "abandoned" the Agreement. Mr. Cosner's

theory ofrecovery appeaxs to be that when the agreement was "abandoned," his resignation from

employment pursuant to the Agreement became "void." Compl. Tab 1 at 301-8. But even if Mr.

Cosner could identify a statutory or other basis for an award of monetary reliefin such

circumstances (and none is apparent), any claim that arose as a result of the August 4, 2010

"abandonment" of the settlement agreement would be baned by the Tucker Act's six-year statute

of limitations, 28 U.S.C. $ 2501, which is jurisdictional in nature. Shoshone Indian Tribe of

Wind River Reservation v. United States,672F.3d 1021,1029 (Fed. Cir. 2012) (citing John R.

Sand & Gravel Co. v. United States, 552 U.S. 130, 136-39 (2008)). Further, the Court can order

reinstatement only when it is connected to a claim for money damages over which the Court has

subject matter jurisdiction ur:der the Tucker Act. See 28 U.S.C. $ 1491(a)(2); see also Hwans v.

United States, 94 Fed. Cl. 259,270 (2010) (finding jurisdiction over claims for back pay and

reinstatement where member of military identified Military Pay Act as the money-mandating

statute conferring jurisdiction); Walker v. United States, 1 17 Fed. Cl.304,324 (2014)

(dismissing claim for reinstatement for lack ofsubject matter jurisdiction when pay claim was

jurisdictionally barred because "absent such a money mandating, statutory basis, [the plaintiff]

carurot assert her equitable reliefbased claims in this court").

Finally, Mr. Cosner's third claim for money damages is based on what he characterizes as

"crimes" against him. See Compl. at 9. As noted above, the "crimes" to which Mr. Cosner refers

appear to be grounded in his allegations that the Departrnent's investigation and resolution of his

EEO claim for breach of the Agreement were marked by fraud and negligence. This Court,

however, lacks jurisdiction under the Tucker Act over claims that sound in tort. Jackson v,

United States, 242 F . App'x 698,701 (Fed. Cir. 2007) {per curiam); see also 28 U.S.C.

$ 1491(a). Further, claims under the FTCA are also outside the Court's subject matter

jurisdiction. Robleto v. United States, 634 F. App'x 306, 308-09 (Fed. Cir. 2015) (per curiam);

see also 28 U.S.C. $ 1346(bXl).

CONCLUSION

For the reasons set forth above, the Coud lacks subject matter j urisdiction over Mr.

Cosner's claims. The govemment's motion to dismiss is therefore GRANTED and the

complaint is DISMISSED without prejudice. The Clerk of the Court is directed to enter

judgment accordingly. Each party shall bear its own costs.3

3

On November 3 0,2016, after the govemment's motion was filed and after Mr. Cosner had filed

his response, Mr. Cosner filed a motion requesting that his case be referred to the Court of

Federal Claims Bar Association's Pro Bono/Attorney Refenal Program. Docket No. 8. Because

the Court has determined that it lacks subject matter jurisdiction over Mr. Cosner's complaint,

that motion is DENIED. Additionally, on December 19,2016, Mr. Cosner attempted to file a

"Reply to Defendant[']s Motion to Dismiss," which would actually be a suneply to the

govemment's reply. The Rules do not provide for the filing ofa surreply. Therefore, the Clerk is

instructed to retum the document to Mr. Cosner unfiled.

IT IS SO ORDERED.

,l

utL

ELAINE D. KAPLAN

Judge