Patillo v. United States

ORIG!ilIAL

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No. 16-1568C (Pro Se)

(Filed: February 23,2017 | Not for Publication)

Kelvords: Pro Se Complaint; Tucker Act;

DANIEL C. PATILLO Longshore and Harbor Workers'

Compensation Program.

Plaintiff,

FILED

FEB 2 3 2017

THE LINITED STATES, U.S. COURT OF

FEDEML CI-AIMS

Defendant.

Daniel C. Paril/o, Newport, OR, Plaintiff Pro Se.

Kelly A. Krystyniak, Tial Attomey, U.S. Department of Justice, Civil Division, Commercial

Litigation Branch, Washington, DC, for Defendant, with whom were L. Misha Preheim,

Assistant Director, Robert E. Kirschman,./r., Director, and Joyce R. Branda, Deputy Assistant

Attorney General.

OPINION AND ORDER

KAPLAN, Judge.

The pro se plaintiff in this case, Daniel C. Patillo, filed a document, which the Clerk of

Court deemed a complaint, on November 23, 2016. See Docket No. 1. The document is hard to

decipher and does not appear to contain a cause of action or clear prayer for relief. On January

23,2017 , the govemment moved to dismiss the complaint for lack of subject matter jurisdiction

or, altematively, for failure to state a claim upon which relief can be granted. Docket No. 6. For

the reasons discussed below, the govemment's motion to dismiss for lack of subject matter

jurisdiction is GRANTED and Mr. Patillo's complaint is DISMISSED without prejudice,r

BACKGROUND

Mr. Patillo's allegations seem to relate to claims under the Longshore and Harbor

Workers' Compensation Act, 33 U.S.C. $$ 901-50, which is administered by the United States

Department of Labor.2 See. e.s., Compl. at 1. Pursuant to that Act, after a cliim is filed with a

I Mr. Patillo also filed a motion for

leave to proceed in forma pauperis. Docket No. 5. That

motion is GRANTED solely for purposes of dismissing the complaint.

2

The Longshore and Harbor workers' compensation Program is one ofthe Department of

Labor's "four major disability compensation programs which provide wage replacement

deputy commissioner in the compensation district in which the employee was injured, the

claimant, his employer, or any other interested party may request a hearing before an

administrative law judge. 33 U.S.C. $ 919. The administrative law judge then makes a

determination regarding the claimant's entitlement to disability compensation. See id. If a party

is dissatisfied with the administrative law judge's decision, that party may appeal the decision to

the Benefits Review Board. Id. $ 921(b). The Benefits Review Board is a five-member

administrative appeals body which determines whether decisions of administrative law judges

are supported by substantial evidence and are in accordance \,rith law. Id. Parties may petition for

review of final orders ofthe Benefits Review Board "in the United States court ofappeals for the

circuit in which the injury occuned, by filing in such court within sixty days following the

issuance ofsuch Board order." Id. $ 921(c).

In his complaint, Mr. Patillo appears to make references to administrative law judges and

proceedings before the Benefits Review Board. See Compl. at 1. He also makes assertions

regarding numerous lawyers and doctors involved in those proceedings. See id. Mr. Patillo

alleges "unconstitutional unethical conduct" and "enor[s]/mistakes," and appears to claim that

one ofhis previous lawyers was disbaned. Id. at 2. Additionally, he alleges that he received

"payment out of [the] Special Fund by [the] US Labor Department of Seattle WA in 1988-89."

Id. at 3.

As best the Court can understand, Mr. Patillo seems to be asserting that his disbaned

attomey "did not inform[]" him of interactions between the Department of Labor and a Dr.

Worthington. Id. Mr. Patillo also appears to allege that the Department of Labor's Seattle-based

director made a "decision based on unethical conduct" and that "cut[ting off] all medical service

for Plaintiff in March of 2011 . . . was unconstitutional." Id. Further, Mr. Patillo alleges that two

administrative lawjudges incorrectly determined that they did not have jurisdiction over his

ciaims. Id. at 4. He also asserts that a2016 decision issued by the Benefits Review Board, in

which it also concluded that it lacked jurisdiction, was incorrect and somehow tainted by

improper actions by Mr. Patillo's former attomeys and violated Mr. Patillo's "rights under the

13th [and] 14th [amendments to the] [C]onstitution and due process." Id.

Mr. Patillo's claims in this case may relate back to an injury he suffered while working

for a private employer in Portland, Oregon, in 1988. See Def.'s Mot. to Dismiss Pro Se Compl.

at 2. Thus, in 1995, an administrative law judge awarded Mr. Patillo permanent total disability

and medical benefrts under the Longshore and Harbor Workers' Compensation Act based on

injuries he incuned when he fell while working in the hold of a ship. Patillo v. Dir." Office of

Workers' Comp. Prosrams, BRB No. 01-0570,2002WL34716075, at *1 (Mar. 21,2002\.

benefits, medical fieatment, vocational rehabilitation and other benefits to certain workers . . .

who experience work-related injury." office of workers' compensation Proerams, United States

Department of Labor, https://www.dol.gov/owcp/owcpabot.htm (last visited Feb . 23,2017). Tlne

Division of Longshore and Harbor Workers' Compensation provides "technical assistance,

dispute resolution services and oversee[s] benefit delivery by the self-insured employers and

insurance carriers." Division of Lonqshore and Harbor workers' comoensation, united states

Department of Labor, https ://www.dol. gov/owcp/dlhwc/ (last visite d F eb. 23, 2017).

Because his employer was uninsured, the Departrnent ofLabor assumed liability for Mr. Patillo's

benefits and made payments out of the Special Fund. Id. (citing 33 U.S.C. $ 918(b).

In2014, Mr. Patillo submitted an offer to the Director of the Department of Labor's

Office of Workers' Compensation Programs to settle and close out his entitlement to future

medical benefits for a lump sum of $2,356,629.60. Patillo v. Houston Shio. Inc., BRB No. 16-

0203, https://www.dol.gov/brb/decisions/lngshore/unpublished/Sept16/16-0203.htm (Sept. 13,

2016). He also filed a request for a hearing before an administrative lawjudge. Id. The Director

declined Mr. Patillo's offer and moved for a summary decision from the administrative law

judge. Id. The administrative law judge granted the motion and dismissed Mr. Patilio's claim,

finding that he lacked authority to order the Special Fund to agree to a settlement. Id. Mr. Patillo

then filed an appeal with the Benefits Review Board. Id. It affirmed the administrative law

judge's decision on September 13,2016. Id.

DISCUSSION

In determining whether the Court has subject matter jurisdiction, it accepts as true all

undisputed facts in the pleadings and draws all reasonable inferences in favor of the plaintiff.

Trusted Inteeration" Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 201 l). However, ifa

movant disputes the basis of the 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, 11 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 Revnolds v. Armv & Air Force Exch. Serv.,846F.2d746,748 (Fed,.

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

requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 499, aff d, 98 F. App,x

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

("[T]he leniency afforded to a pro se litigant witi respect to mere formalities does not relieve the

burden to meet jurisdictional requirements." (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 department, 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. $ 1491(a). It serves as a waiver of sovereign immunity and a jurisdictional

gant, 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 plaintifi therefore, must establish

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

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

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

"plaintiff must look beyond the Tucker Act to identift a substantive source of law that creates

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

Here, the Court lacks subject matter jurisdiction over Mr. Patillo's complaint. He fails to

identify any constitutional, statutory, regulatory, or contractual basis for a right to money

damages from the United States. In other words, he fails to plead the existence ofa separate

source of substantive law giving rise to Tucker Act jurisdiction. Neither the Thirteenth nor

Fourteenth Amendments are money-mandating sources of substantive law. Johnson v. United

States, 79 Fed. Cl. 769, 774 (2007) (Thirteenth Amendment); LeBlanc v. United States, 50 F.3d

1025,1028 (Fed. Cir. 1995) (Fourteenth Amendment). Moreover, to the extent Mr. Patillo is

asserting claims against individuals, such as the Director who oversees the Special Fund, or the

attomeys and physicians involved in his workers' compensation case, those claims must be

dismissed as the Court has nojurisdiction over claims against any defendant other than the

United States. See United States v. Sherwood,312 U.S. 584, 588 (1941) C'Ulf the relief sought is

against others than the United States the suit as to them must be ignored as beyond the

jurisdiction of the court."); Jiron v. United States, 118 Fed. Cl. 190, 198 99 (2014) ("lt is well

settled that the United States is the only proper defendant in the United States Court ofFederal

Claims." (quotation omitted)). Thus, because Mr. Patillo has failed to allege a substantive source

oflaw creating the right to recovery ofmoney damages from the United States, the Court lacks

subject matter jurisdiction over his complaint.

Additionally, it appears that what Mr. Patillo is actually seeking is a review of the

decision ofthe Benefits Review Board. Decisions ofthe Benefits Review Board, however, are

only appealable to the court ofappeals for the circuit in which the underlying work injury

occurred. 33 U.S.C. $ 921(c). The Court ofFederal Claims is not a court of appeals. Therefore,

the Court lacks jurisdiction to review the Board's decision.l

CONCLUSION

For the reasons discussed above, the govemment's motion to dismiss is GRANTED and

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

accordingly. Each side shall bear its own costs.

I The federal statute authorizing the transfer of a case to cure a want ofjurisdiction, 28 U.S.C.

$ 63 , does

1 1 not provide a basis for the Court to transfer Mr. Patillo' s complaint to the

appropriate court ofappeals. That statute requires a court to transfer an action over which it lacks

subject matter jurisdiction to a court in which the action could have been brought at the time it

was originally filed, when doing so is in the interest ofjustice. Id. Mr. Patillo's complaint,

however, could not have been brought in the court of appeals at the time it was filed here.

Petitions for review ofa decision of the Benefits Review Board must be filed in the court of

appeals "within sixty days following the issuance of such Board order." 33 U.S.C. $ 921(c); see

also Felt v. Dir.. Office of Workers' Comp. Programs, 11 F.3d 951,952 (9th Cir. 1993) (holding

that sixty-day time limit of 33 U.S.C. $ 921(c) is a jurisdictional requirement). The Board's

decision issued September 13,2016. See Patillo, BRB No. 16-0203. The sixty-day window

therefore closed November 12,2016. Mr. Patillo's complaint was not filed in the Court o1-

Federal Claims until November 23, 2016. Docket No. 1. It thus could not have been brought in

the court of appeals at that time.

IT IS SO ORDERED.

, /u-

ELAINE D. KAPLAN

Judge