Kemper

@RlGlilAt

In the United States Court of Federal CIaims

No. 17-2033c F l L E D

Filed: llllay 4, 2018

MAY 4 2018

KEVIN KEMPER,

plaintiff’ m § P|aintiff; ln Forma

Pauperis; Nlotion to

Dismiss; Subject Matter

Jurisdiction; Breach of

Contract CIaim; Tort C|aim.

v.

UN|TED STATES,

Defendant.

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Kevin Kemper, m Y, Phoenix, AZ.

Richard Schroeder, Tria| Attorney, Commercial Litigation Branch, Civi| Division,

United States Department of Justice, Washington, DC for defendant. With him Were Tara

K. Hogan, Assistant Director, Commercia| Litigation Branchl Civi| Division, Robert E.

Kirschman, Jr., Director, Commercia| Litigation Branch, Civil Division, and Chad A.

Readler, Acting Assistant Attorney Genera|.

OP|NlON

HORN,J.

On December 22, 2017, L § plaintiff Kevin Kemper filed a complaint With this

court in the above-captioned case. P|aintiff separately filed an App|ication to Proceed |_n

Forma Pauperis that same day. |n a sometimes confused complaint, plaintiff appears to

be alleging that an office Within the United States Department of Veterans Affairs (VA)1

acted fraudulently When it allegedly stated on its Website that it “vvo|d talk to prospective

employers and get interviews for the net[Z],” but then “c|aimed that they did none of the

services included on their Web site.” P|aintiff concludes in his complaint: “[That is

fraudulent.]” Plaintiff also appears to be alleging in his complaint that the “Department of

voc Rehab" breached an agreement to find paid volunteer Work for plaintiffl P|aintiff states

in his complaint

1 F’|aintiffl at timesl refers in his complaint to the VA as the “department of Vocational

Rehabilitation," the “Department of voc Rehab," or the "Department of Voc Rehab."

2 Plaintiff’s unfinished and misspel|ed Words, unusual spacing, fragments of sentences,

brackets, and capitalization Which appear in his complaint have been included in this

opinion unchanged

FEDERAL CL.AIMS

The Department of voc Rehab Wou|d get the P|aintiff a volunteer job Which

the VA would pay for. The department of voc Rehab did neither_they found

no volunteer job for the P|aintiff and did not coordinate 3 months payment

for the P|aintiff.

P|aintiff further states in his compiaint that he “seeks general damages of $1900, t he total

of three months of volunteering that the P|aintiff was available for and he seeks Punitive

damages in the amount of $10,000."

FiNDlNGS OF FACT

According to plaintiff, the “Veteran’s Administration has a department of Vocationai

Rehabilitation which is supposed to help veterans get counseling when sought and a iob

aiso, when sought." Piaintiff alleges that he is “s|ight|y handicapped and has few

documents availabie to give prospective employers which cause his employment

applications to be ignored.” He then states that he “examined the VA’s web site and

reviewed the offerings for veterans," and that “{o]ne of the offerings was to work with the

vet and heip him or her get employment.”

P|aintiff also states in his complaint that he attended a one~time meeting with “Nir.

Arnett,” a “counseior” at the VA, and then told l\/ir. Arnett that he “Wanted help finding retail

stores that would interview him per the depa:tment’s Web site.” P|aintiff alleges that:

The counselor [lVlr. Arnett] said he knew nothing of this web site and his Voc

Ed office did not talk to anyone in the business Wor|d. Their only service

Was to contact federal or state offices to see who could use a volunteer for

fuii time empioyment for three months duration

lVlr. Arnett also allegedly stated in the meeting, according to plaintiff's complaint, that “the

VA Wou|d pay the candidates salary,” and that “he would have a contract drawn up and

the P|aintiff’s volunteering was to begin as soon as the contract was signed and the

counselor, lVlr. Arnett himself, found an office that would take the P|aintiff as a volunteer.”

in response to lVlr. Arnett’s description of the alleged VA service, plaintiff states in his

complaint that he “was agnast as this was the very last thing he desired~~it was ~~from lV|r.

Arnett’s perspective~~This approach to earning money or none."

“VVithin a week” of his meeting with lVlr. Arnett, plaintiff contends in his complaint

that Mr. Arnett referred plaintiff to a “contractor" which “could use a volunteer to stand ali

day and load food containers into bags for the hungry." P|aintiff, however, “dec|ined this

position,” because, upon visiting the “contractor," he “found it a place of 100% chaos."

Then, a “feW Weeks |ater," piaintiff states in his complaint that “on his own accord,” he

found a “tutoring need at the department of Socia| Services” and unsuccessfully

attempted to fill out an electronic application for the “tutoring need .” Piaintiff states in his

complaint, that "[t]Wo weeks iater, Nlr. Arnett either called or Wrote to the P|aintiff and

indicated the P|aintiff was thereby [sic] removed from the volunteer program.” P|aintiff

then alleges for the first time in his complaint that he had entered into a “written

agreement" with the “Department of Voc Rehab” and lV|r. Arnett Plaintiff specifically

states that “[t]he counseior, |Vlr. Arnett never did contact any state or federai office

seeking a volunteer position for the P|aintiff, per the written agreement the Plalntiff had

With the department [“Department of Voc Rehab"j and the counselor, lVlr. Arnett.”

On January 30, 2018, roughly a month after plaintiff’s complaint was filed in this

court plaintiff filed a four-page document titled “APPELLANT’S BRiEF UN|TED STATES

COURT OF APPEALS FOR VETERANS CLAilVlS No. 17-15523 & cv~17-00375 PHX

GN!S KEV|N KEl\/iPER, Appe||ant." Displayed on the third to last page of this document

is the date December 11, 2017. No motion or explanation was included with plaintiff’s

filing of this four-page document The document was notified in compliance with the Ru|es

of the United States Court of Federal Claims Rules (RCFC), inciuding, significantly,

missing proof of service on the defendant as required by RCFC 5.3 (2017). Nonetheiess,

on February 6, 2018, as a courtesy to the g_rg _s_e plaintiff, the undersigned ordered that

plaintiff’s four-page document be filed in the above-captioned case, which provided with

access to the defendant

'i'he first page of the February 6, 2018 document appears to be a cover page,

which is labeled at the top of the page as “APPELLANT’S BR|EF.” The cover page

contains information regarding an apparent appeal by plaintiff to the United States Court

of Appeais for Veterans Claims, although no case number for the appeal is listed

anwvhere in the document Notably, a search of the electronic filing system for the United

States Court of Appeals for Veterans Claims listed no case for plaintiff. The cover page

of the document filed with the court fists plaintiff as the appellant and the Secretary of

Veteran’s Affairs as the appellee and that plaintiff was seeking $1,900.00 of

compensatory damages and $19,000,000.00 in punitive damages The cover page also

states that the “Originating Court Case" was a case before the United States District Court

for the District of Arizona in Phoenix under case number cv-17-00375-PHX-Gl\/i3, which,

according to the cover page was subsequently appealed to the United States Court of

Appeals for the Ninth Circuit as case number 17-15523.3 The next three pages of the

February 6, 2018 four-page document contain rambling, disjointed, and vague

allegations, including pialntiff's allegation that Mr. Arnett signed a contract that he,

plaintiff, also had signed. Piaintiff states:

[S]taff of the Voc Rehab employment program failed to fuifili an alleged pto

"get the Plaintiff a volunteer job wich the VA would pay for." --- this

3 Upon review of the electronic fiiing system for the federai courts, piaintiff’s complaint

before the District Court for the District of Arizona, as noted in the February 6, 2018

document was dismissed for lack of subject matter jurisdiction and for failure to state a

claim. See Kemper v. United States Dep't of Vocational Rehab., No. 17-00375-Pi-|X-

GlVlS, at 4 (D. Ariz. lVlar. 9, 2017) (“Plaintiff’s First Amended Complaint faiis to state a

claim on which relief may be granted and fails to state a basis for this Court to exercise

jurisdiction it is therefore dismissed pursuant to 28 U.S.C. § 1915(e)(2)."), appeal

dismissed §frivolous, No. 17-15523 (ch Cir. June 14, 2017).

3

ALLEGED PROl\/ilSE came from a WRITTEN CONTRACT created by the

counselor, Arnett And Arnett signed it and so did iVlr. Kemper, the plaintiff.

That e the doubt of alleged promise and makes it a legal contract albeit a

very absurd contract Which the plaintiff brought to the a of arnett--Who said

that is the way the d creates contracts

Further in the February 6, 2018 filing, plaintiff refers to this alleged contract as a “dumb

but iega| contract,” and aiso states:

[i]t ls a fact that all employees in government offices Who write any contracts

are PRESUl\/lED to be qualified and authorized to write such contracts

Example; when a person is stopped by the police or sheriff, the law

presumes that the poiice and sheriff have j and thus, the right to do what

they are about to do and their supervisor, later --and the judge iater even,

will decide n the legality of the acts taken by the police and sheriff.

On February 20, 2018, defendant United States filed a motion to dismiss the

complaint currently before this court pursuant to RCFC 12(b)(1) (2017), aileglng that

plaintiff’s complaint is barred by the doctrine of coiiateral estoppel because plaintiff

previousiy had asserted the “same claims" before Judge Lettow aiso of this court in

Kemper v. United States, No. 17-768C1 2017 VVL 3274942 (Fed. Cl. Aug. 2, 2017)

(Kemger l). Defendant characterizes plaintiffs two claims as a “fraud” ciaim and a “ciaim

that the VA allegedly failed to provide him [p|aintiffj with particular benefits in his search

for voiunteer employment.”

Defendant also argues, in the alternativel referring numerous times to Judge

Lettow’s decision in Kemper ll that this court, similariy, should dismiss plaintiffs complaint

“because it does not possess subject-matter jurisdiction to entertain Mr. Kemper’s

ciaims.” Defendant specificaliy argues that Judge Lettow in Kemper l “correctly heid" that

plaintiffs breach of contract claim is “based upon his status as a veteran and the benefits

allegediy owed to him by the VA," and, thus, is not a claim within this court’s jurisdiction

(citing Kemper i, 2017 WL 3274942, at *2). With regard to piaintlff’s fraud claim, defendant

argues that Judge Lettow in Kemp_er l also “correctly heid" that this court “does not have

jurisdiction over lVir. Kemper’s fraud claim because such an ai|egation is based in tort.”

(clting Kemper f, 2017 WL 3274942, at *2). Regarding plaintiffs request for punitive

damages, defendant also found that Judge Lettow in Kemper l heid that it “does not have

jurisdiction to grant” plaintist request for punitive damages (citing Kemper ll 2017 Wi.

3274942, at *2). Defendant then asserts that, as Judge i_ettow held in Kemper l, “the

appropriate avenue for lVlr. Kemper to obtain review of VA decisions would have been for

lV|r. Kemper to raise them with the Secretary of the VA (citing 38 U.S.C. § 511(a))." (citing

Kemger l, 2017 WL 3274942, at *2). Defendant then states that as Judge Lettow he|d,

“if |Vlr. Kemper was dissatisfied with the results, his statutory appeal path Wou|d be to “the

Board of Veterans Appeals, 38 U.S.C. § 7104,’ then to ‘the Court of Appeals for Veterans

C|aims, 38 U.S.C. § 7252(a),’ and then ‘the Federai Circuit, 38 U.S.C. § 7292(c).’" (citing

Kemper |, 2017 WL 3274942, at *2). As of iVlay 4, 2018, plaintiff has failed to file a

response to defendants motion to dismiss and the time under the Ru|es of the Court of

Federai Claims to file a response has passed. §ge RCFC 7.2 (2017).

DiSCUSSlON

The court recognizes that plaintiff is proceeding p_rp_ s_e_ When determining whether

a complaint filed by pg g plaintiffs is sufficient to invoke review by a court, U Y

plaintiffs are entitled to a more iiberal construction of their pleadings E Haines v.

Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a p_r_g §§

complaint be heid to “iess stringent standards than formal pleadings drafted by lawyers”),

Lh’g denied, 405 U.S. 948 (1972); see also Erlckson v. Pardus, 551 U.S. 89, 94 (2007);

Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Este|ie v. Gamb|e, 429 U.S. 97, 106 (1976),

Le_h_fg denied, 429 U.S. 1066 (1977); l\/iatthews v. United States 750 F.3d 1320, 1322

(Fed. Cir. 2014); Diamond v. United States 115 Fed. Cl. 516, 524 (2014), Aff;c_i, 603 F.

App’x 947 (Fed. Cir.)l M denied, 135 S. Ct. 1909 (2015). Hovvever, “there is no ‘duty

jon the part] of the trial court . . . to create a claim Which [piaintiff] has not spelled out in

his [or her] pleading . . . Lengen v. United States 100 Fed. Cl. 317, 328 (2011)

(alterations in original) (quoting Scoqin v. United States 33 Fed. Ci. 285, 293 (1995)

(quoting Clark v. Nat’l Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); §§§

also Bussie v. United States, 96 Fed. Cl. 89, 94, _a”ff;g, 443 F. App’x 542 (Fed. Cir. 2011);

Nlinehan v. United States, 75 Fed. Cl. 249, 253 (2007). “While a Qr_Q Y_ plaintiff is held to

a less stringent standard than that of a plaintiff represented by an attorney, the p_rg _s_e_

piaintlff, nevertheless bears the burden of estabiishing the Court’s jurisdiction by a

preponderance of the evidence." Riles v. United States, 93 Fed. Cl. i63, i65 (2010) (citing

Hughes v. Rowe, 449 U.S, at 9; and Tavlor v. United States 303 F.3d 1357, 1359 (Fed.

Cir.) (“P|aintiff bears the burden of showing jurisdiction by a preponderance of the

evidence."), reh’q and reh’q _eg banc denied (Fed. Cir. 2002)); see also Shelkofskv v.

United States, 119 Fed. Cl. 133, 139 (2014) (“[VV]hiie the court may excuse ambiguities

in a pro se plaintiffs complaint, the court “does not excuse [a complaint’s] failures.”’

(quoting Henke v. United States 60 F.3d 795, 799 (Fed. Cir. 1995)); Harrls v. United

States, 113 Fed. Cl. 290, 292 (2013) (“Aithough piaintiff’s pleadings are held to a less

stringent standard, such leniency ‘with respect to mere formalities does not relieve the

burden to meetjurisdictional requirements.’” (quoting lvlinehan v. United States 75 Fed.

Cl. at 253)).

ln the above-captioned case, as noted above, the pig §§ plaintiff, Nlr. Kemper, filed

an Applicatlon to Proceed |_n Forma Pauperis. in generall to provide access to this court

to those who cannot pay the fiiing fees mandated by Ruie 77.1(c) (2017) of the RCFC,

28 U.S.C. § 1915 (2012) permits a court to allow a plaintiff to fiie a complaint without

payment of fees or security, under specific circumstances Section 1915(a)(1) states that:

Subject to subsection (b), any court of the United States may authorize the

commencement prosecution or defense of any suit, action or proceeding,

civil or criminal, or appeal therein, without prepayment of fees or security

therefor, by a person who submits an affidavit that includes a statement of

all assets such prisoner[“] possesses [and] that the person is unable to pay

such fees or give security therefor. Such affidavit shall state the nature of

the action, defense or appeal and affiant's belief that the person is entitled

to redress

28 U.S.C. § 1915(a)(1). Therefore, the statute at 28 U.S.C. § 1915(a)(i) requires a person

to submit an affidavit with a statement of all the applicant’s assets and that the affidavit

state the nature of the action, defense or appeal and affiant's belief that the person is

entitled to redress W id_.

When enacting the ip forma pauperis statute, 28 U.S.C. § 1915, Congress

recognized that “‘a litigant whose filing fees and court costs are assumed by the public,

unlike a paying litigant lacks an economic incentive to refrain from filing frivolous

malicious or repetitive lawsuits.”’ Denton v, Hernandez1 504 U.S. 25, 31 (1992) (quoting

Neitzke v. Williams 490 U.S. 319, 324 (1989)); see also lVlcCullouqh v. United States 76

Fed. Cl. 'i, 3 (2006), appeal dismissed, 236 F. App’x 615 (Fed. Cir.), [§h_’g denied (Fed.

Cir.), @t_._ denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e)

in the ip forma pauperis statute, which allows courts to dismiss lawsuits determined to be

“frivolous or malicious." 28 U.S.C. § 1915(e). The United States Supreme Court has found

that “a court may dismiss a claim as factually frivolous only if the facts alleged are ‘clearly

baseless’ . . . a category encompassing allegations that are ‘fanciful’ . . . ‘fantastic' . . .

and ‘delusiona| , . . Denton v. l-lernandez, 504 U.S. at 32-33 (intema| citations omitted);

see also l\/icCu|louqh v. United States 76 Fed. Cl. at 3; Schaqene v. United Statesl 37

Fed. Cl. at 663. Courts, however, should exercise caution in dismissing a case under

section 1915(e) because a claim that the court perceives as likely to be unsuccessful is

not necessarily frivolous See Denton v. Hernandez, 504 U.S. at 33. As stated by the

4 A number of courts have reviewed the words of 28 U.S.C. § 1915(a)(1), regarding m

forma pauperis applications by non-prisoner litigants in federal courts and have

concluded that Congress did not intend for non-prisoners to be barred from being able to

proceed i_n forma pauperis in federal court See, e.g., Flovd v. United States Postal Serv.,

105 F.3d 274, 275-76 (6th Cir.), Mg denied (6th Cir. 1997); Schagene v. United States

37 Fed. Cl. 661, 663 (1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998); W M

|n re Prison Litidation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (discussing how

to administeer forma pauperis rights to a non-prisoner, thereby acknowledging the rights

of non-prisoners to apply for ip forma pauperis status); Leonard v. Lacy, 88 F.3d 181, 183

(2d Cir. 1996) (using “sic" following the word “prisoner" in 28 U.S.C_ § 1915(a)(1)

seemingly to indicate that the use of that word was too narrow); Smith v. United States,

113 Fed. Cl. 241, 243 (2013); Powell v, Hoover, 956 F. Supp. 564, 566 (lVl.D. Pa. 1997)

(holding that a “fair reading of the entire section [28 U.S.C. § 1915(a)(1)] is that it is not

limited to prisoner suits."). lV|oreover, 28 U.S.C. § 1915(a)(1) refers to both “person" and

“prisoner.” The word “person” is used three times in the subsection, while the word

“prisoner" is used only once. This court therefore, finds that the single use of the word

“prisoner" in the language of 28 U.S.C. § 1915(a)(1) was not intended to eliminate a non-

prisoner from proceeding in federal court i_p forma pauperis provided that the civil litigant

can demonstrate appropriate need Any other interpretation is inconsistent with the

statutory scheme of 28 U.S.C. § 1915.

United States Supreme Court “a finding of factual frivolousness is appropriate when the

facts alleged rise to the level of the irrational or the wholly incredible, whether or not there

are judicially noticeable facts available to contradict them." |_d_.

The standard in 28 U.S.C. § 1915(a)(1) for i_p forma pauperis eligibility is “unabie

to pay such fees or give security therefor.” Determination of What constitutes “unable to

pay" or unable to “give security therefor," and, therefore, whether to allow a plaintiff to

proceed ip forma pauperis is left to the discretion of the presiding judge, based on the

information submitted by the plaintiff or plaintiffs See, e.q., Rowiand v. Cal. lVlen’s Colonv1

Unit ll iVlen’s Advisorv Council, 506 U.S. 194, 217-18 (1993); Roberson v. United States

115 Fed. Cl. 234, 239, appeal dismissed, 556 F. App’x 966 (Fed. Cir. 2014); Fuentes v_

United States 100 Fed. Cl. 85, 92 (2011). This court and its predecessors were

established to make available a user friendly forum in Which plaintiffs can submit their

legitimate claims against the sovereign, limited only by the legislative decision to waive

sovereign immunity as to the types of claims allowed in fact prominently posted at the

entrance to this courthouse are the Words of Abraham l_incoin: “lt is as much the duty of

government to render promptjustice against itself, in favor of citizens as it is to administer

the same, between private individua|s.”

interpreting an earlier version of the i_n forma pauperis statute, the United States

Supreme Court offered the following guidance:

We cannot agree with the court below that one must be absolutely destitute

to enjoy the benefit of the statute. We think an affidavit is sufficient which

states that one cannot because of his poverty “pay or give security for the

costs . . . and still be able to provide” himself and dependents “with the

necessities of |ife.” To say that no persons are entitled to the statute's

benefits until they have sworn to contribute to payment of costs the last

dollar they have or can get and thus make themselves and their

dependents wholly destitute, would be to construe the statute in a way that

would throw its beneficiaries into the category of public charges The public

would not be profited if relieved of paying costs of a particular litigation only

to have imposed on it the expense of supporting the person thereby made

an object of public support Nor does the result seem more desirable if the

effect of this statutory interpretation is to force a litigant to abandon what

may be a meritorious claim in order to spare himself complete destitution.

We think a construction of the statute achieving such consequences is an

inadmissible one.

Adkins v. E.l. DuPont de Nemours & Co,, 335 U.S. 331, 339-40 (1948) (omissions in

original). in Fiebeikorn v. United States for example, a judge of the United States Court

of Federal Claims indicated that:

[T]he threshold for a motion to proceed i_n forma pauperis is not high: The

statute requires that the applicant be ‘unable to pay such fees.’ 28 U.S.C.

§ 1915(a)(1). `l'o be ‘unab|e to pay such fees‘ means that paying such fees

would constitute a serious hardship on the plaintiff, not that such payment

would render plaintiff destitute.

Fiebe|korn v. United States 77 Fed. Cl. 59, 62 (2007); see also Coner|v v. United States

No. 18-3100, 2018 WL 1391912, at *2 (Fed. Cl. lVlar. 20, 2018) (discussing standard to

proceed i_n forma pauperis and denying plaintiffs ip forma pauperis application); § M

lVchermott v. United States 130 Fed. Cl. 412, 414 (2017) (quoting Fiebelkorn v. United

States 77 Fed. Cl. at 62); see also Fuentes v. United States 100 Fed. Cl. at 92; Hayes

v. United States 71 Fed. Cl. 366, 369 (2006).

ln his Application to Proceed |_n Forma Pauperis (Application), plaintiff indicates

that he is currently unemployed and has been unemployed for “several years.” He also

states that he receives “social security $1200 a mo for 100% OF LlVlNG EXPENSES.”

Further, in response to question number four of the Application, which asks the applicant

“[h]ow much money do you have in cash or in a checking, savings or inmate account?"

plaintiff responds “$133 VA disability check.” Plaintiff also states that he has regular

monthly “rent, gas electricity, phone” expenses Plaintiff, however, fails to provide the

amount of each monthly expense, as required by the Application. Piaintiff also fails to

indicate, as required by the Application, whether he has received in the past twelve

months money from any “[b]usiness, profession, or other form of self-employment” “[r]ent

payments interest or dividends," or “[p]ensions annuities or life insurance payments.”

Without a properly filled out Application, the court cannot evaluate Whether plaintiff has

sufficient surplus income to afford the court filing fee, or whether “paying such fees Would

constitute a serious hardship on the plaintiff." Fiebelkorn v. United States 77 Fed. Cl. at

62. Plaintiff’s Application, thus Would fail because plaintiff has not demonstrated that he

is unable to pay the fees as required by 28 U.S.C. § 1915(a)(1). As discussed in detail

below, however, his Application is moot because his complaint is being dismissed as

barred by the collateral estoppel doctrine and because this court lacks subject matter

jurisdiction over plaintiffs claims5

5 The court notes that plaintiff is a frequent filer of complaints in federal courts As of 201 8,

plaintiff has filed at least five previous lawsuits and one appeal in federal courts Of those

filings two were noted above, namely, plaintiffs complaint before the District Court for

the District of Arizona, which was dismissed for a lack of subject matter jurisdiction and

for failure to state a claim, and his subsequent appeal to the Ninth Circuit Court of

Appeals, Which was dismissed as frivolous See Kemper v. United States Dep’t of

Vocational Rehab., No. 17-00375-Pl-lX-Gl\/|S, at 4 (D. Ariz. lVlarch 9, 20l7), appeal

dismissed § frivolous No. 17-15523 (9th Cir. June 14, 2017). Of the remaining filings

one complaint Was filed in this court and assigned to Judge Lettow of this court who

dismissed plaintiffs complaint for failure to state a claim and for lack of subject matter

jurisdiction w Kemper l, 2017 WL 3274942, at *3 (“Accordingly, the court lacks

jurisdiction over l\/lr. Kemper’s claims Dismissal is appropriate pursuant to 28 U.S.C.

§ 1915(e), which provides that ‘the court shall dismiss the case at any time’ upon

determining that the action, among other things ‘fai|s to state a claim on which relief may

be granted.’"). Another complaint filed in the District Court for the Eastern District of

Ca|ifornia, was dismissed because plaintiff did not comply with a court order to file an

amended complaint and apparently did not take any further action to prosecute his case.

See Kemper v. Cai. State Univ., Sacramento, No. 217-CV-0895-GEB-AC-PS, 2017 VVl_

4699998, at *1 (E.D. Cai. Oct. 19, 2017) (“Therefore, lT lS HEREBY RECOlVll\/EENDED

that this action be dismissed without preiudice, for lack of prosecution and for failure to

8

As noted above, defendant alleges that plaintiffs complaint is barred under the

collateral estoppel doctrine by Judge Lettow’s decision in Kemper l. The doctrine of res

judicata “includes the two related concepts of claim preclusion and issue preclusion.”

Nasolak Coatlnq Corp. v. Nvlok Corp.. 522 F.3d 1320, 1323 (Fed. Cir. 2008). As

articulated by the United States Supreme Court the rule of issue preclusion, or collateral

estoppel, precludes a party from re-litigating an issue that was “|itigated and resolved in

a valid court determination essential to the prior judgment." New l-iampshire v. Nlaine,

532 U.S. 742, 748-49, Lh’g denied, 533 U.S. 968 (2001). |n addition, “[u]nder the

judicially-developed doctrine of collateral estoppel, once a court has decided an issue of

fact or law necessary to its judgment that decision is conclusive in a subsequent suit

based on a different cause of action involving a party to the prior litigation." United States

v. i\llendoza, 464 U.S. 154, 158 (1984); see also Allen v. lV|cCurrv, 449 U.S. 90, 94 (1980)

(“U nder collateral estoppel, once a court has decided an issue of fact or law necessary to

its judgment that decision may preclude relitigation of the issue in a suit on a different

cause of action involving a party to the first case.”). “When an issue of ultimate fact has

once been determined by a valid and final judgment that issue cannot again be litigated

between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443

(1970). The United States Supreme Court has explained that issue preclusion guards

against “the expense and vexation attending multiple lawsuits conserves judicial

resources and fosters reliance on judicial action by minimizing the possibility of

inconsistent decisions.” i\llontana v. United States 440 U.S. 147, 153-54 (1979) (footnote

omitted). The Supreme Court also more recently stated:

issue preclusion bars successive litigation of "an issue of fact or law" that

“is actually litigated and determined by a valid and final judgment and . . .

is essential to the judgment." Restatement (Second) of Judgments § 27

(1980) (hereinafter Restatement). if a judgment does not depend on a given

determination, relitigation of that determination is not precluded §, § 27,

Comment h.

Bobby v. Bies, 556 U.S. 825, 834 (2009); see also Knowles Eiecs LLC v. Cirrus i.ooic,

ms, 883 F.3d 1358, 1370 (Fed. Cir. 2018) (“[c]ollateral estoppel, like the reiated doctrine

of res judicata, serves to ‘relieve parties of the cost and vexation of multiple law-suits

comply with the court’s order.”). Two additional complaints were both filed in the District

Court for the District of Columbia. One Was dismissed without prejudice and without any

further explanation. See Kemper v. U.S. Dep’t of Voc Rehab, No. 17-2051-UNA, at 1

(D.D.C. Nov. 23, 2017) (“[l]t is ORDERED that plaintiffs application to proceed in forma

pauperis [Dkt. #2] is GRANTED, and this case is DlSl\/llSSED without prejudice.”). The

other was dismissed for lack of subject matter jurisdiction. See Kemper v. U.S. Dep’t of

Educ. et al., No. 17-683, at 6 (D.D.C. Jan. 4, 2018) (“[S]ubject matter jurisdiction is

lackingl Consequently, Defendants’ motion to dismiss under Ruie 12(b)(1) is GRANTED,

Plaintiff’s motions are DENiED, and the case is DlSlVllSSED without prejudice.”). Alsol

on Nlay 26, 2015, plaintiff filed a complaint in the District Courtforthe District of Columbia,

which was voluntarily dismissed on July 18, 2016. See Kemper v. U.S. Dep’t of the

|nterior, No. 15-077i-APi\/i (D.D.C. .luly 18, 20i6).

9

conserve judicial resources and, by preventing inconsistent decisions encourage

reliance on adjudication.”’ (quoting United States v. l\/lendoza, 464 U.S. at 'i58)).

The Court of Appeals for the Federal Circuit set out four guidelines for determining

whether issue preclusion is appropriate:

issue preclusion bars a cause of action when four conditions are met: “(t)

the issue is identical to one decided in the first action; (2) the issue was

actually litigated in the first action; (3) resolution of the issue was essential

to a final judgment in the first action; and (4) the plaintiff had a full and fair

opportunity to litigate the issue in the first action.”

Laquna i-lermosa Corp. v. United States 671 F.3d 1284, 1288 (Fed. Cir. 2012) (quoting

ln re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994); see also Biafora v. United States

773 F.3d 1326, 1333 (Fed. Cir. 2014).

The Court of Appeals for the Federal Circuit also has explained that principles of

issue preclusion may apply to questions ofjurisdiction. See Amqen lnc. v, United States

lnt’l Trade Comm’n, 902 F.2d 1532, 1536 n.5 (Fed. Cir. 1990) (“Disrnissals for lack of

jurisdiction may be given § judicata effect as to the jurisdictional issue.").6 Similar|y,

judges of the United States Court of Federal Claims have indicated that under the

doctrine of issue preclusion, or collateral estoppel, this court may be precluded from

exercising subject matter jurisdiction in an ongoing action when the same action, based

on the same facts has been previously dismissed on jurisdictional grounds and the

jurisdictional flaw that necessitated dismissal on the first suit has not been cured. §ge_

Lowe v. United States, 79 Fed. Cl. 218, 228 (2007) (“lt is beyond cavil that the issue of

collateral estoppel goes to subject matterjurisdiction, and may be pleaded as a 12(b)(1)

motion.” (citing Schwasinqer v. United States 49 F. App’x 888 (Fed. Cir. 2002) (affirming

lower court’s dismissal of a plaintiffs third complaint on the basis of collateral estoppel

because plaintiffs two prior complaints were identical to the third complaint and had been

dismissed for lack of subject matterjurisdiction)); see also Goad v. United States 46 Fed.

Cl. 395, 398, appeal dismissed, 243 F.3d 553 (Fed. Cir.), pp[t_. denied, 531 U.S. 1015

(2000). (“[l]f the second-filed claim contains new information which cures thejurisdictional

defect fatal to the first-filed suit then the second-filed suit presents a differentjurisdictional

issue and res judicata does not appiy.”). Although “the mere dismissal of a claim for lack

of subject matter jurisdiction does not operate as an adjudication of that claim on the

merits” a dismissal for lack of subject matterjurisdiction retains "some preclusive effect”

unless afterthe initial dismissal, a plaintiff has cured the jurisdictional deficiency identified

in the first suit See Lowe v. United States 79 Fed. Ci, at 229 (emphasis in original).

5 The court notes that in an unpublished opinion, the United States Court of Appeals for

the Federal Circuit stated that “[i]t is well settled that the principles of res judicata apply

to questions ofjurisdictlon as well as to other issues" Citizens Elecs. Co., Ltd. v. OSRAl\/l

GmBl-l, 225 F. App’x 890, 893 (Fed. Cir. 2007) (citing American Sur. Co. v. Baldwin, 287

U.S. 156, 166, 53 S. Ct. 98, 77 L. Ed. 231 (1932)).

10

Beginning with the first condition outlined by the Federal Circuit in Laguna

Hermosa Corp. v. United States 671 F.3d 1284 for the collateral estoppel doctrine to

apply, that the issue is identical to the one previously litigated, the court finds that this

condition is met in the above-captioned case. Upon review of plaintiffs current complaint

and his complaint previously filed in Kemper l before Judge Lettow of this court which

was attached to defendants motion to dismiss it appears as if plaintiff cut and pasted his

allegations from his Kemper l complaint into his complaint currently before this court

Plaintiffs current complaint mirrors the complaint filed in Kemper i, but for minor word

changes with no significant or meaningful variance For example, plaintiff alleges word»

by~word in both complaints using the word “wold” instead of “would,” that he “exarnined

the VA’s web site and reviewed the offerings for veterans,” and that the website allegedly

stated that “the vet’s ofnce of Vocational Rehabilitation wold talk to prospective employers

and get interviews," for the applying veteran Plaintiff also identically alleges in both

complaints under the section entitled “lSSUES PRESENTED FOR REVlEW,” that “[t]he

Department of Voc Rehab claimed that they did none of the services included on their

web site [That is fraudulent.]” with the same capitalization and brackets With regard to

plaintiffs breach of contract claim, plaintiff also identically alleges in both complaints that

he had a “written agreement” with the “department and the counselor, lV|r. Arnett."

Additionally1 plaintiff states in both complaints that “[t]he Department of voc Rehab would

get the Plaintiff a volunteerjob which the VA would pay for. The department of voc Rehab

did neither --they found no volunteerjob for the Plaintiff and did not coordinate 3 months

payment for the Plaintiff.”

“As to the second condition, ‘the requirement that the issue have been actually

decided is generally satisfied if the parties to the original action disputed the issue and

the trier of fact decided it.’" Laduna Hermosa Corp. v. United States 671 F.3d at 1288.

The court finds that this second condition also is met in plaintiffs case. 'i`he parties to the

above-captioned case are the same parties as those litigating in Kemper l. ivloreover,

Judge Lettow in Kemper l previously decided that this court “lacks jurisdiction over lVlr.

Kemper’s claim that the VA allegedly failed to provide him with particular benefits in his

search for volunteer employment,” the same claim plaintiff now seeks to assert in the

above~captioned case. _S_e_p Kemper l, 2017 WL 32749242, at *2. Judge Lettow also found

that “the court does not have jurisdiction over lVlr. Kemper’s fraud claim because such an

allegation is based in tort" the second claim lV|r. Kemper seeks to assert in the case

currently under review by this court. g

With regard to the third condition of the collateral estoppel doctrine, that the

“resolution of the issue [to be precluded] Was essential to a final judgment in the first

action,” the court also finds that this condition has been met in the above-captioned case.

See Laquna l-iermosa Corp. v. United States 671 F.3d at 1288. As noted above, Judge

Lettow dismissed plaintiffs complaint in Kemper l because the “court lacks jurisdiction

over Nlr. Kemper’s claims" Kemper l, 2017 Wl_ 32749242, at *2. Although dismissal for

lack ofjurisdiction is not a judgment on the merits of the claim, the dismissal retains its

preclusive effect unless the grounds for the dismissal have been corrected and the reason

the complaint was initially dismissed has been “cured.” See Goad v. United States 46

Fed. Cl. at 398. Such a “cure" requires an update in facts or change in applicable law that

11

would remedy the original defect With the claim that this court has subject matter

jurisdiction. See Comm’r of lnternal Revenue v. Sunnenl 333 U.S. 591, 600 (1948); _se_e

also l_owe v. United States 79 Fed. Cl. at 230; see also Goad v. United States 46 Fed.

Cl. at 398. Based on the record before the court the underlying facts in Nlr. Kemper’s

case currently before the court remain unchanged from plaintiffs case decided in Kemper

j. There has also been no operable change in the facts or the applicable law since

plaintiffs claims were decided in Kemper l.

Finally, the fourth condition under the collateral estoppel doctrine requires that “the

plaintiff had a full and fair opportunity to litigate the issue in the first action." Laguna

Hermosa Corp. vx United States 67'l F.3d at 1288; see also ln re Freeman. 30 F.3d at

1467 (citing Jackson Jordan, lnc. v. Plasser American Corp., 747 F.2d 1567, 1574 (Fed.

Cir. 1984)). “[R]elitigation of issues is warranted, however, if there is reason to doubt the

quality, extensiveness or fairness of procedures followed in the prior litigation.” l_c_l; (citing

lVlontana v. United States 440 U.S. at 164 & n.l1). HQ §§ status in a former claim does

not entitle a litigant to automatically claim that he had insufficient representation because

of the U §§ status in an effort to overcome the fourth condition of collateral estoppe|.7 ln

the current case before this court plaintiff fails to allege or document any identifiable

circumstances to demonstrate that plaintiff Was denied a “full and fair opportunity to

litigate" his claims in Kemper l. `l'he issues raised by plaintiff in Kemper l were properly

and fully litigated. As a result the fourth condition for collateral estoppel is met in sum,

this court finds that plaintiff is collaterally estopped from re-litigating the subject matter

jurisdiction of this court over his complaint in the above~captioned case, Which was

already fully litigated and dismissed by Judge Lettow in Kemper l. See Biafora v. United

States 773 F.3d at 1333; see also Laduna Hermosa Corp. v. United States 671 F.3d at

1288; in re Freeman, 30 F.3d at 1465.

As noted above, defendant argues in the alternative that “[e]ven if lV|r. Kemper’s

complaint were not barred by collateral estoppel, the Court still lacks jurisdiction to

entertain lV|r. Kemper’s claims and still must dismiss the complaint, for the additional

reasons discussed in Kemper i." (italics in original). This court agrees that even absent

the collateral estoppel bar to re-|itigating plaintiffs case after Kemper l, the issues raised

in plaintiffs complaint currently before the court are not within the subject matter

jurisdiction of this court “Subject-matterjurisdiction may be challenged at any time by the

parties or by the court sua sponte.” Folden v. United States 379 F.3d 1344, i354 (Fed.

Cir. 2004) (citing Fanninq, Phillips 8 l\/lolnarv. West, 160 F.3d 717, 720 (Fed. Cir. 1998)).

The TuckerAct, 28 U.S.C. § 1491 (2011), grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

7 For example, the Court oprpeals for the Federal Circuit in an unpublished case, found

that the p_rp § plaintiff had a “full and fair opportunity to present his originally filed

complaint" and, thus affirmed the Court of Federal Ciaims’ dismissal of the 11le

plaintiffs complaint as collaterally estopped See 'i'homas v. United States 245 F. App’x

18, 19~20 (Fed. Cir. 2007).

12

Constitution, or any Act of Congress or any regulation of an 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)(1). As interpreted by the United States Supreme Court the Tucker

Act waives sovereign immunity to allowjurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States (2) seeking a refund

from a prior payment made to the government or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained See United States v. Navaio Nation, 556 U.S. 287, 289~90 (2009);

United States v. lViitchell, 463 U.S. 206l 216 (1983); see also A|varado Hosb.. LLC v.

m, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cntv., Ariz. v. United States 487

F.3d 871, 875 (Fed. Cir.), reh’q and reh'd en banc denied (Fed. Cir. 2007), c_e_r_t_; denied,

552 U.S. 1142 (2008); Palmer v_ United States 168 F.3d 1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable

under the Tucker Act. 'l`he claim must be one for money damages against the United

States . , . United States v. Nlitche||, 463 U.S. at 216; see also United States v. White

lVlountain A_pache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States 709 F.3d 1114l

1116 (Fed. Cir.), M denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States

566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's lVlushroom Serv., lnc. v. United States 521

F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law

that creates the right to recovery of money damages against the United States.”); Golden

v. United States 118 Fed. Cl. 764, 768 (2014). ln Ontario Power Generation, lnc. v.

United States the United States Court of Appeals for the Federal Circuit identified three

types of monetary claims for which jurisdiction is lodged in the United States Court of

Federal Claims The court wrote:

The underlying monetary claims are of three types . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government directly or in effect and seeks return of all or part of that sum.”

Eastport S.S. iCorp. v. United States 178 Ct. Cl. 599, 605-~06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describlng illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket”’ (quoting

Clapp v. United States 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

government either directly or in effect require that the “particular provision

of law relied upon grants the claimant expressly or by implication, a right to

be paid a certain sum.” _l_§; see also lUnlted States v.l Testan, 424 U.S.

[392,] 401-02 [1976] (“VVhere the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation~

13

does not create a cause of action for money damages unless as the Court

of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a “money-mandating”

statute

Ont. Power Generation, lnc. v. United States 369 F.3d 1298, 1301 (Fed. Cir. 2004); W

also Twp. of Saddle Brook v. United States 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon “‘can fairly be

interpreted as mandating compensation by the Federal Government.”’ United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400

(1976)); see also United States v. White |Vlountain Abache Tribe, 537 U.S. at 472; United

States v. lViitchell, 463 U.S, at 217; Blueport Co.. LLC v. United States 533 F.3d 1374,

1383 (Fed. Cir. 2008), gme,_”rjc_. denied, 555 U.S. 1153 (2009). The source of law granting

monetary relief must be distinct from the Tucker Act itself See United States v. Navaio

Nation, 556 U.S. at 290 (The Tucker Act does not create “substantive rights [it is simply

a] jurisdictional provision[j that operate[s] to waive sovereign immunity for claims

premised on other sources of law (e.g., statutes or contracts).”). “‘lf the statute is not

money~mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal

should be for lack of subject matter jurisdiction.”’ Jan’s Helicopter Serv., lnc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cntv.. Ariz. v.

United States 487 F.3d at 876); Fisher v. United States 402 F.3d 1167, 1173 (Fed. Cir.

2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under

the TuckerAct.”); Price v. United States 133 Fed. Cl. 128, 130 (2017); Peoples v. United

States 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack of subject matterjurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. §_e§ Erickson

v. Pardus, 551 U.S. at 94 (“[VV]hen ruling on a defendant’s motion to dismiss a judge

must accept as true all of the factual allegations contained in the complaint.” (citing M

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A_,

534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. lns. Undenivriters lnc. v. United States 805

F.3d 1082, 1084 (Fed. Cir. 2015); Trusted lntedration. lnc. v. United States 659 F.3d

1159,1163(Fed,Cir.2011).

“Determination of jurisdiction starts with the complaint, which must be well~pleaded

in that it must state the necessary elements of the plaintiffs claim, independent of any

defense that may be interposed.” Holiev v. United States 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise `i`ax Bd. v, Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), gregg

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States 97 Fed.

Cl. 203, 208 (2011); Gonzalez-lVlcCaullev lnv. Grp., lnc. v. United States 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

14

grounds forthe court's jurisdiction," and “a short and plain statement of the claim showing

that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2017); Fed. R, Civ. P. 8(a)(1), (2)

(2018); see also Ashcroft v. lqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v.

Twomb|y, 550 U.S. at 555~57, 570). To properly state a claim for relief, “[c]onclusory

allegations of law and unwarranted inferences of fact do not suffice to support a claim.”

Bradlev v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Ncheal v. Sprint

Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part

dissenting in part) (quoting C. WnicHT AND A. lVlrLLEn, FEDERAL PRAcTicE ANo PRochuRE

§ 1286 (3d ed. 2004)); Briscoe v. l_aHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory

allegations unsupported by any factual assertions will not withstand a motion to dismiss.”),

_a_ff,d 460 U S. 325 (1983) “A plaintiffs factual allegations must ‘raise a right to relief

above the speculative level’ and cross ‘the line from conceivable to plausible Three S

Consultinq v. United States 104 Fed. Cl. 510, 523 (2012) (quoting Beli Atl Corpv

Twombly, 550 U. S. at 555), §@ 562 F. Appx 964 (Fed. Cir.,) Lemh_’_g denied (Fed Cir.

2014). As stated in Ashcroft v. lgba , “[a] pleading that offers ‘labels and conclusionsl or

‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U. S. at 555.

Nor does a complaint suffice if it tenders naked assertion[s]’ devoid of ‘further factual

enhancement.”’ Ashcroft v. lgball 556 U. S. at 678 (quoting Beli Atl Corp v. Twomb|v,

550 U. S. at 555).

Regarding plaintiffs breach of contract claim, as discussed above, plaintiff asserts

in his complaint, without documentation, that he entered into a written agreement with the

“Department of Voc Rehab" for “3 months payment" for what at times in his complaint he

labels as a “volunteer job.” Plaintiff states in his complaint in this court that “l\ilr. Arnett

never did contact any state or federal office seeking a volunteer position for the Plaintiff,

per the written agreement the Plaintiff had with the department [“Department of Voc

Rehab”] and the counselor, l\ilr. Arnett.” Plaintiff also describes the services allegedly

promised to him by the VA in his complaint as “offerings" by the VA to “work with the vet

and help him or her get employment," and also “to help veterans get counseling when

sought and a job also, when sought.” Plaintiff also states in his complaint in this court that

during his meeting with lVlr, Arnett to discuss potential employment opportunities lVlr.

Arnett “advised what he did and did not do," and "mentioned strictly volunteering and the

paper processes applicable to same,” and that “[t]heir only service was to contact federal

or state offices to see who could use a volunteer for full time employment forthree months

duration.” A|so according to the complaint plaintiff rejected the opportunity identified for

him in his meeting with lV|r. Arnett. Plaintiff states in his complaint that iVir. Arnett referred

plaintiff to a potential volunteer opportunity with a contractor to “load food containers into

bags for the hungry_" According to his complaint, plaintiff turned down this opportunity

because he “found ita place of 100% chaos.” Plaintiff additionally states in his complaint

that his response to the VA’s alleged proposed service was that he “Was aghast as this

was the very last thing he desired,” and that he “mentioned [to l\/lr. Arnett during their in~

person meeting] that the idea of the VA paying for the volunteer services of a services

candidate [the Plaintiff] was a contradiction in law and logic." Plaintiff then reiterates in his

complaint that the alleged opportunity identified by “Department of Voc Rehab” to pay

plaintiff for three months of volunteer work was “[again, a contradiction but how the Rehab

office Worl<ed.]" Similarly, in his February 6, 2018 document plaintiff refers to the VA’s

15

alleged opportunity to "get the Plaintiff a volunteer job wich the VA would pay for," a “very

absurd contract which the plaintiff brought to the a of arnett--who said that is the way the

d creates contracts”

To have privity of contract with the United States government and therefore invoke

the jurisdiction of the United States Court of Federal Claims for his alleged breach of

contract claim, plaintiff “must show that either an express or implied-in-fact contract

underlies [the] claim." Trauma Serv. Grp. v. United States 104 F.3d 1321, 1325 (Fed. Cir.

1997). An express contract “must be manifested by words either oral or written.” Webster

Universitv v. United States 20 Cl. Ct. 429, 433 (1990). An implied-in-fact contract

however, is an agreement ““‘founded upon a meeting of the minds which, although not

embodied in an express contract is inferred, as a fact, from conduct of the parties

showing, in the light of the surrounding circumstances their tacit understanding.”’”

Trauma Serv. Grp. v. United States 104 F.3d at 1325 (Fed. Cir. 1997) (quoting Hercuies

lnc. v. United States 516 U.S. 417, 424 (1996) (quoting Balt. & Ohio R.R. Co. v. United

States 261 U.S. 592, 597 (1923))); see also Kam-Almaz v. United States 682 F.3d 1364,

1368 (Fed. Cir. 2012); Banl< of Guam v. United States 578 F.3d 1318, 1329 (l'-`ed. Cir.)

(citing Trauma Serv. Grp. v. United States 104 F.3d at 1326), reh’q and reh’q L banc

denied (Fed. Cir. 2009); Bav View, lnc. v. United States 278 F.3d 1259, 1265-66 (Fed.

Cir. 2001), reh’q and reh'q § banc denied, 285 F.3d 1035 (Fed. Cir.), ge_rt. denied, 537

U.S. 826 (2002); XP Vehicies lnc. v. United States 121 Fed. Cl. 770, 781 (2015);

Westlands Water Dist. v. United States 109 Fed. Cl. 177, 203 (2013); Peninsula Grp.

Capital Corp. v. United States 93 Fed. Cl. 720, 728 (2010) (citinq Balt. & Ohlo R.R. Co.

v. United States 261 U.S. at 597; and Russell Corp. v. United States 210 Ct. Cl. 596l

609 (1976)), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 2011). Such an agreement

will not be implied “unless the meeting of minds was indicated by some intelligible

conduct act or sign.” Balt. & Ohio R.R. Co, v. United States 261 U.S‘ at 598; § §_l_s_g

Russell Corp. v. United States 210 Ct. Cl. at 609.

The elements for both express and implied contracts with the United States are

identical. See Ni€iht Vision Corp. v. United States 469 F.3d 1369l 1375 (Fed. Cir. 2006)

(“The elements of an implied-in-fact contract are the same as those of an oral express

contract.”), ge_rt. denied, 550 U.S. 934 (2007); Hanlin v. United States 316 F.3d at 1328

(“Thus, the requirements for an implied-in-fact contract are the same as for an express

contract only the nature of the evidence differs."); Citv of Cincinnati v. United States 153

F.3d 1375, 1377 (Fed. Cir. 1998). The required elements to demonstrate an express or

implied contract are: “(1) mutuality of intent to contract; (2) consideration; and, (3) lack of

ambiguity in offer and acceptance.” _lgz See also Bank of Guam v. United States 578

F.3d at 1326 (quoting Trauma Serv. Grp. v. United States 104 F.3d at 1325); sep M

Chattlerv. United States 632 F.3d 1324, 1330 (2011) (citing Trauma Serv. Grp. v. United

States 104 F.3d at 1325); Hanlin v. United States 316 F.3d 1325, 1328 (Fed. Cir. 2003)

(citing Citv of Cincinnati v. United States 153 F.3d 1375, 1377 (Fed. Cir. 1998)); Edwards

v. United States 22 Cl. Ct. 411, 420 (1991) (citing Essen Nlall Props. v. United States 21

Cl. Ct. 430, 440 (1990); Pac. Gas & Elec. Co. v. United States 3 Cl. Ct. 329, 339 (1983),

a_f_f_d_, 738 F.2d 452 (Fed. Cir. 1984); and Citv of Klawock v. United States 2 Cl. Ct. 580,

584 (1983), B, 732 F.2d 168 (Fed. Cir. 1984)); see also Total lVled. ll/lqmt.l inc. v. United

16

States 104 F.3d 1314, 1319 (Fed. Cir.) (“The requirements for a valid contract with the

United States are: a mutual intent to contract including offer, acceptance and

consideration; and authority on the part of the government representative who entered or

ratified the agreement to bind the United States in contract." (citations omitted)), Mg

denied and g banc suggestion declined (Fed. Cir.), Lrt. denied, 522 U.S. 857 (1997);

San Carlos lrr. & Drainaqe Dist. v. United States 877 F.2d 957, 959 (Fed. Cir. 1989);

Stanwvck v. United States 127 Fed. Cl. 308, 312 (2016); Huntindton Promotional &

Supplv. LLC v. United States 114 Fed. Cl. at 767; Eden lsle llllarinal lnc. v. United States

113 Fed. Cl. 372, 492 (2013); Council for Tribal Emp’t Riqhts v. United States 112 Fed.

Cl. 231, 243 (2013), m, 556 F. App’x 965 (2014).

V\ihen the United States is a party to an alleged express or implied-in-fact contract

“a fourth requirement is added: The government representative whose conduct is relied

upon must have actual authority to bind the government in contract.” City of Cincinnati v.

United States 153 F.3d at 1377 (quoting Citv of El Centro v. United States 922 F.2d 816,

820 (Fed. Cir. 1990)); Trauma Serv. Grp. v. United States 104 F.3d at 1325; Russell

Corp. v. United States 210 Ct. Cl. at 608-09; Weeks v. United States 124 Fed. Cl. 630,

633 (2016); Huntindton Promotional & Supplv1 Li_C v. United States 114 Fed. Cl. at 767;

Varqas v. United States 114 Fed. Cl. 226, 233 (2014); Pralrie Cntv., lVlont. v. United

States 113 Fed. Cl. 194, 202 (2013), _a”_f_f:gl_, 782 F.3d 685 (Fed. Cir.), Mdenied, 136 S.

Ct. (2015); Mastrolia v. United States 91 Fed. Cl. 369, 384 (2010) (citing Flexfab l_.L.C.

v. United States 424 F.3d 1254, 1265 (2005)). As a general proposition:

[T]he law requires that a Government agent who purports to enter into or

ratify a contractual agreement that is to bind the United States have actual

authority to dc so. See Trauma Serv. Groun v. United States, 104 F.3d

1321, 1325 (Fed. Cir. 1997). 'l'he corollary is that any party entering into an

agreement with the Government accepts the risk of correctly ascertaining

the authority of the agents who purport to act for the Government . . . .

l\/lonarch Assurance P.i_.C. v. United States 244 F.3d 1356, 1360 (Fed. Cir.), reh'g app

reh'g _e_rj banc denied (i'-'ed. Cir. 2001);‘ see also Snvder & Assocs. Aquisitions LLC v.

United States 133 Fed. Cl. 120, 126 (2017).

Assuming plaintiff could demonstrate mutuality of intent to contract consideration,

and lack of ambiguity of an offer and acceptance plaintiff bears the burden of proving

that lVlr. Arnett who plaintiff contends signed the alleged agreement with him, had

authority to enter into this agreement which plaintiff has failed to establish lt is well

established that the government is not bound by the acts of its agents beyond the scope

of their actual authority. See Fed. Crob lns. Corp. v. l\/lerrill, 332 U.S. 380, 384 (1947)

(“[A]nyone entering into an arrangement with the Government takes the risk of having

accurately ascertained that he Who purports to act for the Government stays within the

bounds of his authority.”). Plaintiff does not allegel or is there any evidence in the record

before the court that lV|r. Arnett had actual authority to bind the United States The fact

that plaintiff may have believed or wanted to believe that Nlr. Arnett held such authority is

not sufficient See Harbert/Lummus Aorifuels Proiects v. United States 142 F.3d 1429,

17

1432 (Fed. Cir.), reh'g denied and g banc suggestion declined (Fed. Cir. 1998), gem

denied, 525 U.S. 1177 (1999); see also Trauma Serv. Grp. v. United States 104 F.3d at

1327 (The plaintiff “must prove all of the requirements for a binding contract in order to

prevail” and “must allege facts sufficient to show that the Government representative who

entered into its alleged implied-in-fact contract was a contracting officer or had implied

actual authority to bind the Government.”).

ln the record currently before the court as discussed above, there is no

documentation of an express contract including no written agreement between the United

States and plaintiff, despite plaintiffs vague allegation of a written contract l\/loreover,

although not directly stated, to the extent that plaintiff possibly may be suggesting that he

entered into an implied-in-fact contract with the VA, there is no evidence in the record

before the court that plaintiff and the VA entered into an implied-in-fact contract nor has

plaintiff alleged the required elements of a binding contract “‘A well pleaded allegation of

an express or implied-in-fact contract necessarily includes allegations going to each of

the requisite elements of a contract’" De Archibold v. United States 57 Fed. Cl. 29, 32

(2003) (quoting lVchfee v. United States 46 Fed. Cl. 428, 432, appeal dismissed, 243

F.3d 565 (Fed. Cir. 2000)), as weil as proof that a contract between the plaintiff and the

United States came into existence ln sum, based on the record before the court no

breach of an express or implied-in-fact contract is established as having occurred and

plaintiffs breach of contract fails8

As discussed above, plaintiff also vaguely alleges a fraud claim. He does not

indicate whether he is alleging a claim of criminal or civil fraud. According to the complaint

plaintiff states that the website for the “Department of Voc Rehab” allegedly stated that

8 'l'o the extent that plaintiff is a veteran, which plaintiff never explicitly alleges in his

complaint, the appropriate avenue for plaintiff to obtain review of a potential claim against

the VA regarding a denial of available veterans’ benefits is as the defendant alleges in

its motion to dismiss through the administrative proceedings at the Vi\1 including any

applicable appeal processes g 38 U.S.C. § 511(a) (2012) (“The Secretary shall decide

all questions of law and fact necessary to a decision by the Secretary under a law that

affects the provision of benefits by the Secretary to veterans or the dependents or

survivors of veterans.”). in addition,

[i]f an individual receives an adverse decision from the Secretary, the

Veterans’ Judicial Review Act, Pub. L. No. 100~--6871 102 Stat. 4105 (1988)

(codified at 38 U.S.C. §§ 7251-99), provides the statutory route that the

individual must follow in appealing the decision. This includes an appeal to

the Board of Veterans Appeals 38 U.S.C. § 7104, the Court of Appeals for

Veterans Claims 38 U.S.C. § 7252(a), and finally the Federal Circuit 38

U.S.C. § 7292(c).

Estate of Smallwood v. United States 130 Fed. Cl. 395, 399-400 (2017) (holding that the

court lacked jurisdiction over allegations regarding the Wrongful denial of benefits by the

VA).

18

the “Department of Voc Rehab” “wold talk to prospective employers and get interviews

for the net.” Plaintiff then vaguely asserts that such representation was “fraudulent”

because “[t]he Department of Voc Rehab [later] claimed that they did none ofthe services

included on their web site.” li plaintiff is even possibly trying to allege a criminal fraud

claim, this court lacks jurisdiction to adjudicate that claim. The jurisdiction of the United

States Court of Federal Claims does not include jurisdiction over criminal causes of

action See .loshua v. United States 17 F.3d 378, 379 (Fed. Cir. 1994); pung Cooper

v. United States 104 Fed. Cl. 306, 312 (2012) (holding that “this court does not have

jurisdiction over [plaintiff’s] claims because the court may review neither criminal matters

nor the decisions of district courts.") (internal citations omitted). ivlendes v. United States

88 Fed. Cl. 759, 762, appeal dismissed, 375 F. App’x4 (Fed. Cir. 2009); Hufford v. United

States 87 Fed. Cl. 696, 702 (2009) (holding that the United States Court of Federal

Claims lacked jurisdiction over claims arising from the violation of a criminal statute);

Fullard v. United States 78 Fed. Cl. 294, 301 (2007) (“[p]iaintiff alleges criminal fraud, a

subject matter over which this court lacks jurisdiction.”) (citing 28 U.S.C. § 1491); W _aj§p

lVlcCullough v. United States 76- Fed. Cl. 1, 4 (2006) (finding that the court lacked

jurisdiction to consider plaintiffs criminal claims), appeal dismissed, 236 F. App’x 615

(Fed. Cir.), L§Eg denied (Fed. Cir.)l ppg denied 552 U.S. 1050 (2007); lVlatthews v.

United States 72 Fed. Cl. 274, 282 (finding that the court lacked jurisdiction to consider

plaintiffs criminal claims)l recons. denied, 73 Fed. Cl. 524 (2006).9 Accordingly, to the

extent plaintiff alleges criminal fraud, the claim must be dismissed for lack of subject

matter jurisdiction.

This court also lacks jurisdiction to hear tort claims against the United States §§

28 U.S.C. § 1491 (a)(1) (“The United States Court of Federal Claims shall havejurisdiction

. . . in cases not sounding in tort."); see also Keene Corp. v. United States 508 U.S. 200,

214 (1993) (“[T]ort cases are outside the jurisdiction of the Court of Federal Claims

today.”); Rick’s lVlushroom Serv., lnc. v. United States 521 F.3d at 1343; Brown v. United

States 105 F.3d 621, 623 (Fed, Cir. 1997) (“The Court of Federal Claims is a court of

limited jurisdiction lt lacks jurisdiction over tort actions against the United States.”); _l$a_m

v. United States 123 Fed. Cl. 614, 616 (2015). ln contrast “district courts have exclusive

jurisdiction to consider tort claims against the United States that fall within the purview of

the FTCA [Federal Tort Claims Act]." Bobka v. United States 133 Fed. Cl. 405, 412

(2017).

lt is well-established an allegation of fraud is a tort claim. § Brown v. United

States 105 F.3d at 623 (“Because Brown and Darnell’s complaints for ‘fraudulent

assessment[s]’ are grounded upon fraud, which is a tort the court lacks jurisdiction over

those claims."); see also Bobka v. United States 133 Fed. Cl. at 412 (“lVlr. Bobka also

alleges that the government engaged in tortious conduct e.g., fraud, negligence, and

defamation This court however, does not have jurisdiction over allegations based in

9 The Court of Appeals for the Federal Circuit recently wrote in an unpublished opinion

that “[t]he Court of Federal Claims likewise lacks jurisdiction to adjudicate claims brought

under federal or state criminal statutes.” Spitters v. United States 710 F. App’x 896, 897

(Fed. Cir. 2018) (citing Joshua v. United States 17 F.3d at 379).

19

tort.”); see also Out|aw v. United States 1 16 Fed. Cl. 656, 662 (2014) (“fraud and coercion

are tort claims-mover which this court has no Tucker Act jurisdiction."); l\/lata v. United

States 114 Fed. Cl. 736, 754 (2014) (“Plaintiffs allegation of fraud sounds in tort and

this court has no jurisdiction over claims that sound in tort.”); see also Aetna Cas. And

Sur. Co. v. United States 228 Ct. Cl. 146, 655 F.2d 1047 (1981) (holding that fraudulent

inducement and misrepresentation allegations were tort claims “expressly beyond our

TuckerActjurisdiction."); Q_f_. Soma|i Dev_ Bank v. United States 205 Ct. Cl. 741, 749, 508

F.2d 817, 821 (1974) ("claims based on negligent misrepresentationl wrongful

inducement or the careless performance of a duty allegedly owedl are claims sounding

in tort.”).10 Plaintiff alleges that the VA claimed that it did not offer certain services that

were allegedly publicized on its website and, according to plaintiff, such conduct by the

VA was “fraudu|ent.” lt is evident from the record before the court that plaintiff is alleging

a fraud that sounds in tort and, thus plaintiffs fraud claim is not within this court's subject

matterjurisdiction. See Brown v. United States 105 F.3d at 623; see also Bobka v. United

States 133 Fed. Cl. at412.

1° This court however, can have jurisdiction over a fraud claim “where a tort claim stems

from a breach of contract,” because “the cause of action is ultimately one arising in

contract and thus is properly within the exclusive jurisdiction of the Court of Federal

Claims . . . .” Awad v. United States 301 F.3d 1367, 1372 (Fed. Cir. 2002); §_e_e _a_j§p

Solaria Corp. v. United States 123 Fed. Cl. 105, 123 (2015) (“if the ‘alleged

misrepresentations are merely another way of asserting that a breach of contract

occurred . , . the claim is not barred simply because it might also be stated as a tort.”’

(quoting Olin Jones Sand Co. v. United States 225 Ct. Cl. 741, 745, 1980 VVL 13211

(1980))); Charnetski v. United States 111 Fed. Cl. 185, 190 (2013) (“[i]f contractual

relations exist the fact that the alleged breach is also tortious does not foreclose Tucker

Actjurisdiction." (quoting Fountain v. United States 192 Ct. Cl. 495, 498, 427 F.2d 7591

761 (1970))). Thus, for this court to adjudicate fraud claims sounding in tort “there must

be a direct connection between the Government’s contractual obligations and the alleged

tortious conduct." Solaria Corp. v. United States 123 Fed. Cl. at 123 (quoting H.l-l.O. lnc.

v. United States 7 Cl. Ct. 703, 706 (1985)). This exception to the general rule of no tort

jurisdiction does not apply to plaintiffs fraud claim because no contract between plaintiff

and the United States ever came into existence

20

CONCLUS|ON

For the forgoing reasons the court finds that plaintiffs complaint is barred under

the collateral estoppel doctrine The court also finds that even absent a collateral

estoppel bar, the court lacks subject matterjurisdiction over the claims alleged in plaintiffs

complaint Accordingly, the court D|SM|SSES plaintiffs complaint as frivolous and

GRANTS defendants motion to dismiss The Clerk of Court shall enter JUDGllllENT

consistent with this opinion

lT lS SO ORDERED.

, li r_

7 /5§:£1 ,-',/i@//CL¢.Q/£_-P

lll|ARlAN BLANK HORN

Judge

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