Kelly-Leppert v. United States

In the United States Court of Federal Claims

No. 21-955C

Filed: July 8, 2021

NOT FOR PUBLICATION

)

CONSUELO E. KELLY-LEPPERT, )

)

Plaintiff, )

) Pro se; RCFC 12(b)(1); Subject-Matter

v. ) Jurisdiction; In Forma Pauperis; Veterans

) Benefits; Breach Of Contract.

THE UNITED STATES, )

)

Defendant. )

)

Consuelo E. Kelly-Leppert, Overland Park, KS, plaintiff pro se.

Evan Wisser, Trial Attorney, Elizabeth M. Hosford, Assistant Director, Martin F.

Hockey, Jr., Acting Director, Brian N. Boynton, Acting Assistant Attorney General, Commercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for

defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

In this action, plaintiff pro se, Consuelo E. Kelly-Leppert, alleges that the government

failed to provide her deceased veteran husband with a comprehensive health exam. See

generally Compl.; Am. Compl. As relief, plaintiff seeks monetary damages from the

government for, among other things, loss of consortium and breach of contract. See generally

Compl.; Am. Compl. The government has moved to dismiss this matter for lack of subject-

matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal

Claims (“RCFC”). See generally Def. Mot. Plaintiff has also moved to proceed in this matter in

forma pauperis. See generally Pl. Mot. for IFP.

In addition, plaintiff has filed motions for summary judgment and for oral argument, and

for a default judgment. See generally Pl. Resp.; Pl. Mot. for Default Judgment. For the reasons

discussed below, the Court: (1) GRANTS the government’s motion to dismiss; (2) GRANTS

plaintiff’s motion to proceed in forma pauperis; (3) DENIES-as-MOOT plaintiff’s motion for

summary judgment and for oral argument; (4) DENIES-as-MOOT plaintiff’s motion for a

default judgment; and (5) DISMISSES the amended complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff pro se, Consuelo E. Kelly-Leppert, is the widow of deceased Vietnam War

veteran Michael J. Kelly. Compl. at 2. In this action, plaintiff alleges that the government failed

to provide Mr. Kelly with a requested Agent Orange comprehensive medical exam. See

generally Compl.; Am. Compl. Specifically, plaintiff alleges that the government failed to

conduct a biopsy of Mr. Kelly’s lungs and that the government also failed to provide plaintiff’s

medical expert with certain medical records regarding Mr. Kelly’s healthcare. See Compl. at 2.

Plaintiff asserts several claims related to the Agent Orange medical exam administered to

Mr. Kelly by the Department of Veterans Affairs (“the VA”). See generally Compl; Am.

Compl.; Pl. Resp. First, plaintiff alleges that an implied contract was established between the

VA and her husband to provide an Agent Orange medical exam and that, due to the

government’s breach of that contract, she suffered the loss of her business partner and

consortium, pain and suffering and damages to her business. Am. Compl. at 1-2; Pl. Resp. at 1,

10, 22. Plaintiff also appears to allege in her response to the government’s motion to dismiss

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

Fourteenth Amendment. Pl. Resp at 1, 21.

In addition, plaintiff appears to assert medical malpractice and veterans benefits claims in

this action. See generally Compl. Lastly, plaintiff alleges that the government breached its

fiduciary duty to Mr. Kelly, by failing to provide a comprehensive medical exam. Pl. Resp. at

20. As relief, plaintiff seeks $138 million in monetary damages from the government. Am.

Compl. at 2.

1

The facts recited in this Memorandum Opinion and Order are taken from the complaint and the amended

complaint (“Compl.”; Am. Compl.”); the government’s motion to dismiss (“Def. Mot.”); and plaintiff’s

response and opposition to the government’s motion to dismiss (“Pl. Resp.”). Unless otherwise noted, the

facts recited herein are undisputed.

2

B. Procedural Background

Plaintiff commenced this action and filed a motion to proceed in forma pauperis on

February 16, 2021. See generally Compl.; Pl. Mot. for IFP. On March 8, 2021, plaintiff filed a

motion to amend the complaint, which the Court granted on March 10, 2021. See generally Pl.

Mot. to Am. Compl.; Order, dated March 10, 2021. On the same day, plaintiff filed an amended

complaint. See generally Am. Compl.

On March 25, 2021, plaintiff filed a motion for a default judgement. See generally Pl.

Mot. for Default Judgment. On April 13, 2021, the government filed a motion to dismiss this

matter for lack of subject-matter jurisdiction, pursuant to RCFC 12(b)(1). See generally Def.

Mot.

On May 10, 2021, plaintiff filed a response and opposition to the government’s motion to

dismiss and a motion for summary judgment and for oral argument. See generally Pl. Resp. On

May 13, 2021, the government filed a reply in support of its motion to dismiss and a response

and opposition to plaintiff’s motion for summary judgment and for oral argument. See generally

Def. Reply. On May 27, 2021, plaintiff filed a reply in support of her motion for summary

judgment and for oral argument. See generally Pl. Reply.

These matters having been fully briefed, the Court resolves the pending motions.

III. LEGAL STANDARDS

A. Pro Se Litigants

Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the

Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App’x 919,

926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.

2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to survive

a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to

plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

(holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent

standards than formal pleadings drafted by lawyers”); Matthews v. United States, 750 F.3d 1320,

1322 (Fed. Cir. 2014). But, there “is no duty on the part of the trial court to create a claim which

[the plaintiff] has not spelled out in his pleading.” Lengen v. United States, 100 Fed. Cl. 317,

3

328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin v. United

States, 33 Fed. Cl. 285, 293 (1995)).

Given this, while “a pro se plaintiff is held to a less stringent standard than that of a

plaintiff represented by an attorney . . . the pro se plaintiff, nevertheless, bears the burden of

establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States,

93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.

2002)). And so, the Court may excuse ambiguities, but not defects, in the complaint. Colbert v.

United States, 617 F. App’x 981, 983 (Fed. Cir. 2015) (“No plaintiff, pro se or otherwise, may be

excused from the burden of meeting the [C]ourt’s jurisdictional requirements.”) (citing Kelley v.

Sec’y of Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)) (emphasis added); see also

Demes v. United States, 52 Fed. Cl. 365, 368 (2002) (“Pro se litigants are not immune from laws

and rules of procedure simply on the basis of their pro se status.”) (citation omitted).

B. RCFC 12(b)(1)

When deciding a motion to dismiss for lack of subject-matter jurisdiction, 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. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); United

Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); RCFC 12(b)(1).

Plaintiff bears the burden of establishing subject-matter jurisdiction, and she must do so by a

preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). And so, should the Court determine that “it lacks jurisdiction over the subject

matter, it must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006)

(citing RCFC 12(h)(3)).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and “possess[es] only that power authorized by Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the Court

jurisdiction over:

[A]ny claim against the United States founded either upon the 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.

4

28 U.S.C. § 1491(a)(1). The Tucker Act is, however, “a jurisdictional statute; it does not create

any substantive right enforceable against the United States for money damages. . . . [T]he Act

merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the

substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a

substantive right against the United States under the Tucker Act, a plaintiff must identify and

plead a money-mandating constitutional provision, statute, or regulation; an express or implied

contract with the United States; or an illegal exaction of money by the United States. Cabral v.

United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.

Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes if it ‘can

fairly be interpreted as mandating compensation for damages sustained as a result of the breach

of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (brackets existing) (quoting United States

v. Mitchell, 463 U.S. 206, 217 (1983)).

Specifically relevant to this matter, it is well-established that this Court does not possess

subject-matter jurisdiction to review tort claims. 28 U.S.C. § 1491(a)(l); 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 Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343

(Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the Court of Federal

Claims jurisdiction claims sounding in tort.”); Hernandez v. United States, 96 Fed. Cl. 195, 204

(2010). This Court has also recognized that “[c]laims for veterans’ benefits are not within the

jurisdiction of the Court of Federal Claims.” See, e.g., Berkowitz v. United States, No. 07-328C,

2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) (quoting Van Allen v. United States, 66 Fed.

Cl. 294, 296 (2005)). And so, the Court must dismiss tort claims and veterans benefits claims for

lack of subject-matter jurisdiction.

This Court also does not possess subject-matter jurisdiction to consider claims based

upon the Fourteenth Amendment to the United States Constitution, because the Fourteenth

Amendment does not mandate the payment of money damages. LeBlanc v. United States, 50

F.3d 1025, 1028 (Fed. Cir. 1995). In addition, the Court may not consider civil rights claims,

because Congress has committed jurisdiction over claims brought pursuant to the Civil Rights

Act to the United States district courts. See 28 U.S.C. § 1343(a)(4) (“The district courts shall

have original jurisdiction of any civil action authorized by law to be commenced by any person .

5

. . (4) To recover damages or to secure equitable or other relief under any Act of Congress

providing for the protection of civil rights . . . .”); see also 42 U.S.C. § 1981; Jones v. United

States, 104 Fed. Cl. 92, 98 (2012) (explaining that the Court of Federal Claims has no

jurisdiction over claims based on, among other causes of action, alleged “violations of ... civil

rights”). And so, the Court must also dismiss such claims for lack of subject-matter jurisdiction.

Jones, 104 Fed. Cl. at 98.

C. Contract Claims Against The Government

This Court possesses subject-matter jurisdiction to consider express or implied-in-fact

contract claims against the United States. See Aboo v. United States, 86 Fed. Cl. 618, 626

(2009). But, plaintiff bears the burden of proving the existence of a contract with the United

States and she must demonstrate that there is “something more than a cloud of evidence that

could be consistent with a contract to prove a contract and enforceable contract rights.” D & N

Bank v. United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003).

This Court has held, however, that there is no contract-based jurisdiction in the United

States Court of Federal Claims for military pay or veterans benefits claims. For example, in

Vincent v. United States, the Court held that it lacked jurisdiction to resolve disputes between the

VA and veterans over military pay “based on [a] contractual agreement enforceable by the

Military Pay Statutes.” Vincent v. United States, 135 Fed.Cl. 330, 335 (2017), aff’d 731 Fed.

App’x 954 (Fed. Cir. 2018) (per curiam). The Court observed in Vincent that “the Supreme

Court has recognized the irrelevance of contract law for members of the military many times,

stating . . . ‘common-law rules governing private contracts have no place in the area of military

pay.’” Id. (quoting Schism v. United States, 316 F.3d 1259, 1271 (Fed. Cir. 2002) (en banc)).

This Court has also held that military healthcare services are governed by statute and not

by a contract with the government. See Estate of Smallwood v. United States, 130 Fed. Cl. 395,

399-400, aff’d 717 Fed. App’x 1007 (Fed. Cir. 2018) (per curiam) (holding the Court lacked

jurisdiction over an alleged breach of an “implied-in-fact contract for healthcare” because the

Court of Federal Claims was “not part of [the] statutory regime” available for denial of veterans

benefits claims); see also Schism v. United States, 316 F.3d 1259, 1276 (Fed. Cir. 2002) (noting

“military health care benefits . . . have long been exclusively a creature of statute, not contract”).

And so, this Court has dismissed contract-based claims seeking to recover military pay or

6

military healthcare benefits for lack of subject-matter jurisdiction. Smallwood, 130 Fed. Cl. at

399-400.

IV. LEGAL ANALYSIS

The government has moved to dismiss this matter upon the ground that the Court does

not possess subject-matter jurisdiction to consider any of plaintiff’s claims. See generally Def.

Mot. Specifically, the government argues that the Court does not possess contract-based

jurisdiction to consider plaintiff’s claim regarding Mr. Kelly’s military healthcare benefits, and

that plaintiff’s medical malpractice, constitutional law, civil rights and breach of fiduciary duty

claims also fall outside the Court’s subject-matter jurisdiction. Id. at 2-3; Def. Reply at 2-3.

And so, the government requests that the Court dismiss this action. Def. Mot. at 3.

Plaintiff counters in her response and opposition to the government’s motion to dismiss

that she may pursue her breach of contract claim against the government. Pl. Resp. at 2.

Plaintiff has also filed motions for a default judgement and for summary judgment and for oral

argument. See generally Pl. Mot. for Default Judgment; Pl. Resp. In addition, plaintiff has

moved to proceed in this matter in forma pauperis. See generally Pl. Mot. for IFP.

For the reasons discussed below, plaintiff has not met her burden to show that the Court

possesses subject-matter jurisdiction to consider any of her claims. Plaintiff has, however,

satisfied the statutory requirements to proceed in this matter without paying the Court’s filing

fee. And so, the Court: (1) GRANTS the government’s motion to dismiss; (2) GRANTS

plaintiff’s motion to proceed in forma pauperis; (3) DENIES-as-MOOT plaintiff’s motion for

summary judgment and for oral argument; (4) DENIES-as-MOOT plaintiff’s motion for a

default judgment; and (5) DISMISSES the amended complaint.

A. The Court May Not Consider Plaintiff’s Breach Of Contract Claim

As an initial matter, the Court must dismiss plaintiff’s breach of contract claim based

upon her spouse’s military healthcare benefits. In the complaint, plaintiff alleges that the VA

failed to provide Mr. Kelly with a comprehensive medical exam and any needed tests. See

Compl. at 2. Plaintiff also alleges that the government had a contractual obligation to provide

these healthcare services and that the government breached this alleged contract. See Compl. at

1; Am. Compl. at 1.

7

This Court has held that military healthcare benefits—like the healthcare services at issue

in this case—are governed by statute, rather than by a contract with the government. See Estate

of Smallwood v. United States, 130 Fed. Cl. 395, 398-400, aff’d 717 Fed. App’x 1007 (Fed. Cir.

2018) (per curiam) (the Court of Federal Claims is “not part of [the] statutory regime” available

to veterans alleging wrongful denial of benefits claims); see also Schism v. United States, 316

F.3d 1259, 1276 (Fed. Cir. 2002) (“military health care benefits . . . have long been exclusively a

creature of statute, not contract”). Given this, the Court has dismissed breach of contract claims

based upon military healthcare benefits for lack of subject-matter jurisdiction. Smallwood, 130

Fed. Cl. at 400.

In this case, plaintiff similarly bases her breach of contract claim upon Mr. Kelly’s

healthcare benefits arising from his status as a veteran of the Vietnam War. Compl. at 1.

Because plaintiff’s contract claim is based upon Mr. Kelly’s military healthcare benefits, the

Court must dismiss this claim for lack of subject-matter jurisdiction. RCFC 12(b)(1).2

B. The Court May Not Consider Plaintiff’s Tort Claims

The Court must also dismiss plaintiff’s medical malpractice claim, because this tort claim

is jurisdictionally precluded under the Tucker Act. 28 U.S.C. § 1491(a). In the complaint,

plaintiff alleges, among other things, that the government failed to conduct a biopsy of Mr.

Kelly’s lungs. Compl. at 2. To the extent that plaintiff is alleging that the VA engaged in

medical malpractice, plaintiff’s claim sounds in tort. McCauley v. United States, 38 Fed. Cl.

250, 265 (1997), aff’d, 152 F.3d 948 (Fed. Cir. 1998) (“Plaintiff’s claims for monetary damages,

which arise out of [the government’s] alleged negligent and wrongful conduct . . . are claims

clearly sounding in tort.”).

It is well-established that the Tucker Act explicitly places tort claims beyond the

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

2

Plaintiff also appears to allege that the VA breached a fiduciary duty to Mr. Kelly, by failing to provide

a comprehensive medical exam. See Pl. Resp. at 20. But, plaintiff has not identified a statute creating

such a fiduciary duty. See Spengler v. United States, 688 Fed. App'x 917, 921 (Fed. Cir. 2017) (requiring

plaintiffs bringing breach of fiduciary duty claims before the Court to “‘establish that the United States

has accepted a particular fiduciary duty’ by ‘identify[ing] statutes or regulations that both impose a

specific obligation on the United States and bear the hallmarks of a conventional fiduciary relationship’”)

(quoting Hopi Tribe v. United States, 782 F.3d 662, 667 (Fed. Cir. 2015)).

8

shall have jurisdiction to render judgment upon any claim against the United States . . . not

sounding in tort.”); Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010), 96 Fed. Cl. at 204

(“[T]he Tucker Act expressly excludes tort claims, including those committed by federal

officials, from the jurisdiction of the United States Court of Federal Claims.”) (citation omitted).

And so, the Court must dismiss plaintiff’s tort claim for lack of subject-matter jurisdiction.

RCFC 12(b)(1).

C. The Court May Not Consider Plaintiff’s

Civil Rights And Constitutional Law Claims

The Court is similarly without jurisdiction to consider plaintiff’s civil rights and

constitutional law claims. Plaintiff alleges that the VA’s actions deprived Mr. Kelly of his “civil

rights to life” and violated Mr. Kelly’s rights under the Fourteenth Amendment. Pl. Resp. at 6,

21. But, Congress has committed jurisdiction over plaintiff’s civil rights claim to the United

States district courts. See 28 U.S.C. § 1343(a)(4) (“The district courts shall have original

jurisdiction of any civil action authorized by law to be commenced by any person . . . (4) To

recover damages or to secure equitable or other relief under any Act of Congress providing for

the protection of civil rights . . . .”); see also 42 U.S.C. § 1981; Cherbanaeff v. United States, 77

Fed. Cl. 490, 502 (2007) (“Where Congress has granted exclusive jurisdiction in certain courts,

these statutory provisions govern.”). And so, plaintiff may not pursue her civil rights claim in

this Court.

To the extent that plaintiff seeks to assert a constitutional law claim based upon the

Fourteenth Amendment, the Court must also dismiss this claim. The United States Court of

Appeals for the Federal Circuit has held that the Fourteenth Amendment does not provide a basis

for establishing jurisdiction under the Tucker Act, because this constitutional law provision does

not mandate the payment of money damages. LeBlanc v. United States, 50 F.3d 1025, 1028

(Fed. Cir. 1995). And so, the Court must also dismiss this claim for lack of subject-matter

jurisdiction. Id.

D. Plaintiff May Proceed In Forma Pauperis

As a final matter, plaintiff may proceed in this matter without paying the Court’s filing

fee. Plaintiff has moved to proceed in this matter in forma pauperis, because she is not

employed and is unable to pay the Court’s filing fee. Pl. Mot. for IFP at 1. This Court may

9

authorize commencement of a suit without prepayment of fees when a person submits an

affidavit including a statement of all assets, a declaration that he or she is unable to pay the fees

and a statement of the nature of the action and a belief that he or she is entitled to redress. See 28

U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due to the Court's summary disposition of this

case, and plaintiff's pro se status, the Court finds that plaintiff satisfies the statutory requirements

to proceed in forma pauperis. And so, the Court GRANTS plaintiff's motion to proceed in

forma pauperis.

V. CONCLUSION

In sum, the most generous reading of the complaint and the amended complaint make

clear that the Court does not possess subject-matter jurisdiction to consider any of plaintiff’s

claims. Plaintiff has, however, satisfied the statutory requirements to proceed in this matter

without paying the Court’s filing fee.

And so, for the foregoing reasons, the Court:

1. GRANTS the government’s motion to dismiss;

2. GRANTS plaintiff’s motion to proceed in forma pauperis;

3. DENIES-as-MOOT plaintiff’s motion for summary judgment and for oral argument;

4. DENIES-as-MOOT plaintiff’s motion for a default judgment; and

5. DISMISSES the amended complaint.

The Clerk shall enter judgment accordingly.

Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

10