Kevin L. Perry v. United States

In the United States Court of Federal Claims

No. 12-525C

(Filed: June 4, 2013)

NOT FOR PUBLICATION

)

KEVIN L. PERRY, )

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

)

)

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

On August 20, 2012 pro se plaintiff, Mr. Kevin Perry, filed a complaint against the

United States (“the government” or “the defendant”) alleging that the County of San

Diego, California violated his rights under the Veterans’ Reemployment Rights Act

(“VRRA”), 38 U.S.C. §§ 2021-2027 (1988), 1 and took his property rights when it did not

1

VRRA provides in part that eligible members of the military who previously worked for a

“State, or political subdivision thereof” must, upon proper application, be “restored by such

employer . . . to such position or to a position of like seniority, status, and pay” upon completion

of military service. 38 U.S.C. § 2021 (1988). VRRA further provides a mechanism for

enforcement of section 2021 providing that any employer who fails to comply with that section

may be required to compensate the former employee “for any loss of wages or benefits suffered

by reasons of such employer’s unlawful action.” Id. § 2022. In cases where an enforcement

action is brought against a state or a political subdivision, the statute provides that the former

1

immediately reemploy him in the same position he had held prior to a period of military

service.

According to the complaint and its attachments, Mr. Perry began work as an

Intermediate Account Clerk for the County of San Diego, California in August 1988. He

later enlisted in the United States Army and served between November 1990 and October

1994, when he was honorably discharged. In June 1994, while still on active duty, Mr.

Perry submitted to the County of San Diego an application for employment. After having

passed an employment examination, he was placed on an employment list in November

1994. On July 7, 1995, he was reemployed by the County of San Diego as an

Intermediate Account Clerk in the Department of Social Services, where he worked until

September 1997. In 2009, Mr. Perry submitted a complaint to the Department of Labor

(“DOL”) seeking a referral to the Department of Justice for alleged violations of VRRA.

The DOL concluded that Mr. Perry is “not eligible for any protections under VRRA or

USERRA, and therefore, has no right to any action on the part of the Department of

Justice.” 2 Compl. Ex. 1 at 5.

employee must file the associated complaint in the United States district court located in the area

in which the political subdivision exercises its authority. Id. The former employee may apply to

the local United States attorney for representation in such matters. Id. Similarly, the statute

provides that the Secretary of Labor “shall render aid” in the former employee’s efforts to gain

reemployment and should use other Federal Agencies in rendering such aid. Id. § 2025.

2

The DOL considered Mr. Perry’s claims under VRRA and the Uniformed Services

Employment and Reemployment Act (“USERRA”), 38 U.S.C. §§ 4301-4305 (2012), which was

signed into law in October 1994 replacing VRRA. USERRA updated, expanded, or maintained

many of VRRA’s provisions and for the purposes here, does not alter the court’s analysis.

2

Relying on the Privacy Act of 1974, 5 U.S.C. § 552a, the All Writs Act, 28 U.S.C.

§ 1651(a), and VRRA, Mr. Perry asks this court to (1) award $20,000,000 in damages

under the Privacy Act and in compensation for an alleged Fifth Amendment taking of

reemployment rights under VRRA; (2) “order the U.S. Department of Labor . . . to amend

[his] referral to the U.S. Attorney General”; and (3) “order the U.S. Attorney [] in San

Diego, CA to provide [him] with legal representation and all the benefits of 38 U.S.C. §

2022.”

Before the court is the government’s motion to dismiss 3 in which it contends that

that the court should not entertain Mr. Perry’s claims because he is subject to a court

order enjoining him from filing further civil actions without first meeting certain filing

prerequisites, which he failed to do. See Perry v. Veolia Transp., No. 11-176, 2011 WL

4566449, at *11 (S.D. Cal. Sept. 30, 2011). The government alternately moves to

dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of

Federal Claims (“RCFC”) for lack of subject matter jurisdiction and for failure to state

claim upon which relief may be granted. Mr. Perry filed a response and a proposed

amended complaint. In his response, Mr. Perry contends that the injunction issued in

Veolia Transport does not apply to the instant case because the United States was not

party to the previous action. Having carefully reviewed the pleadings and the parties’

3

The government originally filed its motion to dismiss on October 19, 2012, arguing that the

previous order issued by the United States District Court for the Southern District of California

enjoined Mr. Perry from filing the instant action. After considering the parties’ briefing, the

court ordered supplemental briefing on whether the court order enjoining Mr. Perry extends to

the instant case and whether, assuming it does not, this court has jurisdiction over Mr. Perry’s

complaint or his proposed amended complaint. Order, ECF No. 7 (March 20, 2013).

3

filings, the court has determined that oral argument is not necessary. For the reasons

discussed below, the government’s motion is GRANTED and the plaintiff’s complaint is

DISMISSED.

A. Mr. Perry’s failure to follow the terms of the district court’s injunction bars

his claims before this court

The court agrees with the government that the order issued by the district court

enjoining Mr. Perry from filing civil actions without leave extends to this case. A court

may dismiss a complaint filed by a vexatious litigant that violates an injunctive order

entered by another court. Dantzler v. United States Equal Emp’t Opportunity Comm’n,

810 F. Supp. 2d 312, 319 (D.D.C 2011) (quoting Stich v. United States, 1991 WL

150218, at *1 (S.D.N.Y. July 31, 1991)) (quotations omitted). The district court, in

noting that Mr. Perry has brought at least eight other unsuccessful suits since 1997,

mostly against the County of San Diego, concluded that his suits are “frivolous” and

“form a pattern of harassment.” Veolia Transp., 2011 WL 4566449, at *10. The court

deemed Mr. Perry a vexatious litigant and issued an order stating that “Kevin L. Perry is

enjoined from filing any new civil actions in this or any other federal court of the United

States without first obtaining leave of that court.” Id. at *11. To obtain leave, Mr. Perry

was to include certain attachments to his complaint. 4 Id. The injunction warned that

failure to comply with these terms could serve as grounds to grant a motion to dismiss a

4

The injunction required Mr. Perry to attach a copy of the order to any new complaint along

with a motion for leave to file and a sworn affidavit certifying that (1) the complaint raises a new

issue that has never been litigated; (2) the claim is well-grounded in fact and law and is not

frivolous; and (3) that he will comply with all rules of civil procedure. Veolia Transp., 2011 WL

4566449, at *11.

4

new complaint. Id. Mr. Perry did not include all the attachments required by the

injunction in either his original complaint or his proposed first amended complaint.

Accordingly, Mr. Perry violated the terms of the injunction issued by the district court

and dismissal is appropriate on those grounds. 5 Dantzler, 810 F. Supp. 2d at 319-20.

B. The court lacks subject matter jurisdiction to consider Mr. Perry’s claims in

any event

The court holds that even if the district court’s injunction did not bar Mr. Perry

from bringing the instant case, neither Mr. Perry’s complaint nor his amended complaint

establish a basis for this court’s jurisdiction. The failure by a plaintiff to establish subject

matter jurisdiction requires the court to dismiss the complaint in its entirety. See

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Although the court will read a pro

se plaintiff’s complaint liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the plaintiff

is not excused from stating a non-frivolous claim within the jurisdiction of the court.

Wilson v. United States, 404 F. App’x 499, 500 (Fed. Cir. 2010) (per curiam).

5

Moreover, the court finds no merit in Mr. Perry’s unsupported argument that the injunction is

inapplicable here or otherwise improper because the government was not party to the previous

litigation. To the contrary, the injunction noted Mr. Perry’s repeated abuses of state and federal

court systems and expressly enjoined him from filing “any new civil actions in this or any other

federal court” without first obtaining leave. Veolia Transp., 2011 WL 4566449, at *11

(emphasis added). The language is not limited to subsequent cases involving the same

defendants in that case. Lastly, had Mr. Perry wanted to challenge the validity or legal

soundness of the district court’s injunction, the proper avenue would have been an appeal to the

United States Court of Appeals for the Ninth Circuit—an action he apparently did not take. See

Ullman v. United States, 64 Fed. Cl. 557, 571 (2005) (“The proper course for a dissatisfied

litigant to redress legal errors is through appeal, not by collateral attack on the judgment in a

separate lawsuit.”); see also Taylor v. United States, No. 08-443C, 2008 WL 4925214, at *9

(Fed. Cl. Oct. 29, 2008) (holding that a plaintiff cannot assert a claim that would require this

court to reconsider a determination by another court that the plaintiff is a vexatious litigant

because doing so would require this court to “scrutinize” the actions of that other court).

5

Under the Tucker Act, the court possesses jurisdiction over “any 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.”

28 U.S.C. § 1491(a)(1) (2012). The Tucker Act does not, however, create a substantive

cause of action or right to recover damages from the United States. United States v.

Bormes, 133 S. Ct. 12, 16-17 (2012). Rather, the plaintiff must identify a separate source

of substantive law creating the right to money damages. Scheidel v. United States, 497 F.

App’x 997, 998 (Fed. Cir. 2012). The Tucker Act, and the jurisdiction it grants,

moreover, is “displaced” where the law “imposing monetary liability on the United States

contains its own judicial remedies.” Bormes, 133 S. Ct. at 18.

The court does not possess jurisdiction to adjudicate Mr. Perry’s claim for civil

remedies under the Privacy Act, 5 U.S.C. § 552a(g)(1), and therefore must dismiss this

claim pursuant to RCFC 12(b)(1). The Privacy Act expressly provides that a claimant

seeking civil remedies under the Act’s provisions “may bring a civil action against the

agency, and the district courts of the United States shall have jurisdiction in the matters

under the provisions of this subsection.” 5 U.S.C. 552a(g)(1)(D). It is well settled in the

United States Court of Federal Claims (“COFC”) that this language grants district courts

exclusive jurisdiction for claims arising under the Privacy Act. Wagstaff v. United

States, 105 Fed. Cl. 99, 110 (2012) (citing Treece v. United States, 96 Fed. Cl. 226, 232

(2010) (“[P]laintiff’s claims under the Privacy Act of 1974 . . . are dismissed because the

federal district courts have exclusive jurisdiction over such matters.”)). Moreover, the

6

Federal Circuit has held that the Privacy Act does not create a substantive right to money

damages precluding this court’s jurisdiction under the Tucker Act. Snowton v. United

States, 216 F. App’x 981, 983 (Fed. Cir. 2007). Accordingly, the plaintiff’s claims for

damages under the Privacy Act are dismissed.

Similarly, the court finds that it does not have jurisdiction either to compel the

DOL to “amend [Mr. Perry’s] referral to the U.S. Attorney General” to represent him for

certain claims he believes he possesses under VRRA, Compl. 8, or to “order” a United

States Attorney to represent him in seeking claims under the 38 U.S.C. § 2022 by way of

the All Writs Act, 28 U.S.C. § 1651(a). Similar to above, Mr. Perry does not provide a

jurisdictional basis for the relief sought in either his complaint or his proposed amended

complaint. Generally, the COFC’s jurisdiction under the Tucker Act is limited to claims

seeking monetary relief. Gonzales & Gonzales Bonds and Ins. Agency, Inc. v. Dep’t of

Homeland Sec., 490 F.3d 940, 943 (Fed. Cir. 2007); see also Simanonok v. Simanonok,

918 F.2d 947, 952 (Fed. Cir. 1990) (“[I]njunctive claims . . . are not cognizable in a . . .

Tucker Act case, absent a concurrent colorable claim for monetary recovery.”). Mr.

Perry’s reliance on the All Writs Act 6 does not confer on the court a separate grant of

jurisdiction apart from the Tucker Act to issue the equitable relief he seeks absent a

cognizable monetary claim. Tasby v. United States, 87 Fed. Cl. 180, 180 (2009) (“[The

All Writs Act] permits writs in aid of jurisdiction, but does not itself create jurisdiction.”)

(quotation and citation removed). Moreover, to the extent that Mr. Perry seeks relief

6

The All Writs Act, 28 U.S.C. § 1651(a) provides: “The Supreme Court and all courts

established by Act of Congress may issue all writs necessary or appropriate in aid of their

respective jurisdiction and agreeable to the usages and principles of law.”

7

under VRRA, the Act itself expressly vests jurisdiction in the district courts and not in the

COFC. See 38 U.S.C. § 2022 (“If any employer, who is a private employer or a State or

political subdivision thereof, fails or refuses to comply with the [Act’s] provisions . . . the

[appropriate] district court . . . shall have the power . . . to require such employer to

comply with such provisions and to compensate such person. . . .”). The court therefore

must dismiss Mr. Perry’s claims to the extent that they seek equitable relief from this

court.

Finally, this court does not have jurisdiction to consider Mr. Perry’s Fifth

Amendment claim for monetary damages because the claim is rooted in an alleged due

process violation rather than a taking of a private property interest under the Takings

Clause. Hampel v. United States, 429 F. App’x 995, 998 (Fed. Cir. 2011). In order to

state a claim under the Takings Clause, Mr. Perry must establish that he had a cognizable

Fifth Amendment property interest and that it was taken by the government. Acceptance

Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009). Mr. Perry relies on Board

of Regents v. Roth, 408 U.S. 564 (1972), in support of his assertion that he has a property

interest in certain VRRA benefits. 7 Compl. 3, prop. amend. Compl. 22.

The Federal Circuit, however, has expressly held that Roth does not support a

Fifth Amendment takings claim for purposes of COFC jurisdiction. Adams v. United

States, 391 F.3d 1212, 1220 (Fed. Cir. 2004). The Federal Circuit has explained the

7

Mr. Perry quotes the following passage from Roth in support of his assertion that the benefits

offered to those eligible under VRRA conferred to him a property interest: “To have a property

interest in a benefit, a person clearly must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of

entitlement to it.” Roth, 408 U.S. at 577.

8

importance of avoiding confusion between “a property right cognizable under the

Takings Clause of the Fifth Amendment with a due process right to payment of a

monetary entitlement under a compensation statute.” Id. As the Federal Circuit has

stated:

Generally, entitlements are considered to be government conferred benefits,

safeguarded exclusively by procedural due process. See [Roth, 408 U.S. at

577]. In light of this, entitlements are often referred to as “property

interests” within the meaning of the Due Process Clause in cases decided

under that clause, but such references have no relevance to whether they are

“property” under the Takings Clause.

Id. at 1220 n.4. Mr. Perry’s claim for compensation for benefits to which he claims

entitlement are based upon a due process theory for recovery and this court does not have

jurisdiction to consider such claims. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.

Cir. 1995) (noting that the Due Process Clause of the Fifth Amendment cannot provide

the COFC with jurisdiction because it “do[es] not mandate payment of money by the

government”).

As a result, to the extent VRRA conferred any vested rights upon Mr. Perry—an

issue not reached here—such rights are safeguarded only by procedural due process and

not by the Takings Clause. Accordingly, this court must dismiss Mr. Perry’s takings

claim for lack of jurisdiction.

C. Conclusion

For all of the above reasons, the government’s motion to dismiss is GRANTED

and the plaintiff’s complaint is DISMISSED in full. The clerk is directed to enter

9

judgment accordingly. The parties shall bear their own costs.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Judge

10