# Beesley v. United States

> United States Court of Federal Claims · March 29, 2023

URL: https://www.frixlaw.com/law-library/cases/9383093

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 29, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Matthew H. Solomson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9383093

## How later opinions describe it (automated extraction)

- explaining that the Court of Federal Claims lacks jurisdiction over constitutional claims that do not mandate the payment of money

## Opinion text

In the United States Court of Federal Claims
No. 22-1794C
(Filed: March 29, 2023)

NOT FOR PUBLICATION

)
DEANNA DAWN BEESLEY, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)

Deanna Dawn Beesley, Evergreen, CO, pro se.

Elinor Joung Kim, Civil Division, United States Department of Justice, Washington, D.C.,
for Defendant.

OPINION AND ORDER
SOLOMSON, Judge.

On December 5, 2022, Plaintiff, Deanna Dawn Beesley, a resident of Evergreen,
Colorado, proceeding pro se, filed a complaint against Defendant, the United States, in
this Court. ECF No. 1 (“Compl.”) at 1. On December 13, 2022, the Court stayed the case
while it evaluated the complaint, sua sponte, for probable lack of jurisdiction pursuant to
Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”). ECF
No. 5.
Plaintiff’s complaint centers on a mask mandate policy instituted by her employer,
Whole Foods Market (“Whole Foods”), during the COVID-19 pandemic. Compl. at 2.
Plaintiff alleges that on June 1, 2021, Whole Foods instituted a policy requiring all
employees not vaccinated against COVID-19 to wear a mask while at work. Id. 1 Plaintiff,
however, alleges that her doctor advised her that she is “immune compromised” and

1In evaluating Plaintiff’s complaint for jurisdictional purposes, the Court assumes that the facts
alleged in Plaintiff’s complaint are true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019).

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recommended that she not receive the COVID-19 vaccine. Id. at 8. Relying on this advice,
Plaintiff did not get vaccinated. Id. “Due to the nature of the genetic altering MRNA
vaccines,” Plaintiff alleges that Whole Foods’ policy “demonstrate[s] genetic
discrimination against unvaccinated employees.” Id. at 2.
In addition, Plaintiff alleges that Whole Foods provided free cloth masks to all its
employees as a part of its mask mandate policy. Compl. at 2. But Plaintiff suffers from
asthma and other medical issues, which she alleges are exacerbated while wearing a cloth
mask. Id. When Plaintiff brought this problem to Whole Foods’ attention, requesting that
Whole Foods provide her with face shields instead of face masks, Whole Foods allegedly
refused. Id. Because Whole Foods “would not provide a free face shield but provided
free masks for all other employees,” Plaintiff claims that she was further discriminated
against. Id.
Plaintiff also argues that Whole Foods’ mask mandate policy violated “the Federal
Food, Drug, and Cosmetic Act,” because “[m]asks are under an Emergency Use
Authorization and any EUA drug or device cannot be mandated” under this Act. Compl.
at 2. 2 She further posits that “EUA products are by definition experimental and thus
require the right to refuse . . . [u]nder the Nuremberg Code, the foundation of ethical
medicine, no one may be coerced to participate in a medical experiment.” Id.
Plaintiff’s complaint acknowledges that the “United States Court of Federal
Claims has limited jurisdiction (see, e.g., 28 U.S.C. §§ 1491–1509),” but Plaintiff
nevertheless alleges that the Court has jurisdiction over her “civil rights complaint
pursuant to 42 U.S.C. § 1983 (non-prisoners).” Compl. at 1.
Plaintiff claims to have suffered “mental and physical anguish” from being forced
to wear a cloth mask and being discriminated against. Compl. at 3. Specifically, she
alleges that Whole Foods’ policy caused to her inhale excessive carbon dioxide and
phlegm, which led to medical costs and multiple respiratory infections; that she suffered
“[over] 10 months of continued discrimination”; and that Whole Foods’ actions caused
her a loss of social skills and dignity. Id. For these reasons, Plaintiff is seeking a “total
settlement” of $300,000. Id.
Plaintiff is proceeding pro se, and this Court generally holds a pro se plaintiff’s
pleadings to “less stringent standards.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam). The Court, however, “may not . . . take a liberal view of [a] jurisdictional
requirement and set a different rule for pro se litigants only.” Kelley v. Sec’y of Dep’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). In other words, even a pro se plaintiff “bears
the burden of proving that the Court of Federal Claims possesse[s] jurisdiction over his
complaint.” Sanders v. United States, 252 F.3d 1329, 1333 (Fed. Cir. 2001); see also 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 court’s jurisdictional requirements.”). In

2In particular, Plaintiff cites “Title 21 U.S.C. § 360bbb–3(e)(1)(A)(ii)(I-III) of the Federal Food,
Drug, and Cosmetic Act.” Compl. at 2.

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the absence of subject-matter jurisdiction, the Court “must dismiss the action.” RCFC
12(h)(3); see also Kissi v. United States, 493 F. App’x 57, 58 (2012) (“If the Court of Federal
Claims determines that it lacks subject matter jurisdiction, it must dismiss the claim.”
(citing RCFC 12(h)(3))).
Generally, “[t]he jurisdiction of the Court of Federal Claims is defined by the
Tucker Act, which gives the court authority to render judgment on certain monetary
claims against the United States.” RadioShack Corp. v. United States, 566 F.3d 1358, 1360
(Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(1)). The Tucker Act provides this Court with
jurisdiction to decide “actions pursuant to contracts with the United States, actions to
recover illegal exactions of money by the United States, and actions brought pursuant to
money-mandating statutes, regulations, executive orders, or constitutional provisions.”
Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004). The Tucker Act, however, “does
not create a substantive cause of action; in order to come within the jurisdictional reach
. . . of the Tucker Act, a plaintiff must identify a separate source of substantive law that
creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc). Moreover, “[n]ot every claim invoking the Constitution, a federal statute,
or a regulation is cognizable under the Tucker Act.” United States v. Mitchell, 463 U.S. 206,
216 (1983). With respect to “money-mandating” claims, a plaintiff must identify a law
that “can fairly be interpreted as mandating compensation by the Federal Government
for the damage sustained.” Eastport S. S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct.
Cl. 1967).

For the reasons explained below, the Court dismisses, sua sponte, Plaintiff’s
complaint for lack of subject-matter jurisdiction pursuant to RCFC 12(h)(3). See Folden v.
United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (“Subject-matter jurisdiction may be
challenged at any time by the parties or by the court sua sponte.” (citing Fanning, Phillips,
Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))). 3

First, Plaintiff’s claim is against Whole Foods, not the United States, and thus this
Court lacks jurisdiction. Plaintiff does not allege that the United States caused her alleged

3 While the Court has liberally construed Plaintiff’s complaint, see Haines v. Kerner, 404 U.S. 519,
520 (1972), the Court only addresses the claims it could reasonably construe. See Demes v. United
States, 52 Fed. Cl. 365, 369 (2002) (“While a court should be receptive to pro se plaintiffs and assist
them, justice is ill-served when a jurist crosses the line from finder of fact to advocate.”); see also
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (“The leniency granted to pro se petitioners . . .
is not boundless. Pro se plaintiffs are treated to less stringent standards, but ‘they are not
automatically entitled to take every case to trial.’ Traditionally the ‘leniency standard’ has still
required basic pleading standards. Arguably, hanging the legal hat on the correct peg is such a
standard, and ‘[l]iberal construction does not require a court to conjure allegations on a litigant’s
behalf.’” (second alteration in original) (quoting, respectively, Pilgrim v. Littlefield, 92 F.3d 413, 416
(6th Cir. 1996), Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and Erwin v. Edwards, 22 F. App’x
579, 580 (6th Cir. 2001))).

3
injuries; rather, she alleges that the grocery chain’s mask policy was discriminatory and
caused her health problems. Pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), this
Court’s jurisdiction is limited to claims against the United States. See United States v.
Sherwood, 312 U.S. 584, 588 (1941) (“[The Court of Federal Claim’s] jurisdiction is confined
to the rendition of money judgments in suits brought for that relief against the United
States, and if the relief sought is against others than the United States[,] the suit as to them
must be ignored as beyond the jurisdiction of the court.” (citations omitted)); Nat’l City
Bank of Evansville v. United States, 163 F. Supp. 846, 852 (Ct. Cl. 1958) (“It is well established
that the jurisdiction of this court extends only to claims against the United States, and
obviously a controversy between private parties could not be entertained.” (citations
omitted)).
Second, even if actions of the United States somehow were implicated in Plaintiff’s
complaint, Plaintiff “d[oes] not assert any claims deriving from money-mandating
sources of law not sounding in tort” that would place her claims within this Court’s
jurisdiction. Lawton v. United States, 621 F. App’x 671, 672 (Fed. Cir. 2015). Although she
alleges that Whole Foods violated the Federal Food, Drug, & Cosmetic Act, the provision
she cites is not money-mandating. See 21 U.S.C. § 360bbb-3; Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“[I]n order to come within the jurisdictional
reach . . . of the Tucker Act, a plaintiff must identify a separate source of substantive law
that creates the right to money damages.”). And to the extent that Plaintiff alleges tort
claims, they fall outside this Court’s jurisdiction. See 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.” (citing 28 U.S.C.
§ 1491(a)(1))).

Third, “[c]laims founded on state law are also outside the scope of the limited
jurisdiction of the Court of Federal Claims.” Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303,
1307 (Fed. Cir. 2007). This Court does not have the authority to adjudicate Plaintiff’s
claims to the extent they are predicated on state law.

Fourth, the Court does not possess jurisdiction over claims based on 42 U.S.C. §
1983, contrary to Plaintiff’s assertion. There are two distinct defects with her § 1983
claims: (1) Plaintiff does not identify any state actors as defendants, see Filarsky v. Delia,
566 U.S. 377, 380 (2012) (“Section 1983 provides a cause of action against state actors who
violate an individual’s rights under federal law.” (citing 42 U.S.C. § 1983)), and (2) this
Court does not have jurisdiction, in any event, to decide claims arising under 42 U.S.C.
§ 1983. See Tucker v. United States, 142 Fed. Cl. 697, 712 (2019) (“To the extent plaintiff is
trying to allege a general violation of her civil rights under 42 U.S.C. § 1983, the United
States Court of Federal Claims lacks jurisdiction to hear claims alleging a deprivation of
civil rights under color of law.” (citing, inter alia, May v. United States, 104 Fed. Cl. 278,
284 (2012), aff’d, 534 F. App’x 930, 934 (Fed. Cir. 2013))).

4
Finally, even if the Court were to find Plaintiff’s two counts of “genetic
discrimination” sufficient to allege violations of the Equal Protection Clause or the Due
Process Clause, this Court lacks jurisdiction over such claims as well. Compl. at 4; see
Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014) (“[T]he trial court does not
have jurisdiction over . . . claims under the due process, equal protection or supremacy
clauses of the United States Constitution. These claims do not fall within the court’s
jurisdiction as defined by the Tucker Act because none of those statutes or constitutional
provisions mandate the payment of money.”); LeBlanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir. 1995) (explaining that the Court of Federal Claims lacks jurisdiction over
constitutional claims that do not mandate the payment of money). Nor does the Court
have jurisdiction over employment discrimination claims. See, e.g., Taylor v. United States,
310 Fed. App’x 390, 393 (Fed. Cir. 2009) (“Because Title VII vests jurisdiction over
discrimination claims exclusively in the [United States] district court[s], the Court of
Federal Claims cannot exercise jurisdiction over those claims.”).

For the reasons explained above, the Court hereby DISMISSES Plaintiff’s
complaint for lack of subject-matter jurisdiction. The Clerk of the Court is directed to
enter JUDGMENT for the government.

IT IS SO ORDERED.

s/Matthew H. Solomson
Matthew H. Solomson
Judge

5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9383093. Public record. Not legal advice.