Petition for Writ of Certiorari — Estate of Jason Allen Smallwood, Petitioner v. United States

APPENDICES TO THE PETITION

Appx.A-1

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

ESTATE OF JASON ALLEN SMALLWOOD,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2017-1915

______________________

Appeal from the United States Court of Federal

Claims in No. 1:16-cv-00700-CFL, Judge Charles F.

Lettow.

______________________

JUDGMENT

______________________

JONATHAN BRYAN KELLY, Jonathan Kelly &

Associates, Raleigh, NC, argued for plaintiffappellant.

NATHANAEL YALE, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for defendant-appellee. Also

represented by CHAD A. READLER, ROBERT E.

KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.;

SHESSY DAVIS, Litigation Division, United States

Army Judge Advocate General's Corps, Ft. Belvoir,

VA; WILLIAM KLOTZBUCHER, Office of Counsel,

United States Department of Veterans Affairs,

Washington, DC.

______________________

Appx.A-2

THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (DYK, WALLACH, and CHEN, Circuit

Judges).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

April 5, 2018

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

Appx.B-1

In the United States Court of Federal Claims

No. 16-700C

(Filed: February 2, 2017)

*********************

THE

ESTATE

OF

JASON ALLEN

SMALLWOOD,

Plaintiff,

v.

UNITED STATES,

Defendant.

*********************

)

) Suit for breach of

) contract by estate of

) military serviceman

) wounded on active

) duty who later died by

) his own hand;

) motion to dismiss for

) lack of subject matter

) jurisdiction

)

Jonathan B. Kelly, Jonathan Kelly & Associates,

PLLC, New York, New York, for plaintiff.

Nathanael B. Yale, Trial Attorney, Commercial

Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for

defendant. With him on the briefs were Benjamin C.

Mizer, Principal Deputy Assistant Attorney General,

Civil Division, and Robert E. Kirschman, Jr., Director,

and Martin F. Hockey, Jr., Assistant Director,

Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C. Of

counsel were Christopher J. Koschnitzky, Captain,

United States Army, United States Army Legal

Service Agency, and Bill Klotzbucher and Eric Raun,

Department of Veterans Affairs, Office of General

Counsel.

Appx.B-2

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, the Estate of Jason Allen Smallwood (“the

Estate”), brings this action on behalf of Mr.

Smallwood, a former member of the United States

Army, for alleged breaches of an express and impliedin-fact contract by the United States (“the

government”). Mr. Smallwood served in Afghanistan

from 2011 to 2012, was wounded while serving, and

received a post-deployment healthcare assessment

before his discharge in 2012. Mr. Smallwood

subsequently took his own life. The Estate alleges

that the Army breached an express service contract in

making its healthcare assessment of Mr. Smallwood

because it failed to ensure that Mr. Smallwood was

referred for further healthcare. Additionally, the

Estate alleges that the United States Department of

Veterans Affairs (“VA”) breached an implied-in-fact

contract by failing to provide Mr. Smallwood with

healthcare for which he had allegedly applied.

Pending before the court is the government’s motion

to dismiss plaintiff’s complaint for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) of the

Rules of the Court of FederalClaims (“RCFC”). Def.’s

Mot. to Dismiss (“Def.’s Mot.”), ECF No. 7. For the

reasons stated, the government’s motion is granted.

BACKGROUND

While serving in the North Carolina National Guard,

Mr. Smallwood was ordered to active duty in the

Army on approximately September 2, 2011, and

subsequently was deployed to Afghanistan. Compl. ¶¶

5-7. In Afghanistan, Mr. Smallwood was exposed to

three “improvised explosive device . . . blasts” on June

16 and 17, 2012. Compl. ¶¶ 8-11. Mr. Smallwood

Appx.B-3

received a concussion evaluation on June 19, 2012 and

then “returned to active duty the following day

without limitations.” Compl. ¶¶ 12, 15. In September

2012, Mr. Smallwood was ordered to return to the

United States “for further medical care and discharge

from service.” Compl. ¶ 16.

On approximately September 8, 2012, prior to his

discharge, Mr. Smallwood received a “PostDeployment Health Assessment.” Compl. ¶ 17, Ex. D.

In that assessment, a healthcare provider determined

that Mr. Smallwood did not need a referral for further

medical care. Compl. Ex. D at 7. The Estate alleges

that Mr. Smallwood completed an online application

for healthcare through the VA on the same day.

Compl. ¶ 17. On approximately September 12, 2012,

Mr. Smallwood was released from active duty. Compl.

¶ 18. Less than two months later, on November 5,

2012, Mr. Smallwood fatally shot himself. Compl. ¶

20.

The Estate of Jason Allen Smallwood brought this

suit on June 16, 2016 for alleged breaches of contract.

See generally Compl. In Count I, the Estate alleges

that the “United States Army breached the active

duty service contract with Mr. Smallwood by not

ensuring that he was referred for healthcare.” Compl.

¶ 22. Specifically, the Estate alleges that deficiencies

in Mr. Smallwood’s post-deployment healthcare

assessment

violated the

Army’s

healthcare

obligations under 10 U.S.C. § 1145, which allegedly

provides the authority for an “active duty service

contract” with Mr. Smallwood that “impose[s] a duty

upon the Secretary of the Army.” Compl. ¶¶ 22-24. In

Count II, the Estate alleges that the VA “breached an

implied-in-fact contract for healthcare with Mr.

Smallwood.” Compl. ¶ 28. Mr. Smallwood allegedly

applied for, but never received, healthcare benefits

from the VA. Compl. ¶¶ 33, 35. As a result, the Estate

Appx.B-4

seeks “damages in an amount to be determined.”

Compl. at 7.

The government responded with a motion to dismiss

due to lack of subject matter jurisdiction pursuant to

RCFC 12(b)(1). Def.’s Mot. The motion has been fully

briefed and a hearing was held on January 12, 2017.

STANDARDS FOR DECISION

As plaintiff, the Estate has the burden of

establishing jurisdiction. See Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

Pursuant to the Tucker Act, this court has jurisdiction

“to render judgment upon 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). The Tucker Act waives

sovereign immunity and thus allows a plaintiff to sue

the United States for money damages. United States

v. Mitchell, 463 U.S. 206, 212 (1983). Nonetheless, it

does not provide a plaintiff with any substantive

rights. United States v. Testan, 424 U.S. 392, 398

(1976). To establish jurisdiction, “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

in relevant part) (citing Mitchell, 463 U.S. at 216;

Testan, 424 U.S. at 398).

ANALYSIS

A. Count I: Express Contract with the Army

In Count I, the Estate alleges that the government

breached its “active duty service contract” with Mr.

Smallwood for healthcare. Compl. ¶ 22. As the source

Appx.B-5

of that contract, the Estate relies on 10 U.S.C. § 1145,

which entitles members of the armed forces who have

been separated from active duty in specified

circumstances to receive transitional health benefits.

See Compl. ¶¶ 23-24 (referring to 10 U.S.C. § 1145(a)).

Regarding transitional healthcare, Subsection

1145(a) provides in pertinent part that “a member of

the armed forces scheduled to be separated from

active duty” is required “to undergo a physical

examination immediately before that separation.” 10

U.S.C. § 1145(a)(5)(A). If a member of the armed

forces “receives an indication for a referral for follow

up treatment from the health care provider who

performs the examination,” the government must

“ensure that appropriate actions are taken to assist”

that individual. 10 U.S.C. § 1145(a)(6)(A). The Estate

alleges that Mr. Smallwood failed to receive proper

care during his post-deployment healthcare

assessment because his healthcare provider relied on

self-reporting and a computer error, and failed to

evaluate a computerized tomography (“CT”) scan.

Compl. ¶¶ 24-27.

The salient question raised is whether Section 1145

engenders a contractual obligation. In a case heard by

the Federal Circuit en banc, the court of appeals

addressed whether an implied-in-fact contract arose

when military recruiters promised free lifetime

medical care to recruits who served on active duty for

20 years or more. Schism v. United States, 316 F.3d

1259, 1262 (Fed. Cir. 2002) (en banc). The Federal

Circuit rejected plaintiffs’ contract claim, stating:

Congress’ authority and the various courts’

(i.e., the Supreme Court, our court, and our

predecessor court) consistent interpretation

thereof demonstrate that military health care

benefits as a form of compensation have long

Appx.B-6

been exclusively a creature of statute, not

contract. Consequently, the discussions with

recruiters could not have formed binding

contracts with the government at the time

[plaintiffs] joined the Air Force. Their claim

for breach of an implied-in-fact contract that

would give them both an entitlement to

lifetime free medical care at military facilities

and an entitlement to civilian health

insurance for any insufficiency in those

military facilities must fail as a matter of law.

Id. at 1276. Here, similarly, Mr. Smallwood’s postdeployment healthcare assessment is governed

exclusively by Section 1145, not by contract.

The Estate supports its alleged contract claim by

citing DeCrane v. United States, 231 Ct. Cl. 951

(1982). See Compl. ¶ 22. 1

1 The Estate also relies on Bowen v. Massachusetts, 487 U.S. 879

(1988) and Pines Residential Treatment Ctr., Inc. v. United

States, 444 F.3d 1379 (Fed. Cir. 2006) as a basis for the court’s

jurisdiction over its contractual claim. See Pl.’s Resp. to Def.’s

Mot. to Dismiss (“Pl.’s Opp’n”) at 4-5, ECF No. 8. Neither decision

supports the Estate’s position. In Bowen, the Supreme Court

addressed “whether a federal district court has jurisdiction to

review a final order of the Secretary of Health and Human

Services refusing to reimburse a State for a category of

expenditures under its Medicaid program.” 487 U.S. at 882. The

jurisdictional dispute centered on “the meaning of the

Administrative Procedure Act” and whether the Court of Federal

Claims had exclusive jurisdiction over the claim, which it did not.

Id. at 891, 904-08. Although the Court drew a distinction

between monetary relief and money damages, id. at 893-94, the

Court simply did not address alleged military contracts and

healthcare. And in Pines, the Federal Circuit determined that

Appx.B-7

In DeCrane, the Court of Claims ruled that it had

jurisdiction over plaintiffs’ breach of contract claim

regarding reenlistment agreements that plaintiffs

signed while serving in the Army, 231 Ct. Cl. at 95253, but it also granted summary judgment in favor of

the government on the ground that plaintiffs had not

stated a valid claim for relief, id. at 953.

Subsequently, in Schism, the Federal Circuit held en

banc that Congress had not delegated to secretaries of

military departments the authority to contract with

recruits for health benefits. 316 F.3d at 1268-71. In

doing so, the court of appeals explicitly distinguished

the facts in Schism from those in DeCrane. See id. at

1275 (citing DeCrane, 231 Ct. Cl. 951; Grulke v.

United States, 228 Ct. Cl. 720 (1981)). Unlike the

benefits promised to plaintiffs in DeCrane, which

originated from written reenlistment agreements, the

healthcare benefits at issue in Schism were

“exclusively a creature of statute.” Id. at 1275-76.

Accordingly, the Federal Circuit in Schism

determined that DeCrane was “not in conflict with

established Supreme Court case law that military pay

and pay-related benefits cannot ever be a matter of

contract, but must be governed exclusively by statutes

and regulations.” Id. at 1275. Here, unlike DeCrane

and similar to Schism, the Estate does not point to

any written agreement between Mr. Smallwood and

the Army; it instead relies solely on 10 U.S.C. § 1145.

this court did not have jurisdiction over petitioner’s claim for

Medicare reimbursement, rejecting petitioner’s attempt to style

the claim as a breach of contract. 444 F.3d at 1381. Here,

similarly, the Estate is unsuccessful in denominating its claim of

entitlement to military healthcare as a claim for breach of

contract.

Appx.B-8

The Estate’s claim is based on statute, and its attempt

to label such a claim as a “contract” is unavailing. See

Jackson v. United States, __ Fed. Appx. __, __, No.

2016-2253, 2016 WL 6518563, at *3 (Fed. Cir. Nov. 3,

2016) (ruling that “military pay is governed by statute

and not by common law rules concerning private

contracts”) (citing Schism, 316 F.3d at 1272); Pines

Residential Treatment Ctr., 444 F.3d at 1380

(“Regardless of a party’s characterization of its claim,

‘[the court] look[s] to the true nature of the action in

determining the existence or not of jurisdiction.’”)

(quoting Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed.

Cir. 1994)). The court thus lacks jurisdiction over the

Estate’s contract claim in Count I. 2

As the government notes, even if the court construed the

Estate’s claim as a statutory claim, the court would still lack

jurisdiction. Def.’s Mot. at 7-8. Section 1145 provides for certain

healthcare benefits to members of the armed forces, such as the

provision relied upon by the Estate that entitles members to

physical examinations before separation from active duty and

transitional assistance with health care. See 10 U.S.C. §§

1145(a)(5)(A), (a)(6)(A). Nonetheless, it does not mandate

compensation and does not specify any right to monetary

payment. See generally 10 U.S.C. § 1145. Section 1145 thus

arguably cannot “fairly be interpreted as mandating

compensation” from the government. See United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citing

Mitchell, 463 U.S. at 217). The Estate cannot circumvent the

money-mandating jurisdictional requirement by characterizing

the government’s statutory obligations as contractual

obligations. See Boston v. United States, 43 Fed. Cl. 220, 226-27

(1999) (“Where, as here, the underlying laws and regulations

allegedly violated do not mandate the payment of money, this

jurisdictional flaw cannot be sidestepped by transforming the

complaint into one based on breach of an implied contract.”)

(citing Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728,

2

Appx.B-9

B. Count II: Implied Contract with the VA

In Count II, the Estate alleges that the VA

“breached an implied-in-fact contract for healthcare

with Mr. Smallwood” because Mr. Smallwood applied

for healthcare benefits from the VA but never received

them. Compl. ¶¶ 28, 31-35. This court lacks

jurisdiction over allegations regarding the wrongful

denial of benefits by the VA. See, e.g., Prestidge v.

United States, 611 Fed. Appx. 979, 982-83 (Fed. Cir.

2015); Lewis v. United States, 124 Fed. Cl. 754, 75657 (2016); Kalick v. United States, 109 Fed. Cl. 551,

556-57 (2013), aff’d, 541 Fed. Appx. 1000 (Fed. Cir.

2013). A provision of the Department of Veterans

Affairs Codification Act, Pub. L. No. 102-83, § 2(a),

105 Stat. 378, 388 (1991) (codified at 38 U.S.C. § 511),

provides that “[t]he Secretary [of the VA] 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.” 38 U.S.C. §

511(a). If an individual receives an adverse decision

739 (1982)), superseded by regulation as stated in Roberts v.

United States, 104 Fed. Cl. 598 (2012).

Additionally, to the extent that the Estate’s claim is based on

negligence or intentional wrongdoing due to the alleged

deficiencies in Mr. Smallwood’s healthcare assessment, the court

does not have jurisdiction over such allegations because they

would be based in tort. See Rick’s Mushroom Serv., Inc. v. United

States, 521 F.3d 1338, 1343 (Fed. Cir. 2008). In that regard, the

Estate has brought a wrongful death claim before the Army that

remains pending. See Hr’g Tr. 12:21 to 13:12 (Jan. 12, 2017).

Appx.B-10

from the Secretary, the Veterans’ Judicial Review Act,

Pub. L. No. 100-687, 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). The

Court of Federal Claims is not part of this statutory

regime. Therefore, because the Estate’s claim is based

upon the VA’s alleged failure to provide Mr.

Smallwood with healthcare benefits, the court does

not have jurisdiction over Count II.

CONCLUSION

The circumstances of Mr. Smallwood’s Army service

and wounding in Afghanistan and of his subsequent

demise are tragic. Nonetheless, for the reasons stated,

the government’s motion to dismiss pursuant to

RCFC 12(b)(1) is GRANTED. The clerk shall enter

judgment in accord with this disposition.

No costs.

It is so ORDERED.

/s/ Charles F. Lettow

Charles F. Lettow

Judge

Appx.C-1

ORIGINAL Receipt number 9998-3381477

IN THE

UNITED STATES COURT OF FEDERAL CLAIMS

The Estate of

)

JASON ALLEN SMALLWOOD, )

)

Plaintiff,

)

)

V.

)

)

UNITED STATES OF AMERICA,)

)

Defendant.

)

No.16-700C

COMPLAINT

Plaintiff, The Estate of Jason Allen Smallwood, by

its undersigned counsel, complains of Defendant,

United States of America, as follows:

NATURE OF ACTION

1. This action seeks damages for breach of contract by

Defendant.

JURISDICTION AND VENUE

2. This Court has jurisdiction over the claims asserted

herein because the United States of America is the

Defendant, pursuant to the Tucker Act, 28 U.S.C. §

1491(a)(l).

FACTS

3. Plaintiff is a United States citizen and legal

resident of the State of North Carolina.

Appx.C-2

4. Plaintiff, Mr. Smallwood, was a former member of

the United States Army.

5. Prior to active duty with the Army, Mr. Smallwood

served in the North Carolina National Guard.

6. Mr. Smallwood was ordered to active duty by

Defendant on or about September 2, 2011, for an

enlistment period not to exceed 400 days, and was

released from active duty on or around October 24,

2012.

7. Mr. Smallwood was activated for purposes of

Operation Enduring Freedom and deployed to

Afghanistan.

8. On or about June 16 and 17, 2012, while on

mounted patrol, Mr. Smallwood was exposed to three

(3) improvised explosive device ("IED") blasts within

a 24-hour period.

9. The IED blast on June 16, 2012 was within 25

meters of Mr. Smallwood's vehicle.

10. The first IED blast on June 17, 2012 was a direct

hit to Mr. Smallwood's vehicle.

11. The second IED blast on June 17, 2012,

approximately 1 hour later, was approximately 40

meters from Mr. Smallwood's vehicle.

12. On or about June 19, 2012 and pursuant to

Directive-Type Memorandum (DTM) 09-033, Mr.

Smallwood was given a Military Acute Concussion

Evaluation (MACE) and received a score of 27/30.

Exhibit A.

Appx.C-3

13. In a sworn statement Mr. Smallwood described

the effects of the second blast:

"SPC Withrow did some watch his finger test then

said five words and told me to say them back to him.

I ended up saying 4 words back. He asked me 5

minutes later and I said 3." Exhibit B.

14. Service Medical Records, AHLTA-T Clinic, on

June 19, 2012, written by Teresa Shelton, document

the events thusly:

"PT was on route clearance when he experienced 3

mounted IED blasts. The first was about 25 meters

away... The second occurred while he was in the

gunners turret. His truck received a direct blast and

he remembers being lifted out of the turret and states

that his next memory was lying in the bottom of the

truck. He continued on the mission and then a third

blast occurred about 40 meters away from him."

Exhibit C.

15. Mr. Smallwood was given an exertion test and

returned to active duty the following day without

limitations.

16. Following his hospitalization, Mr. Smallwood was

unable to perform to the satisfaction of his

commander and ordered back to Fort Bliss, Texas in

or around September 2012 for further medical care

and discharge from service.

17. On or about September 8, 2012, Mr. Smallwood

was given a Post-Deployment Health Assessment

(PDHA), Exhibit D, which determined that he would

not be referred for additional services. The same day

Mr. Smallwood completed an online application for

Appx.C-4

VA Healthcare, and was furnished confirmation in the

form of a Submission ID, for medical services at the

Hampton, Virginia VA Hospital. Exhibit E.

18. On or about September 12, 2012, Mr. Smallwood

was released from active duty and afforded

Transitional Health Care under 10 U.S.C. 1145,

effective October 24, 2012.

19. On or about September 15, 2012, Mr. Smallwood

was sent back home to North Carolina from Fort

Bliss, Texas.

20. On November 5, 2012 Mr. Smallwood fatally shot

himself in the chest.

21. The Department of Veterans Affairs determined

that the cause of death was due to mental

unsoundness, as the result of Traumatic Brain Injury

(TBI) and connected to service.

COUNT 1 - BREACH OF CONTRACT

22. The United States Army breached the active duty

service contract with Mr. Smallwood by not ensuring

that he was referred for healthcare. DeCrane v.

United States, 231 Ct.Cl. 951(1982).

23. The service contract imposed a duty upon the

Secretary of the Army pursuant to 10 U.S.C. § 1145

and, specifically, subsections 5 and 6.

24. The authority of § 1145 was undermined by Mr.

Smallwood's PDHA, which:

(a) Relied on self-reporting,

(b) Did not evaluate a CT scan, and

Appx.C-5

(c) Generated a computer error, further ensuring no

referral would be made.

25. Self-reporting- Recommendations and potential

referrals for additional medical care relied heavily on

the statements of Mr. Smallwood. As opposed to the

objective medical evidence and reports available to

the Army, the decision to not refer Mr. Smallwood for

additional care was based largely on reports from the

same individual, Mr. Smallwood, already known to

have suffered trauma to the brain.

26. CT Scan - The PDHA for Mr. Smallwood indicates

that the recommendation for no addition medical care

was made without review of, or attempt to retrieve, a

recently conducted CT scan.

27. Computer Error - On May 31, 2013, after the death

of Mr. Smallwood, AHLTA System Administrator

made record of a system error which frustrated Mr.

Smallwood's attempt to receive treatment. The note

states:

This record may have required correction in

accordance with MODS (Medical Operational Data

System) Help Desk Incident #748489. Providers

are advised to double check referrals listed below ...

no matter what block the Health Care Provider

checked on the DD 2796 ... the copy and paste

feature for the SF 600 in the Military Health

Application forced a return of four additional

answers. Providers may have copied and pasted

this erroneous information into their AHLTA note

... The extraneous answers inserted on the DD 2796

are: SM declined referral for services; SM declined

to complete interview/assessment ...

Exhibit F.

Appx.C-6

COUNT 2 - BREACH OF CONTRACT

28. The Department of Veterans Affairs (VA)

breached an implied-in-fact contract for healthcare

with Mr. Smallwood.

29. A contract implied-in-fact is one "founded upon a

meeting of minds, which, although not embodied in an

express contract, is inferred, as a fact, from conduct of

the parties showing, in the light of surrounding

circumstances, their tacit understanding." Schism v.

United States, 316 F.3d 1259 at 1301 (2002) citing

Baltimore & Ohio R.R. Co. v. United States, 261 U.S.

592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816

(1923).

30. A binding implied-in-fact contract arises between

a private party and the government upon proof by the

person of:

(a) Mutuality of intent to contract,

(b) Consideration,

(c) Lack of ambiguity in offer and acceptance,

(d) Government representative whose conduct is

relied upon must have actual authority to bind the

government in contract.

31. Mutuality of Intent to Contract - The VA, a

department of the United States government,

obligated to further national security by providing

benefits to service members upon the fulfillment of

specific criterion, must intend to be contractually

bound in order to effect the overall objective of

sustaining a capable, national military. Mr.

Smallwood showed his intent by completing his

deployment and applying for VA medical care.

Appx.C-7

32. Consideration - Consideration of the implied-infact contract is present: Mr. Smallwood completed his

deployment and received entitlement to VA and/or

other healthcare through individual eligibility and 10

U.S.C. § 1145.

33. Lack of Ambiguity in Offer and Acceptance - By its

very creation the VA provides services to eligible

service members and veterans. Mr. Smallwood

accepted the VA' s offer for care by meeting all

eligibility requirements and completing online form

10-l0EZ on September 8, 2012.

34. Authority to Bind Government - The authority to

bind the government comes expressly through 5

U.S.C. § 301 and 10 U.S.C. § 1145.

35. A breach in this implied-in-fact contract is clearly

evidenced by the VA's lack of response, treatment,

and record regarding Mr. Smallwood.

36. In a statement signed by Army Investigating

Officer, Major Mark S. McMahan documents his

investigation. It states, in pertinent part:

"Both Marie and Julian stated that their son Jason

did call the VA Center in Hampton, VA to make an

appointment, but could not confirm if Jason ever

received one. I contacted Ms. Jennifer Lamb at the

VA Medical Center in Hampton, VA and she stated

that Jason Smallwood was not registered there and

she had no records with his name whatsoever."

Exhibit G.

Appx.C-8

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court:

1. Enter judgment against Defendant on Count 1 and

award damages in an amount to be determined;

2. Enter judgment against Defendant on Count 2 and

award damages in an amount to be determined;

3. Punitive damages;

4. Costs and attorney's fees associated with this

action;

5. An amount equal to the taxes on any award; and

6. All other such relief consistent with justice and

equity.

Date: June 16, 2016

Year of The Lord,

/s/ Jonathan B. Kelly

Jonathan B. Kelly, Attorney for Plaintiff

Jonathan Kelly & Associates, PLLC

34 7 5th A venue, Suite 1402

New York, NY 10016

Tel: (646) 205-8170

Fax: (646) 205-8175

jkelly@kellylawassociates.com

Appx.D-1

IN THE

UNITED STATES COURT OF FEDERAL CLAIMS

The Estate of

)

JASON ALLEN SMALLWOOD, )

)

Plaintiff,

)

) No. 16-700C

v.

) (Judge Lettow)

)

UNITED STATES OF AMERICA )

)

Defendant,

)

)

PLAINTIFF’S RESPONSE TO

DEFENDANT’S MOTION TO DISMISS

The Court certainly possesses jurisdiction to decide

this matter. Suburban Mortgage Associates, Inc. v.

United States Department of Housing and Urban

Development, 480 F.3d 1116, 1118 (Fed. Cir. 2007)

(“At bottom it is a suit for money for which the Court

of Federal Claims can provide an adequate remedy,

and it therefore belongs in that court.”).

STATEMENT OF THE ISSUE

Whether the complaint contains non-frivolous

allegations of contracts with the government and

seeks money damages.

STATEMENT OF THE CASE

The Estate of Jason Allen Smallwood (Estate)

complains of United States of America (Defendant) for

breaches of contracts. The Defendant would like the

Court to adopt a creative mischaracterization of the

Appx.D-2

claim, which inaccurately seeks to anchor allegations

in statute. However, the Estate disagrees because the

motion considers only health care eligibility created

by statute and not the requisite performance

protected by contract law.

FACTS

Jason Smallwood was ordered to active duty by the

United States Army on September 2, 2011, for an

enlistment period not to exceed 400 days, and was

released from active duty on October 24, 2012.

Plaintiff Complaint at 2. 1 Mr. Smallwood was

activated for purposes of Operation Enduring

Freedom. Id. In June 2012, he was exposed to three

(3) improvised explosive device (IED) blasts within a

24-hour period. Id. Following hospitalization, Mr.

Smallwood was unable to return to active duty and

released from active duty with Transitional Health

Care. Id. at 3. On November 5, 2012 Mr. Smallwood

fatally shot himself in the chest. Id.

ARGUMENT

STANDARD OF REVIEW

The Tucker Act grants the United States Court of

Federal Claims the power “to render judgment upon

any claim against the United States founded either

upon the Constitution, or any Act 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).

“When a federal court reviews the sufficiency of a

complaint… its task is necessarily a limited one.”

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Yes, the

1 Hereinafter “Comp___.”

Appx.D-3

court is “obligated to assume all factual allegations to

be true and to draw all reasonable inferences in

plaintiff’s favor.” Id. at 236-37. The issue is not

whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to

support the claims. Id. Whether recover is “very

unlikely” or “remote” is not the test. Id. at 236. “The

general rule is that so long as the plaintiffs have made

a non-frivolous claim that they are ‘entitled to money

from the United States’ . . . because they have a

contract right, this court has jurisdiction to settle the

dispute.” Anchor Tank Lines, LLC v. United States,

127 Fed.Cl. 484, 493 (2016) (quoting Adarbe v. United

States, 58 Fed. Cl. 707, 714 (2003); quoting Ralston

Steel Corp. v. United States, 340 F.2d 663, 667 (Ct. Cl.

1965); see also Engage Learning, Inc., v. Salazar, 660

F.3d 1346, 1353 (Fed. Cir. 2011) (“[J]urisdiction under

(the Tucker Act] requires no more than a nonfrivolous allegation of a contract with the

government.”) (emphasis in original) (citing Lewis v.

United States, 70 F.3d 597, 602, 604 (Fed. Cir. 1995);

Gould v. United States, 67 F.3d 925, 929-30 (Fed. Cir.

1995); City of Cincinnati v. United States, 153 F.3d

1375, 1377 (Fed. Cir. 1998) (holding that “a nonfrivolous assertion of an implied contract with the

United States” is sufficient to establish subject matter

jurisdiction in this court)). The Estate has alleged the

existence of contracts, breaches therefrom, and money

damages. It seems unthinkable, given the standard of

review and the factual allegations presented in the

complaint, that this motion be granted.

Appx.D-4

ANALYSIS

CONTRACT CLAIMS

The Defendant urges the Court to adopt a

mischaracterization of the complaint as being one

based in statute, but for incomplete reasoning.

Defendant Motion at 1-2. 2 Federal common law of

contracts should be the source of substantive law

here. Seaboard Lumber Co. v. United States, 15 Cl. Ct.

366, 369 (1988), aff ’d, 903 F.2d 1560 (Fed. Cir. 1990)

(“The federal law applied in breach of contract claims

is not, however, created by statute but rather for the

most part has been developed by the Court of Appeals

for the Federal Circuit and the Court of Claims…”).

Moreover, the Supreme Court has previously

distinguished the nuanced requirement between a

money mandating statute and a suit for damages. In

Bowen 3 v. Massachusetts, a case involving a dispute

related to Medicaid services and programs, the Court

determined that jurisdiction remained with the

district courts and not the Claims Court. However in

reaching its decision, Claims Court jurisdiction was

denied because the plaintiff was “seeking funds to

which a statute allegedly entitles it, rather than

money in compensation for the losses, whatever they

may be…” 487 U.S. 879, 895 (1988).

“The State’s suit to enforce § 1396b(a) of the

Medicaid Act, which provides that the Secretary

shall pay certain amounts for appropriate Medicaid

2 Hereinafter “Def.Mot. ___”

Justice Scalia dissenting, “Nothing is more wasteful than

litigation about where to litigate, particularly when the options

are all courts within the same legal system that will apply the

same law.” Bowen at 929.

3

Appx.D-5

services, is not a suit seeking money in

compensation for the damage sustained by the

failure of the Federal Government to pay as

mandated; rather, it is a suit seeking to enforce the

statutory mandate itself, which happens to be one

for the payment of money.”

Id. at 900 (internal quotations omitted).

By motion, the Defendant only contends that

“entitlement” to healthcare benefits are governed by

statute. Def. Mot. 1. However, the Estate does not

contend from where entitlement arose, but instead

complains that acts of the Defendant made it so the

agreement would never reach performance. It is an

issue of entitlement versus performance; a

determining factor being the actual damage(s) sought.

DAMAGES

The Estate seeks money damages, not statutory

remedy. Comp. 7. While a particular statute stands as

evidence of breach, to conclude that the true nature of

the claim be statutory would be to ignore the

complaint itself. Comp. 3-7. To be clear, the Federal

Circuit has shown no preemption of Tucker Act

jurisdiction here, as with other cases. See Pines

Residential Treatment Ctr., Inc. v. United States, 444

F.3d 1379 (Fed.Cir. 2006). “Courts have consistently

found preemption of Tucker Act jurisdiction where

Congress has enacted a precisely drawn,

comprehensive and detailed scheme of review in

another forum ….” Id. at 1380; quoting St. Vincent's

Med. Ctr. v. United States, 32 F.3d 548, 550

(Fed.Cir.1994) (comprehensive administrative and

district court review procedures give rise to such

preemption) (internal quotations omitted).

Appx.D-6

There, Pine’s claim was “one for reimbursement”

and sought a remedy that required agency

intervention and ongoing overlapping relationships.

Id. Further, review was “precluded by the Medicare

Act.” Id. That is certainly not so here. The Estate of

Jason Allen Smallwood v. United States of America is

a claim for damages resulting from the breaches of

contracts and, certainly, the Estate does not seek

healthcare benefits under 10 U.S.C. §1145(a)(5).

Further, the Estate has not alleged any ongoing

entitlement to healthcare benefits. Mr. Smallwood is

deceased. Rather, his Estate seeks damages from the

breaches of contracts, while specifying certain

performance ignored but due Mr. Smallwood. Comp.

3-6. In that regard, facts to which the Defendant

offered to support negligence, Def. Mot. 4, 8-10, were

included in the complaint, not as evidence of

negligence, but were included to evidence the

breaches and unlikeliness or impossibility of

performance by Defendant. Quite essential to the

ruling of this motion, the Estate has not alleged any

acts of negligence nor is it seeking statutory remedy.

CONCLUSION

WHEREFORE, for the foregone reasons, and with

careful consideration of the standard of review, the

complaint, and allegations contained therein, the

Estate prays that the motion to dismiss be denied.

Electronically submitted: October 24, 2016

Year of The Lord,

/s/ Jonathan B. Kelly

Jonathan B. Kelly, Attorney for Plaintiff

Jonathan Kelly & Associates, PLLC

347 5th Avenue, Suite 1402

New York, NY 10016

Tel: (646) 205-8170 Fax: (646) 205-8175

jkelly@kellylawassociates.com