In the United States Court of Federal Claims

No. 20-635C

Filed: February 4, 2021

NOT FOR PUBLICATION

ROBERT A. SPARKS, 

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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

Jurisdiction; Tort Claims; Veterans 

Benefits; RCFC 12(b)(6); Failure To State 

A Claim.

Robert A. Sparks, Leonardtown, MD, plaintiff pro se.

Margaret J. Jantzen, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E. 

Kirschman, Jr., Director, Ethan P. Davis, 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

Plaintiff pro se, Robert A. Sparks, brings this action against the United States alleging 

that he contracted an infection after undergoing a dental procedure performed at a United States 

Department of Veterans Affairs (the “VA”) dental clinic. See generally Compl. As relief, 

plaintiff seeks to recover $5 million in monetary damages from the United States. Id. at ¶ 3. 

The government has moved to dismiss this matter for lack of subject-matter jurisdiction 

and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 

(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def. 

Mot. Plaintiff has also filed a motion to proceed in this matter in forma pauperis. See generally 

Pl. Mot. For the reasons set forth below, the Court: (1) GRANTS the government’s motion to 
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dismiss; (2) GRANTS plaintiff’s motion to proceed in forma pauperis; and (3) DISMISSES the 

complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background 

Plaintiff, pro se, Robert A. Sparks, is a United States Army veteran. Pl. Resp. at 1. In 

the complaint, plaintiff alleges that he contracted an infection after undergoing a dental 

procedure performed at a VA dental clinic located in Washington, DC. See Compl. at ¶¶ 1, 3. 

As relief, plaintiff seeks to recover $5 million in monetary damages from the government. Id. at 

¶ 4.

Specifically, plaintiff alleges that, on September 22, 2017, he received a tooth filling at a

VA dental clinic and that he “started getting sick” after the procedure and “was really sick” by 

the time he got home. Id. at ¶¶ 1, 3. Plaintiff also alleges that, on September 24, 2017, he was 

admitted to the Surgical Intensive Care Unit at the VA Medical Center in Washington, DC and 

underwent surgery. See id. at ¶ 3. 

In addition, plaintiff alleges that a doctor subsequently told him that his infection had 

been caused by his tooth filling procedure. See id. And so, plaintiff seeks monetary damages 

from the government as compensation for “what [the VA has] done” and recovery for “pain 

[and] suffering . . . in the amount of . . . five million dollars . . . .” Id. at ¶ 4.

B. Procedural History

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

18, 2020. See generally Compl.; Pl. Mot. On July 19, 2020, the government filed a motion to 

dismiss this matter, pursuant to RCFC 12(b)(1) and (6). See generally Def. Mot. 

On August 12, 2020, plaintiff filed a response to the government’s motion to dismiss. 

See generally Pl. Resp. On August 26, 2020, the government filed a reply in support of its 

motion to dismiss. See generally Def. Reply.

1 The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the 

government’s motion to dismiss (“Def. Mot.”); and plaintiff’s response thereto (“Pl. Resp.”). Unless 

otherwise noted herein, the facts recited are undisputed.
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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, 

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 
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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 he 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.

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 
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(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). And so, the Court must dismiss tort claims for lack of subject matter jurisdiction. 

In addition, 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, “[d]isputes concerning veterans’ benefits are handled 

internally by the VA” at the Board of Veterans Appeals, “with appeal to the United States Court 

of Appeals for Veterans Claims.” Berkowitz, 2014 WL 4387851, at *4; see 38 U.S.C. §§ 7105, 

7252.

C. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief 

can be granted pursuant to RCFC 12(b)(6), this Court similarly assumes that all undisputed facts 

alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s 

favor. See Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017) (citing

Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And so, to survive a motion 

to dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim 

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see 

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

When the complaint fails to “state a claim to relief that is plausible on its face,” the Court 

must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand, 

“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and 

determine whether it is plausible, based upon these facts, to find against the defendant. Id. at 

678-79 (“A claim has facial plausibility when the pleaded factual content allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.”). 

IV. LEGAL ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction 

pursuant to RCFC 12(b)(1), upon the grounds that the Court does not possess subject-matter 

jurisdiction to consider plaintiff’s tort and veterans’ benefits claims. Def. Mot. at 3-4. The 
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government has also moved to dismiss this matter for failure to state a claim upon which relief 

may be granted pursuant to RCFC 12(b)(6), upon the ground that plaintiff has failed to plausibly 

allege a breach of contract claim against the government. See id. at 4-5. Plaintiff has also 

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

For the reasons discussed below, the Court does not possess subject-matter jurisdiction to 

consider plaintiff’s tort and veterans’ benefits 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; and (3) DISMISSES the complaint.

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

As an initial matter, the Court must dismiss plaintiff’s claim alleging that he contracted 

an infection after undergoing a dental procedure performed at a VA dental clinic located in 

Washington, DC, because this claim sounds in tort. It is well-established that the Tucker Act 

expressly excludes tort claims from the jurisdiction of this Court. 28 U.S.C. § 1491(a)(1) (“The 

United States Court of Federal Claims shall have 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.”) (emphasis 

added); see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.

2008) (“[t]he plain language of the Tucker Act excludes from the Court of Federal Claims 

jurisdiction claims sounding in tort”). In this case, plaintiff seeks to recover monetary damages 

from the government for pain and suffering that he allegedly experienced as a result of 

contracting an infection after undergoing the aforementioned dental procedure at a VA dental 

clinic. Compl. at ¶¶ 1, 3-4. Because plaintiff’s claim sounds in tort, the Court DISMISSES this 

claim for lack of subject-matter jurisdiction. Utley v. United States, 144 Fed. Cl. 573, 577 (2019) 

(citing Gable v. United States, 106 Fed. Cl. 294, 298 (2012)); Mendez-Cardenas v. United States, 

88 Fed. Cl. 162, 166 (2009) (holding that medical malpractice and negligence claims sound in 

tort and are therefore not subject to this Court’s jurisdiction); RCFC 12(b)(1). 
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B. The Court May Not Consider Plaintiff’s Veterans’ Benefits Claim

To the extent that plaintiff asserts a claim for veterans’ benefits in this case, the Court 

must also dismiss this claim. It is well-established that this Court does not possess subjectmatter jurisdiction to consider veterans’ benefits claims, because the termination and recoupment 

of veterans’ benefits falls within the sole purview of the VA. See, e.g., Berkowitz v. United 

States, No. 07-328C, 2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) (citing Van Allen v. 

United States, 66 Fed. Cl. 294, 296 (2005)); see also 38 U.S.C. §§ 7105, 7252. Plaintiff states in 

the complaint that he seeks compensation for “what [the VA has] done.” Compl. at ¶ 4. To the 

extent that plaintiff’s claim is a claim for veterans’ benefits, the Court must dismiss this claim for 

lack of subject-matter jurisdiction. RCFC 12(b)(1).2

C. Plaintiff May Proceed In Forma Pauperis

As a final matter, plaintiff has moved to proceed in this matter in forma pauperis. See 

generally Pl. Mot. This Court may authorize the commencement of a suit without prepayment of 

fees when a plaintiff 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)(1); see also id. § 2503(d). In his application 

to proceed in forma pauperis, plaintiff indicates that he is not employed and that he is unable to 

pay the Court’s filing fee. Pl. Mot. at 1. Given this, the Court concludes that plaintiff has 

satisfied the statutory requirements to proceed in this matter in forma pauperis for the purpose of 

resolving the government’s motion to dismiss. 

V. CONCLUSION

In sum, the most generous reading of the complaint makes clear that the Court does not 

possess subject-matter jurisdiction to consider any of plaintiff’s claims. In addition, plaintiff has

2 The Court does not read the complaint to assert a breach of contract claim against the government. 

Nonetheless, to the extent that plaintiff asserts a contract claim in the complaint, the government correctly 

argues that plaintiff has not plausibly alleged a breach of contract claim against the United States in this 

case. Def. Mot. at 4-5; see also Aboo v. United States, 86 Fed. Cl. 618, 626, aff’d, 347 F. App’x 581 

(Fed. Cir. 2009) (quoting Cooley v. United States, 76 Fed. Cl. 549, 555-56 (2007) (holding that a plaintiff 

must demonstrate the existence of a valid contract to prevail on a breach of contract claim against the 

government)).
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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; and

3. DISMISSES the 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