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No. 14-105C 

### (Filed: August 13,

### 2014) 

# FILED

RONALD EDWARD PIERCE"

Pro Se 

### Plaintiff,

THE 

### UNITED STATES,

Defendant. AUG

## 13 2014 U,S, COURT OF FEDERALCI.AI['S



### Motion to dismiss, 

### Rule 

### l2(b)(1) (lack of subject

### jurisdiction); State 

### law claims; Americans 

### with Disabilities 

### Act,42 U.S.C. $$ 12101, 12131, 12132 ;

### Administrative Procedure 

### Act, 42 

### U.S.C. $$ 701, 702.

Ronald 

### Edward Pierce, Squaw 

### Valley, CA, p4-q9 

### plaintiff. Michael D. Snyder, 

### Civil Division, United States Department 

### of Justice, Washington, 

### DC,

### with whom were Stuart 

### F. 

### Delery, Assislant 

### Attomey General, and Robert E. Kirschman, -Ir., 

### Director, Commercial 

### Litigation Branch, 

### for defendant.



### OPINION DISMISSING 

### COMPLAINT FIRESTONE, -/r;dge. Pending before 

### this court is defendant the 

### United States' 

### ("the government") motion to dismiss the 

### complaint in the above-captioned action 

### for lack 

### of subject matter 

### jurisdiction pursuant to 

### Rule 

### 12(bXl) of the Rules 

### of the 

### United States Court 

### ofFederal Claims 

### ("RCFC"), Docket 

### No. 14,

### filed June 5,

### 2014. In the complaint, p1q_g9 

### plaintiff Ronald Edward Pierce 

### ("Mr. Pierce" or

### "plaintiff') alleges that the 

### United States Tax Court 

### ("tax court")failed to accommodate his

### disabilities when 

### it refused to change thelocation and

### timing of a

### trial scheduled 

### in atax case he had 

### filed in 

### Califomia. Mr.

Pierce also alleges that the 

### United States 

### District Courtfor the Eastem 

### District

## of Califomia failed to accommodate his 

### disabilities when 

### it refused to intervene on his 

### behalfbefore thetax 

### court. Mr. Pierce charses that the

### tax court andthe 

### United States 

### District Court for the Eastern 

### District of Califomia are liable to 

### him for damases under the state 

### law by

### failing to accommodate 

### his

### disabilities. Specifically, 

### Mr. Pierce claims that he is entitled to damages under the 

### California Unruh 

### Civil Rights 

### Act ("Unruh 

### Act"). Cal. 

### Civ. Code $ 51. 

### According to 

### Mr. Pierce, damages under 

### California law are available against entities that 

### violate the Americans 

### with Disabilities 

### Act 

### of 1990

### C'ADA'), 42 U.S.C. $ 12101 

### etseq. Mr. Pierce claims that this court has

### jurisdiction to hear his case because the above-referenced federal courtsviolated his 

### rights under the

### ADA. He also argues that this court has

### jurisdiction to hear his case and award 

### him damages under the 

### Administrative Procedure 

### Act 

### ("APA"), 5 

### U.S.C. $ 702. The govemment arguesthat this court must dismiss 

### Mr. Pierce's case on the grounds that this court does not have

### jurisdiction to award damages under the Unruh 

### Act, the

### ADA, or the

### APA. For the reasons explained below, this 

### court 

### GRANTS the 

### govemment's motion 

### to dismiss. 

# I. FACTUALBACKGROUND The 

### complaint includes the 

### following allegations. On February 

### 21,2012, 

### plaintiff filed asuit in thetax court challenging atax 

### deficiency

### with the 

### Internal Revenue 

### Service. 

### After receiving a second notice 

### of deficiency, 

### plaintiff filed a second suit, andselected Fresno, 

### Califomia as his preferred place for

### trial. Plaintiff alleges that, because

he is disabled, he

### could not travel 

### to San Francisco, 

### Califomia for a

### trial. However, as 

### plaintiffhad elected to 

### bring his case as a regular tax case rather than as asmall tax oase, and because 

### only small 

### tax cases are heard in Fresno, the 

### trial was scheduled to be heard 

### in San Francisco. 

### After receiving notice of the 

### trial, 

### Mr. Pierce

### filed a 

### motion to change the place 

## of trial to 

### Fresno. When this 

### motion was denied due to

### plaintiff scase's classification, 

### plaintiff contacted the

### tax court's Equal 

### Employment Opportunity Commission 

### officer, who instructed 

### him to 

### refile his 

### motion. Thereafter, the 

### motion was granted and the

### trial

was re-scheduled 

### for February 

### 3,2014 in 

### Fresno. The casewas also reclassified as a small tax case. 

### After the

### trial was rescheduled, 

### Mr. Pierce sought acontinuance of his case, arguing that acontinuance was necessary

### to accommodate his 

### disability and 

### in order

### for him to deal

### with the 

### additional cases he had pending in the tax 

### court. 

### Plaintiffs request

was made 

### infbrmally to various employees of thetax 

### court. When his request was 

### not granted, he sought help 

### from the 

### United States 

### District Courtfor the Eastem 

### District

## of Califomia, andthen

### from the 

### United States 

### District Courtfor the Central 

### District

### of califomia. After those 

### efforts failed, 

### Mr. Pierce

### filed a request for

### judicial notice 

### with the tax court requesting that the court acknowledge its alleged 

### lack of accommodation. 

### After the

### tax court entered an order 

### requiring 

### plaintiffto appear atthe scheduled date and 

### time for 

### trial, 

### plaintiff filed a 

### "Swom 

### Affidavit of 

### Prejudice" alleging that the

### judgeto whom the casewas assigned was not 

### impartial. The tax court then entered an order again

### requiring 

### plaintiffto appear, stating that 

### failure to appear could 

### result in dismissal of the



### case. On February 

### 6,2014, 

### plaintiff filed his 

### complaint in this court. 

# II. STANDARD OF 

### REVIEW The 

### United States 

### Court of Federal Claims is acourt 

### of limited

### jurisdiction. Under the Tucker 

### Act, the 

### United States Court 

### of Federal Claims has

### jurisdiction to hear claims against the 

### united states that are 

### "founded either upon the 

### constitution, or any 

### Act ofCongress or any regulation 

### ofan executive department, or upon any express

### or implied contract

### with the 

### United states, 

### or for liquidated or unliquidated damages rn

cases not sounding 

### in

### tort." 28

## u.s.c. g

### la9l(a) (2011). where the court has not been granted

### jurisdiction to hear a

### claim, the case must be

### dismissed. SeeArbaugh 

### v.

## y & H Corp., 546 U.S. 

### 500, 514 

### (2006). Subject matter

### jurisdiction may not bewaived 

### or forfeited; when acourt concludes that 

### it lacks

### jurisdiction, the 

### complaint must be dismissed 

### in its

### entirety. Spg John 

### R. Sand 

### & Gravel 

### co. v. 

### United States,457 F.3d 

### 1345,1354 (Fed. 

### Cir. 2006). The 

### plaintiff bearsthe burden 

### of establishing subject matter

### jurisdiction, Alder Terrace. 

### Inc.v. 

### United stares,

## l6l F.3d 1372, 1377 (Fed.

## cir. l99g) (citing 

### McNutt v. General 

### Motors Acceptance Corp., 298 

### U.S. 178, 

### lg9 (1936), and must do so by a preponderance 

### of evidence, Reynolds v.

### Army 

### & Air Force Exchanee service 

### , g46 F .2d 

### 746,748 (Fed. 

## cir. 1988). 

### when ruling on a 

### motion to dismiss 

### for lack 

### ofjurisdiction, the court considers uncontested facts alleged in the 

### complaintto be

### ftue and correct. Reynolds, 846 F.2d at 747

## . The court may also consider materials outside of the pleadings to determine whether 

### it has subject matter

### jurisdiction over a

### claim. AviationSoftware. Inc. 

### v. United States, 101 Fed. 

### C\.656,661 (2011) 

### (citing Rocovich 

### v. United

States,933 

### F.2d991,993 (Fed. 

### Cir. 1991)). The court holds plq_Se 

### "pleading[s] 

### 'to less stringent standards than

### formal pleadings drafted 

### by 

### lawyers." Johnson v. 

### United States, 

### 4l I Fed. 

### Appx. 303, 305 (Fed. 

### Cir. 2010) 

### (quoting Hainesv. Kerner, 404 

### U.S. 519,520 

### (1972)). Nonetheless, a pre_le 

### plaintiff must

### still 

### satisf the court's

### jurisdictional requirements. Bernard 

### v. 

### united States, 59 Fed. 

### Cl. 497,499 (200a) 

### ("This latitude, however, does not 

### relieve a plq_qg 

### plaintiff from meeting

### jurisdictional requirements."), 

### aff d, 98 Fed.

### Appx. 860 (Fed. 

### cir. 2004). 

# III. DISCUSSION In his complaint, 

### plaintiff alleges that thetax court and 

### United States 

### District 

### court for the Eastern 

### District of 

### califomia failedto accommodate his 

### disability as required 

### by the

### ADA, andthus these courts owe 

### him damages under 

### califomia law. In support of his 

### complaint, 

### Mr. Pierce cites Munson v. 

### Del 

### raco. Inc. 

### ,46 cal.4th 661 

### (cal. 2009). Apparently, under

### california state 

### law, an 

### individual who has an

### ADA claim may also obtain damages under the Unruh 

### Act. Id. Mr. pierce arguesthat he is also 

### entitled to 

### relief in this court under the

### APA, which according to 

### Mr. pierce, givesthis court 

### jurisdiction to 

### review the decisions 

### of other federal couns. 

### ln its 

### motion to dismiss, the govemment arguesthat this court lacks 

### jurisdiction

over 

### Mr. Pierce's state-law damage claims and over his claims based onthe

## ApA. This court has reviewed 

### all of the pleadings and 

### briefs

### filed by the parties and

### finds for the reasons that 

### follow that this court lacks subject matter

### jurisdiction. First, this court lacks

### jurisdiction over actions arising under the Unruh 

### Act because 

### "'[c]laims founded on state



### law are also outsidethe scope of the limited 

### jurisdiction of the 

### Court of Federal 

### Claims."' 

### Waltnerv.UnitedStat€s,98Fed.C1.737,764(Fed.Cl.2011), af?d,679 F.3d 1329(Fed. 

### Cir.2012) (citing Souders

### v. South Carolina Pub. Serv. Auth. 

### ,497 F.3d 1303, 1307 (Fed. 

### Cir.2007)). Second, to the extent 

### Mr. Pierce is 

### claiming a 

### right to damages stemming 

### from violations of the federal

### ADA, his 

### complaint also must be dismissed because the 

### ADA does not apply to the federal govemment, andthus this 

### court lacks subject matter 

### jurisdiction over an

### ADA claim. Allen v. United 

### States,546F. 

### App'x.949,951 (Fed. 

### Cir. 2013) 

### (citing Searles v. 

### United States, 88 Fed. 

### Cl. 801, 805 

### (2009)). The

### ADA provides that 

### "no qualified individual 

### with a

### disability shall by reason 

### ofsuch disability, be excluded 

### from participation

. . .services, programs, 

### or activities 

### of a

### public entity or be subjected to 

### discrimination by any such

### entity." 42 

### U.S.C. 

### $ 12132. 

### A,,public entity,, is defined as

### "(A) any State, or 

### local government; 

### (B) any department, agency, special purpose 

### district, or other 

### instrumentality 

### of a

### State... or local government 

# ...." 42 

## u.s.c. $ 

### 12131(l). The

### ADA is not applicable to the

### tax court, the 

### united states 

### District 

### court for the Eastern 

### District of 

### califomia, or any other federal government 

### entity because the

### ADA definition of "public entity" includes 

### only state and local govemment 

### entities. Gray 

### v. United States, 69 Fed. 

### cl. 95, 101 n.5 (2005); 

### United states

### v.wishart, 146 F.

### App'x. 171 

### (9th

### cir. 2005). In such circumstances, there has not been a

### waiver

## of sovereign 

### immunity for claims against the 

### United states under the

### ADA andthe case must be 

### dismissed. Gray, 69 Fed. 

### Cl. at 102.

### Finally, this court does not have

### jurisdiction to hear 

### plaintiff s case under the 

### APA.

Contrary to

### plaintiff scontentions, the

### APA does not 

### provide for review of the actions 

## of other federal 

### courts. By its 

### plain language, the

### APA provides 

### only for review of "agency 

### action," which does 

### not include decisions 

### of thetax court 

### orfederal 

### iudiciarv.t 5

### u.s.c. 5 702. 

# IV. CONCLUSION For the foregoing reasons,the 

### govemment's motion to dismiss 

### for lack 

### of subject matter

### jurisdiction under 

### RCFC 

### l2(bXl) is

### GRANTED.2 The 

### clerk is directedto enrer 

### judgment accordingly. 

### IT IS SO 

### ORDERED.

' TheAPA reads, in relevant part: (b) For the purpose of this chapter-- 

### (l) "agency" means each authority of the Govemment ofthe United States, whether or not it iswithin or subjectto review by another agency, but does not 

### include- (B) the courts of the United Stares

. . . . 5 U.S.C. $ 701. 2In addition, 

### plaintiffhas filed anapplicationto proceed in forma pauperis and amotion 

### for sanctions. _This court hereby GRANTS the in forma pauperis appli"ationfo. the purpose

### of resolving this 

### motion. While the motion for

### sanctiooidols not specify the conduct alleged to haveviolated 

### plaintiffs rights, an order from the tax court dismissing 

### plaintilps casefoi iack 

### of prosecution is attached tothe 

### motion. Because this court does not 

### hivl lurisdiction over plaintifPs case, the motion for sanctions must be 

### DENIED aswell.