# 3fn tbe Wniteb ~tate.s Qtourt of§eberal Qtlaitn.s

No. 18-1555C (Filed: January 25, 2019) 

### ******************************************* 

## * * RANDY S. FIELDS, * 

### Plaintiff, * 

### Rule 12(b)(1) Motion to Dismiss 

## * for Lack of Subject Matter v. 

## * Jurisdiction; Federal Torts 

## * Claims Act; Veterans Benefits; THE UNITED STATES, 

## * Transfer. 

## * Defendant. 

## * * ******************************************* RandyS. 

### Fields, Sevierville, Tennessee,

### prosePlaintiff. 

### DavidR. Pehlke, Trial Attorney, with whom were 

### Joseph H. Hunt, Assistant Attorney General, 

### Robert E. 

### Kirschman, Jr., Director, and 

### Deborah A. Bynum, Assistant Director, Civil Division, U.S. Department ofJustice, Washington, D.C., for Defendant. OPINIONAND ORDER WHEELER, Judge. Randy S. Fields, a

### proseplaintiff, broughtthis action allegingthatthe Government denied him reliefunder the Federal Torts Claims Act for injuries he allegedly suffered while receivingtreatment at a VA medical center. Mr. Fields also claims the Government failed to provide him veterans benefits for his alleged injuries. The Government filed a motion to dismiss for lack ofsubject matterjurisdiction. Forreasons explained below, the Court GRANTS the Government's motion to dismiss.Background On March 29, 2016, Mr. Fields underwent a Total Knee Arthroplasty ("TKA") surgery at a VA Medical Center in Gainesville, Florida. Ex. 1. After the surgery, Mr. Fields filed a claim under the Federal Tort Claims Act (FTCA) against the United States Department of Veterans Affairs alleging negligent post-surgery care on behalf of the Veterans Hospital Administration staff. See id. Mr. Fields's alleged injuries included painful urination, internal bleeding, nerve damage, andpartial loss ofmotor-control ofhis foot, for which he requested a sum of$200,000.00 and a disability rating of 100 percent. Id. TheVA Office ofGeneral Counsel heard and consideredMr. Fields'sFTCA claim. Def. Mot. to Dismiss at l; Comp!. ,i l; see Ex. 1. On January 27, 2017, the VA Office of General Counsel denied his claim for failure to identify any negligence on the part ofthe VA health care providers acting within the scope of their employment, or possible negligence related to Mr. Fields's TKA surgery and post-operative care. Ex. I. OnJune 20, 2017,Mr. Fields filed aMotionforReconsideration ofhis FTCAclaim. Comp!. ,i 1. On March 9, 2018, the VA Office of General Counsel denied the Motion for Reconsideration and also issued a final decision, which denied Mr. Fields's FTCA claim and informed him that he could further pursue his FTCA claim in a United States District Court. 1 Def. Mot. to Dismiss at I; see Ex. I.

Mr. Fields filed a complaint with this Court on October 1, 2018. Dkt. No. 1. Mr. Fields appears to allege that the VA refused to reconsider his FTCA claim, and thus, prevented him from receiving service connection benefits for his alleged injuries. Comp!. ,i,i 1, 3. He also alleges that he did not receive the VA's letter containingthe denial ofhis FTCA claim because he was in the process of moving to a different address. Id. ,i 1. Accordingly, Mr. Fields seeks to pursue his FTCA claim in this Court. In addition, Mr. Fields seeks service connection for the alleged injuries described in his FTCA claim. Id. 

## ii,13, 4.On November 30, 2018, the Government filed a motion to dismiss under Rule 12(b)(1) ofthe Rules ofthe Court ofFederal Claims ("RCFC") presenting three grounds for lack of subject matterjurisdiction. Dkt. No. 7. First, it argues that the Court lacks jurisdiction to entertain Mr. Fields's FTCA claim. Def. Mot. to Dismiss at 1. Second, it argues thattransfer ofMr. Fields's FTCA claim to a district courtpursuantto 28 U.S.C. §

1 In its Motion to Dismiss, the Government cites Exhibit 1in suppott ofits assettion that the VA denied Mr. Fields's motion to reconsider and issued afinal denial ofhis FTCA claim on March 9, 2018. However, Exhibit J does not include copies ofthe VA's denial ofthe motion to reconsider or its final denial ofMr. Fields's FTCA claim. Instead, Exhibit 1 includes USPS tracking information for a letter the VA sent to Mr. Fieldson March 9, 2018, which the Comtassumes contained the denial ofthe motion to reconsider and final denial ofMr. Fields's FTCA claim.
2

### 1631 is not appropriate because Mr. Fields's claim is late. Id. at 1-2. Third, it argues that this Court lacksjurisdiction to entertain Mr. Fields's claim for service connection for his alleged injuries. Id. at 3. Mr. Fields filed a response on December 17, 2018, defending his complaint and askingthe Courtnot to dismiss his claim on the basis ofan untimely filing. Dkt. No. 8 (Pl. Resp.) at 1. Mr. Fields asserts that he was in the process ofmoving in September 2017, and therefore was not on notice ofthe VA's denial ofhis Motion for Reconsideration and final denial ofhis FTCA claim. Id. He also asserts that he notified the VA ofhis address change on September 18, 2017 and had difficulty contacting his attorney around this time. Id. The Government filed its reply on December 21, 2018. Dkt. No. 9. As set forth below, Mr. Fields's complaint must be dismissed for lack ofsubject matterjurisdiction, and the Court finds that atransfer ofMr. Fields's caseto a district court is not appropriate. Discussion A. Motion to Dismiss for Lack ofSubjectMatterJurisdiction When deciding a Rule 12(b)(l) motion to dismiss, the Court treats the undisputed facts in the complaint as true and must draw reasonable inferences in favor ofthe nonmoving party. Erikson v. Pardus, 551 U.S. 89, 91 (2007). Courts holdpleadings filed by a pro se 

### plaintiff to a less stringent standard and liberally construe language in the plaintiffs favor. Id. at 94; Haines v. Kerner, 404 U.S. 519,520 (1972). However, apro se

### plaintiffmust still prove subjectmatterjurisdictionby apreponderance ofthe evidence. See Lengen v. United States, 100 Fed. Cl. 317,328 (2011). Ifthe Court determines at any time that it does not have subject matterjurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act ordinarily is the focus ofsubject matterjurisdiction in this Court, and states: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded eitheruponthe Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contractwith the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 

### 28 U.S.C. § 

### 1491(a)(l) (emphasis added). The Tucker Act "does not create a cause of action." RHI Holdings, Inc. v. United States; 142 F.3d 1459, 1461 (Fed. Cir. 1998). Rather, aplaintiffmust identify a "separate source ofsubstantive lawthat creates arightto

3money damages" for the Court to exercisejurisdiction over a claim. Greenlee County, Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007) (quotingFisherv. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). The substantive source oflaw allegedly violated must "fairly be interpreted as mandating compensation by the Federal Government." United Statesv. NavajoNation, 556 U.S. 287,290 (2009) (quotingUnited Statesv. Testan, 424 U.S. 392,400 (1976)). 1. FTCAClaim Mr. Fields alleges that he is entitled to reliefas a result ofthe Government's denial to reconsider his FTCA claim. Comp!. ,i 3. To this end, Mr. Fields seeks to pursue his FTCA claim in this Court. However, the TuckerActplainly excludes tortclaims from this Court's jurisdiction. 28 U.S.C. § 1491(a)(l) (providing for jurisdiction over "claim[s] against the United States

... 

### not sounding in tort" (emphasis added)). 28 U.S.C. § 149l(a)(l). Moreover, United States "district comis

... shall have exclusivejurisdiction ofcivil actions on claims againstthe United States, for money damages

... caused by the negligent or wrongful act or omission ofany employee ofthe Government while acting within the scope ofhis office or employment." Id. § 13461(b)(l). Accordingly, as tort claims fall outside ofthis Court'sjurisdiction, Mr. Fields'sFTCAclaimmustbe dismissed for lack ofsubject matterjurisdiction. 2. Veterans Benefits Claim Mr. Fields also requests this Courtto "instructthe VA to service connect [him]" for his injuries so "he can be compensated and treated." Comp!. 

### ii 3. To the extent that Mr. Fields requests this Comi to review the VA's final decision, which prohibited him from receiving service connection for his alleged injuries, the Government argues that "neither this Courtnora United States District Courtwouldhavejurisdiction over any such claim." Def. Mot. to Dismiss at 3. The Government is correct. TheUnited States Courts ofAppeals for Veterans Claims has exclusivejurisdiction to reviewfinal decisions on claims for veterans benefits. See 38 U.S.C. §7252(a). Review ofthose decisions is assigned exclusively to the United States Court ofAppeals for the Federal Circuit. See id. § 7292(c). Decisions by the Federal Circuit are final subject to review by the United States Supreme Court on certiorari. Id. Therefore, this Court does nothavejurisdictionto reviewMr. Fields's claim for veterans service connection benefits, and this claim mustbe dismissed for lack ofsubject matterjurisdiction.

4B. Transfer to aDistrict Court Although not requested by Mr. Fields, this Court considers whether it would be in the interest ofjustice to transfer Mr. Fields's case to a United States district court. 28 U.S.C. § 1631 provides that: Whenever a civil action is filed in a court

... and that court finds that there is a want ofjurisdiction, the court shall, ifit is in the interest ofjustice, transfer such action

... to any other such court in which the action or appeal could have been brought at the time it was filed ornoticed. 28 U.S.C. § 1631. This Court may transfer a case to a district court ifthe plaintiffcan establish three elements: (1) the transferor court lacksjurisdiction; (2) at the time the case was filed, it could have been brought in the transferee court; and (3) such transfer is in the interest of justice. Sanders v. United States, 34 Fed. Cl. 75, 81-82 (1995). The first element has already been established because the Court does not have jurisdiction over either Mr. Fields's FTCA claim or his claim for service connection benefits. Regarding the second element, Mr. Fields's claims likely could not have been brought in a district court at the time his complaint was filed. Pursuant to 28 U.S.C. § 2401(b), a plaintiffmust file his claim within six months after "the date ofmailing, by certified or registered mail, ofnotice offinal denial ofthe claim by the agency to which it was presented." 28 U.S.C. § 240l(b). The VA issued its final denial ofMr. Fields's claim on March 9, 2018. Ex. I. Consequently, the last day for filing his claim in a district court was September 9, 2018. Therefore, atthe time Mr. Fields filed his claim in this Court on October 1, 2018, Mr. Fields could not have brought his claims in a district court because thetime to file had passed. However, Mr. Fields claims that he was not on notice about the VA's final denial sent to him via certified mail on March 9, 2018 because he was in the process ofmoving to a different address. Comp! 

## ii I. Mr. Fields also asserts that he notified the VA ofhis change ofaddress on September 18, 2017. Pl. Resp. at I. Nonetheless, the time to file a claim under 28 U.S.C. § 2401(b) begins at the time the final denial is mailed, not when it is received. Furthermore, since the action could have been timely filed in a different court, this Courtneed not address the interests of justicehere. The Court therefore finds thattransfer ofMr. Fields's case is not appropriate.

5

### Conclusion Forthe reasons above, the CourtGRANTS the Government's motionto dismiss for lack of subject matterjurisdiction and finds that Mr. Fields's case is not appropriate to transferto another district court.

6 

### THOMAS C. WHEELER Judge