# ORIGINAL**~** 3Jn tbe Wniteb**~tates ~ourt**  

# ofjf 

# eberal**~Iaims** No. 17-768C (Filed: August 2, 2017) {NOT TO BE PUBLISHED)



### ****************** *** *** **********
KEVIN KEMPER, 

### Plaintiff,



### v. UNITED STATES, 

### Defendant.



### ********************************** ) ) ) ) ) ) ) ) ) ) )

Kevin Kemper,

### prose, Phoenix, Arizona. 

# FILED AUG

- 2 2017 U

.S

. COURT OF FEDERAL CLAIMS

Richard Schroeder, Trial Attorney, Commercia l Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C., for defendant. With him onthe brief were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C

. OPINION AND ORDER LETTOW, Judge. Plaintiff, Kevin Kemper, brings suitto allege a breach ofcontract and fraud by the United States ("the government"), acting through the United States Department ofVeterans Affairs ("VA"). Mr. Kemper alleges that the VA agreed to assist himinfinding a volunteer employment position and to compensatehimfor suchvolunteer work, but failed to fulfill those obligations

. He consequently seeks damages for the VA's allegedbreach ofcontract and fraudulent conduct. Pending before the court is the government'smotionto dismiss Mr. Kemper's complaint pursuantto Rule 12(b)(l) ofthe Rules ofthe Comi ofFederal Claims ("RCFC"). Forthe reasons stated, the government's motion is granted. BACKGROUND Mr. Kemper filed suit in this comi on May 25, 2017. See generally Compl. According to Mr. Kemper, he contacted the Vocational Rehabilitation and Employment office within the VA


### 7017 1450 DODD 1346 3042after learning through the VAwebsite that the office could provide assistance in his search for employment. Comp!. at 4-5. He then allegedly agreed to a contract with a counselor in that office, whereby the counselor would help Mr. Kemper find a three-month volunteer position and compensate Mr. Kemper for that volunteer work. Comp!. at 6. Mr. Kemper alleges that he thereafter declined a volunteer positionthat was "not viable," and was subsequently removed from the vocational rehabilitation program. Comp!. at 5-6. The VA notified Mr. Kemper ofhis removal from theprogram on September 8, 2015, and also informed him ofhis right to request an administrative review ofthat decision. Def.'s Mot. to Dismiss, App. ("Def.'s App.") at A9 to Al0 (Letter from John R. Arnett, Rehabilitation Counselor, VA to Kevin Kemper (Sept. 8, 2015)), ECF No. 7. 

### Mr. Kemper consequently claims that the VA breached its contractual obligations to find him a volunteer position and provide him with three months' payment. Comp!. at 6-7. He further asserts that the VA fraudulently stated that it "did none ofthe services included on [its] website." Comp!. at 6. He requests $1,900 in compensatory damages and $10,000 in punitive damages. Comp!. at 7. 1 

### STANDARD FOR DECISION As plaintiff, Mr. Kemper has the burden ofestablishingjurisdiction. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The leniency afforded to a pro se litigant with respect to formalities does not relieve such a litigant from satisfying jurisdictional requirements. Kelley v. Secretary, United States Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). Under the Tucker Act, this court hasjurisdiction over "any claim against the United States founded either uponthe 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 in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The Tucker Act waives sovereign immunity and allows a plaintiffto sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but it does not provide a plaintiffwith any substantive rights, UnitedStates v. Testan, 424 U.S. 392, 398 (1976). To establishjurisdiction, "aplaintiffmust identify a separate source ofsubstantive law that creates the right to money damages." Fisher v. UnitedStates, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).

1 Mr. Kemper also filed suit in the United States District Court for the District ofArizona on February 6, 2017. Comp!., Kemper v. UnitedStates Dep 't of Vocational Rehab., No. 17-375 (D. Ariz. Feb. 6, 2017). In an amended complaint in that court, filed onMarch 1, 2017, Mr. Kemper raised allegations against the VA but did notrefer to or address his alleged interactions withthe Vocational Rehabilitation and Employment office. See generally FirstAm. Comp!., Kemper v. UnitedStates Dep 't ofVocational Rehab., No. 17-375 (D. Ariz. Mar. 1, 2017). Acting pursuantto 28 U.S.C. § 1915(e)(2), the district court dismissed his amended complaint after finding that it did not state a claim upon whichreliefcould be granted or establish a basis for subject matterjurisdiction. Order, Kemper v. UnitedStates Dep 't of Vocational Rehab., No. 17-375 (D. Ariz. Mar. 9, 2017). The United States Court ofAppeals for the Ninth Circuit dismissed Mr. Kemper's appeal ofthe dismissal as frivolous. Order, Kemper v. United States Dep 't ofVocational Rehab., No. 17-15523 (9th Cir. June 13, 2017). 2ANALYSIS Although Mr. Kemper characterizes his claim against the VA as abreach ofcontract, his claim is instead based upon his status as a veteran and the benefits allegedly owed to him by the VA. See Pines Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379, 1380 (Fed. Cir. 2006) ("Regardless ofa party's characterization ofits claim, '[the court] look[s] to the true nature ofthe action in dete1mining the existence or not of jurisdiction.'") (quoting Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)); Estate of Smallwoodv. United States, 130 Fed. Cl. 395, 399 (2017) (noting that plaintiffs alleged breach ofcontract claim againstthe VA was instead a claim for allegedly wrongful denial ofbenefits), appeal filed, No. 17-1915 (Fed. Cir.). Such allegations regarding the denial ofbenefits by the VAfall outside thejurisdiction ofthis court. See, e.g., Prestidge v. United States, 611 Fed. Appx. 979, 982-83 (Fed. Cir. 2015); Kalick v. UnitedStates, 109 Fed. Cl. 551, 556-57 (2013), ajf'd, 541 Fed. Appx. 1000 (Fed. Cir. 2013). Congress has set fmth a "comprehensive statutory scheme spelling outthe administrative and judicial processes that must be followed in order to obtainreview ofdecisions bythe [VA]." Jackson v. UnitedStates, 80 Fed. Cl. 560, 567 (2008). A provision ofthe 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), states that "[t]he Secretary [ofthe VA] shall decide all questions of law and fact necessary to a decision by the Secretary under a lawthat affects the provision of benefits by the Secretary to veterans or the dependents or survivors ofveterans." 38 U.S.C. § 51 l(a). Ifan individual receives an adverse decision 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), establishes the statutory route that such individual must follow to seek review ofthe decision. That route includes appeals to the Board ofVeterans Appeals, 38 U.S.C. § 7104, the Court of Appeals for Veterans Claims, 38 U.S.C. § 7252(a), and the Federal Circuit, 38 U.S.C. § 7292(c). The Court ofFederal Claims has no place in this statutory regime. The court therefore lacks jurisdiction overMr. Kemper's claim that the VA allegedly failed to provide him withparticular benefits in his search for volunteer employment. Additionally, the court does not havejurisdiction over Mr. Kemper's fraud claimbecause such an allegation is based in tort. See Rick'sMushroom Serv., Inc. v. UnitedStates, 521 F.3d 1338, 1343 (Fed. Cir. 2008). 2 Accordingly, the court lacksjurisdiction over Mr. Kemper's claims. Dismissal is appropriate pursuant to 28 U.S.C. 

### § 1915(e), which provides that "the court shall dismiss the case at any time" upon determining that the action, among other things, "fails to state a claim on which reliefmay be granted." 28 U.S.C. § 1915(e)(2)(B)(ii); see also Taylor v. United States, 568 Fed. Appx. 890, 891 (Fed. Cir. 2014) (explaining that a court "isrequired to dismiss a frivolous complaint from a litigant who is proceeding informapauperis") (citing 28 U.S.C. § 1915(e)(2)(B)); Grant v. United States, 129 Fed. Cl. 790, 792 (2017) (noting that the court must dismiss an action when the conditions of28 U.S.C. § 1915(e) are satisfied, "[r]egardless of whether the filing fee [was] paid or waived") (citations omitted).

2Mr. Kemper also requests punitive damages, Comp!. at 7, but the court does not have jurisdictionto grant such a request, see Bussie v. United States, 96 Fed. Cl. 89, 96 (2011) (citations omitted), ajf'd, 443 Fed. Appx. 542 (Fed. Cir. 2011). 

### 3CONCLUSION Forthe reasons stated, the government's motion to dismiss for lack ofsubject matter jurisdiction is GRANTED. The clerk shall enterjudgment in accord with this disposition. No costs. It is so ORDERED.

4 Charles F. Lettow Judge