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No. 13-664 C

(Filed April 9,2014)

UNPUBLISHED

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KERRY A. GIBSON, * Pro Se Complaint; RCFC

Pro Se Plaintffi * 12(b)(1); No Jurisdiction to * Review Denial of Workers' * Compensation Benefits or to * Collaterally Attack Judgments of * a United States District Court.

Defendant. ,r'

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Kerry A. Gibson, St. Louis, MO, pro se.

Scott Slater, United States Department of Justice, with whom were Stuart F.

Delery, Assistant Attomey General, Bryant G. Snee, Acting Director, Scott D.

Austin, Assistant Director, Washington, DC, for defendant.'

OPINION

Bush, Senior Judge.

r/ James W. Poirier of the United States Department of Justice became counsel of record

for the United States after briefing of defendant's motion to dismiss was complete.

FILED

APR - I2014

U.S. COURT OF

FEDERAL CLAIMS

TFIE UNITED STATES,
The court has before it defendant's motion to dismiss the complaint, filed

under Rule 12(bX1) of the Rules of the United States Court of Federal Claims

(RCFC). Because the court lacks jurisdiction over plaintiff s claims, the court

grants defendant's motion and must dismiss this case. The court's jurisdictional

analysis is set forth below.

BACKGROUND,

Mr. Gibson'spro se complaint addresses the actions of a number of federal

agencies, including the Department of Veterans Affairs, Social Security

Administration, Department of Labor, and the Army Corps of Engineers, and

characterizes these actions as "constructive Bad Faith Insurance Handling."'

Compl. at 1. According to the three-page complaint, which is not easily

deciphered due to its cryptic and nonspecific nature, Mr. Gibson suffers from

health probiems and his requests to obtain a disability retirement or a workers'

compensation settlement have been denied. Id. at l-2. Most specifically, the

complaint references a workplace accident that occurred on July 15,2011 while

plaintiff was a civilian employee of the Corps of Engineers, and a notice of

decision issued by the Department of Labor's Office of Workers' Compensation

Programs (OWCP) on August 21,2013. Id. at2.

In the prayer for relief presented in the complaint, Mr. Gibson seeks: (1) a

declaratory judgment regarding these denials of benefits; (2) an order that

defendant "take affirmative action to ensure that the activities complained of

above never again are engaged in by them or any of their agents"; (3) an injunction

against "discriminati[on] on the basis of familial status"; (4) compensatory and

punitive damages; (5) attorneys' fees and costs; and, (6) any other reliefthe court

should deem proper. Compl. at 2-3. His opposition brief suggests that the

'?i The facts recited here are taken from the unpaginated complaint. The court has

supplied page numbers to the complaint submitted by plaintiff as well as to plaintiff s opposition

brief.

r/ The complaint also alleges certain misdeeds of officials of the State of Missouri. This

court has no jurisdiction over the actions ofstate officials and will not discuss further any

allegations regarding state officials in the complaint. See, e.g.,Vlahakisv. United States,215 CI.

cl. 1018, 1018 (1978).
purpose of Mr. Gibson's suit may be to set aside the dismissals of two suits he

filed in the United States District Court for the Eastern District of Missouri which

also targeted the actions ofvarious federal agencies regarding his disability

claims; these two suits were both dismissed for lack ofjurisdiction. Pl.'s Opp. at 2

("pllaintiff challenge[s] the jurisdiction of the district court, and filed the

appropriate action to set-aside the void judgments."); see Gibson v. Army Corps of

Engineers St. Louis, No.4:13-cv-01676-1{FA,2013 WL 6161120 (E.D. Mo. Nov.

25,2013); Gibsonv. Social Sec. Admin., No. 4:13-cv-01417-IIEA,2013 WL

3941386 (E.D. Mo.), aff'd,533 F. App'x 692 (9th Cir. 2013). Reading the

complaint and plaintiff s opposition brief together, plaintiff seeks review in this

court ofat least one denial of federal benefits and may also attempt to collaterally

attack the dismissals of his suits in the district courl.

DISCUSSION

Pro Se Litigants

The court acknowledges that Mr. Gibson is proceedingpro se and is "not

expected to frame issues with the precision of a common law pleading." Roche v.

U.S. Postal Serv.,828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs are

entitled to a liberal construction oftheir pleadings. See Haines v. Kerner,404

U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be

held to "less stringent standards than formal pleadings drafted by lawyers").

Accordingly, the court has examined the complaint and plaintiff s opposition brief

thoroughly and has attempted to discern all of plaintiff s claims and legal

arsuments.

IL Jurisdiction

In order to determine its jurisdiction over plaintiff s suit, this court must

presume all factual allegations in the complaint to be true and construe all

reasonable inferences in favor ofthe plaintiff. Scheuer v. Rhodes,416U.S.232,

236 (1974), abrogated on other grounds by Harlow v. Fitzgerald,4sT U.S. 800,

814-15 (1982); Reynolds v. Army & Air Force Exch. Sem.,846F.2d746,747

(Fed. Cir. 1988). However, plaintiffbears the burden ofestablishing subject

matter jurisdiction, Alder Terrace, Inc. v. United States,16l F.3d 1372, 1377 (Fed.

Cir. 1998) (citingMcNuttv, Gen. Motors Acceptance Corp. of lnd.,298 U.S. 178,
189 (1936)), and must do so by a preponderance ofthe evidence, Reynolds,846

F.2d at 748 (citations omitted). Ifjurisdiction is found to be lacking, this court

must dismiss the action. RCFC l2(hX3).

The Tucker Act delineates this court's jurisdiction. 28 U.S.C. $ 1491

(2012). That statute "confersjurisdiction upon the Court ofFederal Claims over

the specified categories of actions brought against the United States . . . ." Fisher

v. United States,402 F.3d 1167, ll72 (Fed. Cir. 2005) (en banc) (citations

omitted). These include money damages claims against the federal government

founded upon the Constitution, an act of Congress, a regulation promulgated by an

executive department, any express or implied contract with the United States, or

any claim for liquidated or unliquidated damages in cases not sounding intort. Id.

(citing 28 U.S.C. $ 1a91(a)(1)).

The Tucker Act concurrently "waives the Govemment's sovereign

immunity for those actions." Id. The statute does not, however, create a

substantive cause of action or right to recover money damages in the Court of

Federal Claims. Id. "lTlo come within the jurisdictional reach and the waiver of

the Tucker Act, a plaintiff must identifr a separate source of substantive law that

creates the right to money damages." Id.

In other words, the source underlying the cause of action must be

money-mandating, in that it "'can fairly be interpreted as mandating compensation

by the Federal Govemment . . . ."' United States v. Testan, 424 U.5.392,400

(1976) (quoting Eastport S.S. Corp. v. United States,372F.2d 1002, 1009 (Ct. Cl.

1967) and citing Mosca v. United States,4lT F.2d 1382, 1386 (Ct. Cl. 1969). If

the provision relied upon is found to be money-mandating, the plaintiff need not

rely upon a waiver of sovereign immunity beyond the Tucker Act. Huston v.

UnitedStates,956F.2d259,26l (Fed. Cir. 1992)(citingUnitedStatesv, Mitchell,

463 U.S. 206,218 (1983). If, on the other hand, no money-mandating source

supports the cause ofaction, this court lacks subj ect matter jurisdiction and must

dismiss the action.

III. Workers' Compensation Benefits Claim

As defendant argues, a denial of workers' compensation benefits by the

Department of Labor's OWCP is not subject to review in this court. Def.'s Mot. at
4-5. Defendant relies in large part on Gallov. United States,,76Fed. Cl. 593

(2007),aff'd,529 F.3d 1345 (Fed. Cir. 2008), for its analysis ofrelevant statutes

and other authorities. Plaintiff makes no attempt to refute these authorities, and

the court agrees with the holding in Gallo that this court "lacks jurisdiction over

claims which question the Secretary's discretionary judgment regarding . . .

whether a [workplace disability] claim warrants compensation." Id. at 608

(citation omitted). For this reason, the claim that appears to be the central focus of

the pro se complaint before the court must be dismissed.

IV. DiscriminationClaim

Although it is not entirely clear from the complaint, plaintiff appears to

allege that the denials ofhis applications for disability benefits were the result of

discrimination on the part of various federal agencies. Compl. at l-2. Mr. Gibson

invokes 42 U.S.C. $ 1983 (2006) and the Fourth and Fourteenth Amendments to

the United States Constitution as grounds for relief from discrimination. Compl.

at 2. This court cannot adjudicate claims based on the constitutional provisions

cited by plaintiff because they are not money-mandattng. See Brown v. United

Srates, 105 F .3d 621, 623-24 (Fed. Cir. I 997) (holding that the Fourth Amendment

is not money-mandating); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir.

1995) (holding that the Fourteenth Amendment is not money-mandating).

Furthermore, this court cannot entertain claims based on section 1983 because

such claims must be brought in a district court, not this court.a See, e.g., Trevino v.

United States, 1 l3 Fed. Cl. 204, 209 (2013) (citation omitted). Because this court

lacks jurisdiction over plaintiff s discrimination claim, that claim must be

dismissed.

V. Injunctive or Declaratory Relief

Plaintiff also appears to seek injunctive and declaratory relief from this

court. Compl. at 2. This court does not possess equitable powers that could

a/ The district court has twice rejected this discrimination claim. See Gibson v. Army

Corps of Engineers St, Louis, No.4:13-cv-01676-HEA,20I3 WL 6161120 (E.D. Mo. Nov.25,

20 l3) (rejecting complaint filed Aug. 26,2013 which invoked the Fourth and Fourteenth

Amendments and section 1983); Gibsonv. Social Sec. Admin.,No.4:13-cv-01417-HEA,2013

WL 3941386 (E.D. Mo. July 31, 2013) (rejecting complaint filed July 19,2013 which invoked

the Fourth and Fourteenth Amendments and section 1983).
conceivably assist plaintiff. See, e.g., Brown, 105 F.3d at 624 (statingthat such

demands "for declaratory or injunctive relief[] are also outside the jurisdiction of

the Court of Federal Claims"). For this reason, the court must dismiss any and all

requests for injunctive or declaratory relief in the complaint.

VI. Collateral Attack on the Judgments of a District Court

In plaintiff s opposition brief Mr. Gibson apparently seeks relief from what

he terms the "void judgments" of the district court which dismissed similar, if not

identical, disability benefits claims for lack ofjurisdiction. ,See Pl.'s Opp. at 2-6.

This court does not possess jurisdiction to review decisions of federal district

courts. .See, e.g., Joshua v. United States , 17 F .3d 3 78, 3 80 (Fed. Cir. I 994)

(stating that "the Court of Federal Claims does not have jurisdiction to review the

decisions of district courts"). To the extent that Mr. Gibson's suit in this court

attempts to collaterally attack other court decisions, any such claim must be

dismissed for lack ofjurisdiction.

VII. Denials of Other Federal Benefits

The complaint vaguely alludes to denials of other disability benefits by

federal agencies. See Compl. at 1 (listing agencies that "collectively . . . den[ied]

applicant's application benefit entitlements to disability retirement (sic)).

Attached to the complaint in an unpaginated and unindexed appendix are a variety

of communications from federal agencies, along with various medical records. To

the extent that plaintiff may be seeking review of denials of benefits by the Social

Security Administration and/or the Department of Veterans Affairs, the court does

not possess jurisdiction over such claims. See Marcus v. Uniled States, 909 F.2d

1470, I47l (Fed. Cir. 1990) (holding that this court has no jurisdiction over claims

contesting the denial ofSocial Security disability benefits) (citations omitted);

Pope v. United States,77 Fed. Cl.737,740 (2007) (holding that this court has no

jurisdiction over claims contesting the denial ofveterans' disability benefits)

(citations omitted). Thus, to the extent that the complaint could be construed to

contest the denial offederal disability benefits by the Social Security

Administration andlor the Department of Veterans Affairs, these claims, too, must

be dismissed for lack of subiect matter iurisdiction.

CONCLUSION
This court lacks jurisdiction over the claims in the complaint filed by

| . ..^-a plaintiff.' Accordingly, it is hereby ORDERED that

(1) Defendant's Motion to Dismiss, filed November 12,2003,is

GRANTED;

The Clerk's office is directed to DISMISS the complaint for lack of

subject matter jurisdiction, without prejudice; and

(3) No costs.

5/ Transfer of plaintiff s complaint to another federal court would not be in the interest of

justice. Substantially simiiar, if not identical, claims have been twice rejected by the United

States District Court for the Eastem District of Missouri.

(2)

J. BUS

or Judge