           3Jn tbe Wniteb ~tates QCourt of jfeberal (!Claims
                                          No.17-1883C                                    FILED
                                        Filed April 6, 2018
                                     NOT FOR PUBLICATION                                 APR - 6 2018
                                                                                         U S. COURT OF
                                               )                                        FF:C!Efl,S.L CLi\\~,1S
 ROBERT SHAPIRO,                               )
                                               )
                        Plaintiff,             )
                                               )       Pro Se; RCFC 12(b)(l); RCFC 12(b)(6);
 V.                                            )       Subject-Matter Jurisdiction; Failure to
                                               )       State A Claim; In Forma Pauperis.
 THE UNITED STATES,                            )
                                               )
        Defendant.                             )
~~~~~~~~~~~~~~- )

       Robert Shapiro, Hamilton, NJ, plaintiff prose.

        Vito S. Solitro, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readier, 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 prose, Robert Shapiro, brought this action seeking to recover monetary damages
and certain veterans benefits from the government. The government has moved to dismiss this
matter for lack of subject-matter jurisdiction and for failure to state a claim upon which relief
may be granted, pursuant to Rules 12(b)(l) and (b)(6) of the Rules of the United States Court of
Federal Claims ("RCFC"). See generally Def. Mot. Plaintiff has also moved to proceed in this
matter informapauperis. See generally Pl. IFP Mot. For the reasons set forth below, the Court:
(I) GRANTS the government's motion to dismiss; (2) GRANTS plaintiffs motion to proceed
informa pauperis; and (3) DISMISSES the complaint.




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II.    FACTUAL AND PROCEDURAL BACKGROUND 1

       A.       Factual Background

       Plaintiff prose, Robert Shapiro, is a United States Air Force veteran and he commenced
this action on December 5, 2017. 2 See generally Comp!. Plaintiffs complaint is difficult to
follow. But, it appears that plaintiff seeks to recover monetary damages from the government in
connection with certain personal injuries that he sustained prior to commencing this litigation,
and unspecified veterans' benefits. Id. at 2.

        Specifically, plaintiff alleges in the complaint that he has sustained several personal
injuries, including a "head injury," a "facial injury," and an "abdomen injury." Id. at 2. Plaintiff
also alleges that he is a "veteran/service member" and he appears to seek veterans' benefits. Id.
at 3 (citing to a "Veteran or Service Relief Act"). As relief, plaintiff requests, among other
things, $160,000.00 in monetary damages and unspecified veterans' benefits. Id. at 2-3; see also
civil cover sheet (docket entry no. 1-1 ).

        B.      Procedural Background

        Plaintiff filed the complaint and moved to proceed in this matter in forma pauperis on
December 5, 2017. See generally Comp!.; Pl. Mot. On February 5, 2018, the government filed a
motion to dismiss the complaint. See generally Def. Mot.

        On March 5, 2018, plaintiff filed a response and opposition to the government's motion
to dismiss. See generally Pl. Resp. On March 19, 2018, the government filed a reply in support
of its motion to dismiss. See generally Def. Reply.

        These matters having been fully briefed, the Court resolves the pending motion to
dismiss.


1
  The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
("Comp!."); the government's motion to dismiss ("Def. Mot."); plaintiffs motion to proceed informa
pauperis ("Pl. IFB Mot."); and plaintiffs response and opposition to the government's motion to dismiss
("Pl. Resp."). Unless otherwise noted, the facts here are undisputed.
2
 In his response and opposition to the government's motion to dismiss plaintiff states that he is a United
States Air Force veteran. Pl. Resp. at 2.



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III.    LEGAL ST AND ARDS

        A.     Pro Se Litigants

        Plaintiff is proceeding in this matter prose. The Court recognizes that parties proceeding
prose are granted greater leeway than litigants represented by counsel. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (holding that prose complaints are held to "less stringent standards
than formal pleadings drafted by lawyers"). Nonetheless, "[w]hile a court should be receptive to
pro se plaintiffs and assist them, justice is ill-served when a jurist crosses the line from finder of
fact to advocate." Demes v. United States, 52 Fed. Cl. 365, 369 (2002). And so, the Court may
excuse ambiguities in plaintiffs complaint, but the Court does not excuse the complaint's
failures. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

        In addition, this Court has long recognized that "the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). For this reason, a prose plaintiff-like
any other plaintiff-must establish the Court's jurisdiction to consider his claim 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)).

        B.      RCFC 12(b)(l)

        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
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); see also RCFC 12(b)(l).
Plaintiff bears the burden of establishing subject-matter jurisdiction, and 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).

        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. ofAm., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the Court
jurisdiction over:


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       [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. § 149l(a)(l). 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 come
within the jurisdictional reach and waiver of the Tucker Act, a plaintiff must identify a separate
source of substantive law that creates the right to money damages. Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005). If the Court finds that the source of law alleged is not money-
mandating, the Court must dismiss the case for lack of jurisdiction. Id at 1173; RCFC 12(b)(l).

       Specifically relevant to this dispute, it is well-established that the Tucker Act explicitly
places tort claims beyond the jurisdiction of this Court. 28 U.S.C. § 149l(a) ("The United States
Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the
United States ... not sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195, 204
(2010) (citation omitted) ("[T]he Tucker Act expressly excludes tort claims ... from the
jurisdiction of the United States Court of Federal Claims."); 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, 521F.3d1338, 1343
(Fed. Cir. 2008) ("The plain language of the Tucker Act excludes from the Court of Federal
Claims jurisdiction [over] claims sounding in tort."); The Court is similarly without jurisdiction
to consider veterans' benefits claims. See, e.g., Hickman v. United States, 122 Fed. Cl. 645, 650
(2015); Trevino v. United States, 113 Fed. Cl. 204, 209 (2013), ajj"d, 557 Fed. App'x 995 (Fed.
Cir. 2014); Ferreira v. United States, 72 Fed. Cl. 1, 6 (2006); Van Allen v. United States, 66 Fed.
Cl. 294, 296 (2005); see also 38 U.S.C. § 51 l(a) (providing that the Secretary of Veterans
Affairs shall decide all questions oflaw and fact involving the provision of veterans' benefits to
veterans or the dependents or survivors of veterans and that the Secretary's decision may not be
reviewed by any other official or by any court subject to certain exceptions.). And so, the Court
must dismiss tort claims and veterans' benefits claims for lack of subject-matter jurisdiction.
RCFC 12(b)(l).


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       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 must assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the non-movant's favor.
Erickson, 551 U.S. at 94; see also RCFC 12(b)(6). 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 At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). And so, 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. 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 defendant. Id. at 679.

IV.    LEGAL ANALYSIS

       A.      The Court May Not Consider Plaintiff's Tort Claim

       As an initial matter, to the extent that plaintiff alleges a tort claim for personal injury in
the complaint, the Court may not consider this claim under the Tucker Act. In the complaint,
plaintiff alleges that he has sustained several personal injuries, including a "head injury," a
"facial injury," and an "abdomen injury." Comp!. at 2. Plaintiffs claim plainly sounds in tort.

       It is well-established that the Tucker Act explicitly places plaintiffs tort claim beyond
the jurisdiction of this Court. 28 U.S.C. § 149l(a) ("The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States ... not
sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010) (citation omitted)
("[T]he Tucker Act expressly excludes tort claims ... from the jurisdiction of the United States
Court of Federal Claims."); 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, 521F.3d1338, 1343 (Fed. Cir. 2008) ("The plain
language of the Tucker Act excludes from the Court of Federal Claims jurisdiction [over] claims




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sounding in tort."). And so, the Court must dismiss plaintiffs tort claim for lack of subject-
matter jurisdiction. RCFC 12(b)(l).

        B.      The Court May Not Consider Plaintiff's Veterans' Benefits Claims

        Plaintiffs claim for veterans' benefits is also jurisdictionally precluded under the Tucker
Act. In the complaint, plaintiff also alleges that he is a "veteran/service member" and he appears
to seek unspecified veterans' benefits from the government. Id. at 2-3; see also civil cover sheet
(docket entry no. 1-1 ). But, this Court has long held that it does not possess subject-matter
jurisdiction to consider claims for veterans' benefits. See, e.g., Hickman v. United States, 122
Fed. Cl. 645, 650 (2015); Trevino v. United States, 113 Fed. Cl. 204, 209 (2013), aff'd, 557 Fed.
App'x 995 (Fed. Cir. 2014); Ferreira v. United States, 72 Fed. Cl. 1, 6 (2006); Van Allen v.
United States, 66 Fed. Cl. 294, 296 (2005); see also 38 U.S.C. § 51 l(a). And so, the Court must
also dismiss plaintiffs veterans' benefits claim for lack of subject-matter jurisdiction. RCFC
12(b)(l). 3

        C.        Plaintiff May Proceed In Forma Pauperis

        As a final matter, plaintiff has also filed a motion to proceed in this matter informa
pauperis and he seeks a waiver of the Court's filing fee. See generally Pl. IFP Mot. In his
application to proceed in forma pauperis, plaintiff states that he is not employed and is unable to
pay the Court's filing fee. Id. at I. This Court may authorize commencement of a suit without
prepayment of fees when a person 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); see also 28 U.S.C. §
2503(d). Due to the Court's summary disposition of this case, and plaintiffs prose status, the
Court finds that plaintiff satisfies the statutory requirements to proceed in forma pauperis. And
so, the Court GRANTS plaintiffs motion to proceed informapauperis.




3
  The Court must also dismiss plaintiffs tort and veterans' benefits claims for failure to state a claim upon
which relief may be granted. RCFC 12(b)(6). Plaintiff's handwritten complaint does not allege any facts
to show why he is entitled to recover monetary damages or veterans' benefits from the government. See
generally Campi.


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V.     CONCLUSION

       In sum. when construed in the light most favorable to plaintiff, the complaint makes clear
that the Court does not possesses subject-matter jurisdiction to consider any of plaintiffs claims.
And so, the Court must dismiss this matter for lack of subject-matter jurisdiction. RCFC
l 2(b )(1 ). Because plaintiff satisfies the statutory requirements to proceed in this matter in forma
pauperis, plaintiff may proceed in this litigation without paying the Court's filing fee.

        And so, for the foregoing reasons, the Court:

        I. GRANTS the government's motion to dismiss;

        2. GRANTS plaintiff's motion to proceed informa pauperis; and

        3. DISMISSES the complaint.

        The Clerk is directed to ENTER judgment accordingly.

        No costs.

        IT IS SO ORDERED.




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