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                                                                            No. l8-573C
                                                                     (Filed: October 26, 2018)
                                                                    NOT FOR PUBLICATION

 +   ** 'i,f **+* *,t r. {.* * rr ** * * *+** * ** t *,t*,k ** **:* {.*
 DARLENEM.BROUGHTON,                                                  *

                                     Plaintiff,                                                       Pro Se Plaintiff; Application to Proceed In
                                                                                                      Forma Pauperis; Motion to Dismiss for Lack
                                                                                                      ofJurisdiction, RCFC 12(b)(1); Statute of
                                                                                                      Limitations,23 U.S.C. $ 2501
 THE TINITED STATES,

                                     Defendant.                                                 ,{.

 ********       :t   *****   :*   *****   *.   *   1.   :r   * * *,* * *   t<   * * *,k * * *   *

                                                                     OPINION AND ORDER

         Plaintiff Darlene M. Broughton, proceeding p1q se, filed suit in this court seeking
 monetary damages for injuries she sustained while she was employed by the united sta;s
 Department of veterans Affairs ("VA") from 2005 to 2009. she funher seeks to proceed in
 forma pauperis. Defendant moves for the dismissal otplaintiffs complaint for lack of
jurisdiction pusuant to Rule l2(bX I ) of the Rules of the United States Court of Federal
                                                                                            Ctaims
 (.'RCFC'). For the reasons set forth below, the court grants both plaintiff s application to
proceed in forma oauperis and defendant's motion to dismiss.

                                                                           I.     BACKGROUND

            Plaintiff-a veteran of the UnitedStates Navy and the Naval Reserve who was honorably
discharged           in 1997-generally alleges that from 2005 to 2009,while
                                                                       she was emploved bv the
vA      in Denver, colorado, and Seattle, washington, she was repeatedly exposed to trur*aou.
waste odors at her workspace, causing her to suffer hypoxia that required medical treatment.l
She specifically identifies six such exposures: one at the Denver vA medical center in 2005,
two at the Denver vA medical center in 2006, two at the seattle vA medical center in 200g, and
two at the Seattle VA medical center in2009.



            I
          The court derives the facts in this section from plaintiff s complaint, the exhibits
attached to the complaint and plaintifls response to defendant's motionto dismiss,
                                                                                       and
documents appearing on the dockets of Broughton v. Merit Systems protection Board,
                                                                                          No. 14-
3063 (Fed. cir. frled Jan. 30,2014), und Brorrghton u. M"rit Syrt".. F.ot""tion Bou.d,
                                                                                           No. t4-
9004 (S. Ct. fited Nov. 14,20t4).



7016 00r{0 B00I 1353 E??1
         rn 2009, plaintiff requested two accommodations from the vA-use of a fan and to be
 reassigned to another desk-but the VA denied her requests. Ultimately, plaintiff was unable to
 work and left the VA in May 2009. She sought workers' compensation from the United States
 Department of Labor office of workers' compensation Programs C'owcp), but her claim was
 denied on May 20,2009. However, plaintiff did qualif' for disability retirement based on a
 disability of asthma, and began receiving monthly annuity payments in December 2009. In
 December 2014, plaintiff was assessed with hypoxic respiratory failure and inhinsic bronchial
 asthma.

         Two years earlier, on November 26, 2012, plaintiff frled an appeal with the Merit
systems Protection Board C'MSPB) in which she alleged that her resignation from the vA was
involuntary. The MSPB dismissed the appeal as untimely on Decembei 30, 2013. plaintiff
appealed the MSPB's decision to the United States Court of Appeals for the Federal Circuit
("Federal circuit") on January 30,2014. The Federal circuit affirmed the MSpB,s decision on
September 11,2014. The United states supreme court ("Supreme court") subsequently denied
plaintiffs petition for a writ of certiorari on April 27,2015, and request for rehearing o1 augurt
10,2015.

        In the meantime, in July 2014, plaintiff submitted another claim for workers'
compensation. The owcP denied the claim on July 17,2015. plaintiff appealed that denial to
th€ united states Department     Labor Employees' compensation Appeais Board (.,ECAB,,).
The ECAB dismissed plaintiff-ofs appeal as untimely on October 31, 2b17.

        In addition, in2015, plaintifffiled suit in the United States District Court for the District
of
   lof 9ya9 ('district court"). The district courr dismissed the suit on February 25,2016, due to
plaintiffs failure to satisfy Rule 8 of the Federal Rules of Civil Procedure. ehintiif appealed the
dismissal to the united states court of Appeals for the Tenth circuit (.,Tenth circuit,), which
affirmed the district court's decision on May 5,2016.

        Plaintiff frled her complaint in this court on April lg,20lg. In her complaint, she
requests inflation-adjusted statutory civil penalties for the VA's deliberate violitions
                                                                                         ofthe Clean
Air Act or, in the alternative, damages in the amount of $3,195,000 for the vA,s deliberate
violations of the clean Air Act, the occupational Safety and Health Act, and the Americans
                                                                                                with
Disabilities Act. She further indicates jurisdiction is proper under the Contract Disputes
                                                                                            Act of
1978' Finally, she states that she has "not received
                                                       [the] military pay" to which she was entitled
as a result of the injury she sustained during her emplolment with the
                                                                          VA.
        on June 18, 2018, defendant filed a motion to dismiss plaintifps complaint for lack of
jurisdiction pursuant to RCFC l2(bXl). plaintiff filed u.erponse
                                                                  in opposition to defendant's
motion on July 26,2018, and defendant filed a reply on August 10, 201g. The court
                                                                                     deems     oral
argument unnecessary.




                                                -2-
                                           II.   DISCUSSION

                                        A. Standard of Review
          When considering whether to dismiss a complaint for lack of jurisdiction pursuant to
  RCFC 12(b)(1), a court assumes that the allegations in the complaint are true and construes those
  allegations in the plaintifPs favor. Trusted Integration. Inc. v. united states, 659 F.3d 1159,
  1163 (Fed. cir. 2011). However, plaintiffs proceeding p1q se are not excused from meeting
  basic jurisdictional requirements, Henke v. united states,60 F.3d 79s,799 (Fed. cir. 1995),
  even though the court holds their complaints to "less stringent standards than formal pleadings
  drafted by lawyers," Haines v. Kemer, 404 u.s. 519,520-21 (1972). rn other words, a plaintiff
 proceeding p1q se must prove, by a preponderance of the evidence, that the court possesies
 jurisdiction. See McNutt v. Gen. Motors Acceptance com.,298 u.s. 17g, lg9 (1936); Trusted
 Integration. Inc.,659 F.3dat 1163. Ifthe court finds that it lacks subject matter jurisdiction over
 a claim, RCFC l2(h)(3) requires the court to dismiss that clarm.


                                            B. Jurisdiction
        Whether the court has jurisdiction to decide the merits of a case is a threshold matter.
 See Steelco. v. citizens for a Better Env't, 523 u.s. 93, 94-95 (1998). ,.without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when rt
ceases to exist, the only function remaining to the court is that ofannouncing the fact and
dismissing the cause." Ex parte Mccardle, T4 u.s. (7 wall.) so6,514tlg6gy. Thgp.rties orthe
court
      +l spalle may challenge the existence of subject matter jurisdiction at any time. Arbaush
v. Y & H Corp., 546 U.S. 500, 506 (2006).

         The ability of the United states court of Federal claims (,,court of Federal
                                                                                      claims,,) to
entertain suits against the United States is limited. "The United states, as sovereign, is immune
from suit save as it consents to be sued." united States v. Sherwood, 312 u.s. sg:4,'sg6 (1941).
The waiver of immunity "cannot be implied but must be unequivocally
                                                                                       uoit"d
slatcs:-King, 395 u.s. r,4 (1969). Further, "[w]hen waivei legislation"*pr"rr"d.';
                                                                            contains a statute of
limitations, the limitations provision constitutes a condition on th1 waiver ofsovereign
immunity." Block v. North Dakota ex rel. Bd. of univ. & Sch. Lands, 461 u.s. 2n:287 (rgi3).

         The Tucker Act, the principal statute goveming the jurisdiction ofthis court,
       .                                                                                  waives
 sovereign immunity for claims against the United States, not sounding in
                                                                             tort, that are founded
upon the united states constitutio-n, a federal statute or regulation, or--
                                                                                      or implied
conftact with the united states. 28 u.s.c. g 1a91(a)(l) (zbl2). However,     "*pi.r,
                                                                               the Tucker ict is
merely ajurisdictional statute and "does not create any substantive right enforceable
                                                                                          against the
united States for money damages." United States v. Testan,424u.i.3g2,3gg(1976j.
                                                                                               Instead,
the substantive right must appear in           ,or.." of lu*, *ch      a,.money-.-autrig
                                       -oth..                       as
constitutional provision, statute or regulation that has been violated, o,
                                                                            *          or im-plied
                                                                              "*pr"r, 154i.1554
contract with the United states." Levgiadies Harbor. Inc. v. UnitedStates,zip.za
(Fed. cir. 1994) (en banc). In addition, to fall within  th4uri.ai"t           court of Federal
                   against the,United stales filed in the court must be "filed within six years
9]:lT:,l,lt:tltm
such claim first accrues." 28 u.s.c. g 2501; see also John R. sand & Gravel co. .,r.
                                                                                                   after
                                                                                         united

                                                  -3-
 states, 552 u.s. 130, 133-35 (2008) (providing that the limitations period set forth in 28 u.S.c.
 $ 2501 is an "absolute" limit on the ability of the Court of Federal Claims to reach the merits of a
 claim); Martinez v. United States, 333 F.3d 1295,1i03 (Fed. Cir. 2003) (en banc) (.,A cause of
 action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are
 necessary to enable the plaintiffto bring suit, i.e., when'all events have occurred to fix the
 Govemment's alleged liability, entitling the claimant to demand pal,rnent and sue here for his
 money."' (quoting Naeer Elec. Co. v. United States,369F.2d 847, 851 (Ct. Cl. 1966).

                 C. The Court Lacks Jurisdiction to Entertain plaintiff s Claims

  . construing the allegations in the complaint in the light most favorable to plaintiff,
 plaintiff asserts that she is entitled to monetary damages for injuries she suffered while employed
 by the vA from 2005 to 2009. In other words, plaintiffs claims accrued no later than 2009.
 Plaintiff did not file suit in this court until 2018, more than six years after her claims accrued.
 Because plaintiff did not file her complaint within the six-year limitation period set forth in 28
 U.S.C. g 2501, the court lacks jurisdiction to entertain plaintiff s claims.

         Further, the court would lack jurisdiction over plaintiff s claims even if her claims were
 within the statute of limitations. First, plaintiff is seeking damages for personal injuries, in other
 words, she is asserting claims sounding in tort. The Court of Federal Claims iacks iurisdiction
 over such claims. See 28 U.S.C. g 1491(a)(1).

        Second, the Court ofFederal Claims is not authorized to entertain claims under the three
slatutes identified by plaintiff-the clean Air Act, the occupational Safety and Health
                                                                                        Act, and
the Americans with Disabilities Act. The Clean Air Act permits individuals to raise certain
challenges in federal courts ofappeals, see 42 u.s.c. 7607(b)(l) (2012), andseek to enforce
                                                        $
emission standards or limitations in federal district courts, s". io. g 760a({. Accord Del. valley
 citizens council for clean Air v. Davis ,932 F.2d256,265 (3d cir. l99l
                                                                             ) i.tr, ,ho.t,
                                                                                             "itlr"n.
 who claim that the emission standards themselves are inadequate must petiiion the appropriate
 court of appeals pursuant to g 7607, while citizens who merely wish toinforce the #irriurrs
 standards may sue in district court pursuant to 7604.. (footnote omitted)). The
                                                  $                                     court of
 Federal claims is neither a federal court ofappeals nor a federal district court. See2gU.S.c.
 $ 41 (identifying the thirteen federal courrs ofappeals); Ledford v. United Statel 2 97 F.3d 137g,
 1382 (red. cir. 2002) (per curiam) ("The court ofF"d"rul clui-r ir        no      t i"t court ofthe
 UnitedStates...."). Moreover, "the Clean Air Act does not authorize a private cause ofactlon
 for compensatory damages for alleged violations ofthe Act. . . ." Abuhouran v. KaiserKane.
4o,No. l0-6609 (NLH/KMW),2011 wL 6372208,ut *+                  1o.N.l.D--q.rr;@
Bowlinq v. United States,93 Fed. cl. 551,559-60 (2010) (holding that the.clean'Air AJ..is
intended to address environmental harm rather than personal injury claims,').
                                                                                    The occupational
Safety and Health Act does not allow for individuals to file suii foi violations
                                                                                    ofthe Acior rts
regulations. See 29 u.S.c. $ 653 (20 r 2) ('Nothing in this chapter shall be construed to
supersede or in any manner affect any workmen's compensation law or to enlarge
                                                                                         or diminish or
affect in any other manner the common law or statutory rights, duties, or liabilities of
                                                                                             employers
and employees under any law with respect to injuries, iir"is"r, or death ofemployees
                                                                                              u.irrrrg ou,
        -_     course o{ employment."); Crane v. Conoco. Inc., 4l F.3d 547, 55a
9f.:_g:    th"                                                                        1Ottr Clr. t ee+;
("[Violations ofthe Occupational Safety and Health Act] do not themselves
                                                                                 constitute a Dnvate


                                                   -4-
cause ofaction for breach."); Bowline, 93 Fed. Cl. at 558 (observing that violations ofthe
Occupational Safety and Health Act "are properly reported to the office ofthe Secretary of
Labor" and holding that the Court of Federal Claims has no jurisdiction over claims alleging
such violations). And, the Americans with Disabilities Act does not apply to the federal
government as an employer. 42 U.S.C. $ 12111(2), (5); Searles v. United States, 88 Fed. Cl.
801, 805 (2009).

         Third, although plaintiff asserts that this court possesses jurisdiction to entertain her
claims pursuant to the Contract Disputes Act of 1978, that statute applies only to contracts with
the federal goveffment to procure goods and services. See 41 U.S.C. 57102 (2012). Plaintiff
has not alleged such a contractual relationship with the federal govemment. Indeed, plaintiff has
not alleged that she has any contractual relationship with the federal govemment.2 Cf. Nat'l R.R.
Passenger Com. v. Atchison Topeka & Santa Fe Rv. Co.,470 U.S. 451,465-66 (1985)
("[A]bsent some clear indication that the legislature intends to bind itself contractually, the
presumption is that'a law is not intended to create private contactw or vested rights but merely
declares a policy to be pursued until the legislature shall ordain otherwise.' This well-
established presumption is grounded in the elementary proposition that the principal function of
a legislature is not to make contracts, but to make laws that establish the policy of the state."
(citations omitted) (quoting Dodge v. Bd. ofEduc.,302 U.S. 7a,79 (1937))); Schism v. United
States, 316 F.3d, 1259,1274-75 (Fed. Cir. 2002) (en banc) ("Federal employees . . . serve by
appointment, not contract . . . ."); Chu v. United States ,773 F .2d 1226, 1229 (Fed. Cir. 1985)
(noting that the relationship between the federal govemment and its employees is not govemed
by the general principles of contract law); Martinez v. United States,48 Fed. Cl. 851, 862-63
(2001) (holding that a federal regulation did not create privity of contract between the plaintiff
and the government), affd, 281 F.3d 1376 (Fed. Cir.2002).

        Fourth, to the extent plaintiffis so requesting, the Court ofFederal Claims may not
review the decisions of the OWCP, ECAB, MSPB, district court, Tenth Circuit, Federal Circuit,
or Supreme Court. Decisions of the OWCP may only be appealed to the ECAB, 20 C.F.R.
$ 10.600 (2018), and decisions of the ECAB are not subject to judicial review, id. g 501.6(d); 5
U.S.C. $ 8128(b) (2012). Decisions of the MSPB are appealable to the Federal Circuit or, in
certain circumstances, other federal courts ofappeals, federal district courts, or the Equal
Employrnent Opportunity Commission.3 See 5 U.S.C. 5 7703;28 U.S.C. $ 1295(a)(9). And, the
Court ofFederal Claims lacks the authority to review the decisions ofother federal courts; as
explained by the Supreme Court:

        2 In the documents constituting her response to defendant's motion
                                                                            to dismiss, plaintiff
refers only to a contract between the VA and a union representing the VA's employees. Plaintiff
has not provided any evidence that she has a right to sue the VA for breach ofthat contract in the
Court of Federal Claims.

        3 To the extent that the Corut ofFederal
                                                  Claims would have jurisdiction to review
decisions of the MSPB pursuant to 5 U.S.C. g 7703(b)(2)-which concerns discrimination
claims that can be asserted under the Fair Labor Standards Act of 1938-petitions for review
under that provision must be filed within thirty days of the MSPB's decision. Plaintiff filed her
complaint in 2018, more than four years after the MSPB issued the decision in plaintiff s case.
         Congress has prescribed a primary route, by appeal as ofright and certiorari,
        through which parties may seek relief from the legal consequences ofjudicial
        judgments. To allow a party who steps offthe statutory path to employ . . .
                                                                                     [a]
        collateral attack on the judgment would-1uite apart from any considerations of
        faimess to the parties-disturb the orderly operation of the federal judicial
        system.

 U.S. Bancom Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18,27 (1994); accord Shinnecock
 Indian Nation v. united states,782F.3d134s,l3s2 (Fed. cir. 2015) ("Binding precedenr
 establishes that the Court of Federal Claims has no jurisdiction to review the merits of a decision
 rendered by a federal district court."); Vereda. Ltda. v. United states,2Tl F.3d,1367, 1375 (Fed.
 Cir. 2001) ("[T]he Court ofFederal Claims cannot entertain a taking claim that requires the court
 to 'scrutinize the actions ofl another tribunal." (quoting Allustiarte v. united states,2s6 F.3d,
 1349' 1352 (Fed. cir. 2001))); Joshua v. Unired States, 17 F.3d 378, 380 (Fed. cir. 1994) (,.[T]he
 Court of Federal Claims does not have jurisdiction to review the decisions of district courts . . .
 relating to proceedings before those courts.',).

        Finally, to the extent that plaintiffs assertion that she has "not received
                                                                                    [the] military
pay" to which she was entitled as a result of the injury she sustained during her employment with
the VA is a claim for military pay,a the court cannot consider it. It is well establishid that 37
u s'c' $ 20a@)Q), which entitles military service members to basic pay while on active duty, is
  1o]r:y-mandating source ofjurisdiction in the Court of Federal Claims. Metz v. United States,
a
466 F.3d 991,998 (Fed. cir. 2006) (citing In re united States. 463 F.3d 1329. 1i34 Ged. cir.
2006); James v. caldera, I 59 F.3d 523, 581 (Fed. cir. 1998)). However, a claim for back pay
arising under 37 u.s.c. $ 204 accrues no later than the date on which the service member was
separated from the military. Martinez, 333 F.3d at 1303-04. Accordingly, plaintiffs purported
claim for military pay accrued in 1997 when she was discharged from thi Naval Reseive, more
tlan six years before she filed suit in this court. Thus, such a claim would be untimely under 2g
u.s.c. $ 2501. Moreover, to take advantage of 37 U.S.c. g 20a(a\l), a plaintiff musi establish
          a Notwithstanding
                              the language used by plaintiff in her complaint, the court suspects that
 plaintiff may be requesting something different than military pay. Based on the contents of some
 of the documents attached to the complaint, plaintiff may be;laiming that she did not receive
 credit for her military service when the amount of her diiability retirement payments was
 determined. If so, such a claim would be beyond this court's jurisdiction because, at a minrmum,
 it accrued in 2009, more than six years before plaintiff filed her complaint. Altematively, based
 on the contents ofone ofthe documents constituting her response to defendant's motionto
 dismiss, plaintiff may be claiming that she was not tredited with deemed military wages u,hile
 she was on active duty. Deemed military wages are used to allow members of a unifJrmed
 service_to receive credits for purposes of determining Social Security benefits. See42U.S.c.
 { 429; Soc Sec. Admin., social Security Handbook 5 953, https://www.ssa.gov/op_Home/
 handbook/handbook.09/handbook-0953.html (last revised Aug.9,2006). A-claim f& deemed
 military wages related to military service that concluded in l9-97 would be beyond this court,s
jurisdiction because, at a minimum, it accrued more than six years before plaintifffiled
                                                                                            her
complaint.


                                                 -6-
that her separation from the military was involuntary. Metz,466 F.3d at 998. Here, plaintiff has
not alleged that she was wrongfully discharged from the Naval Reserve. Accordingly, ifplaintiff
is asserting a claim for military pay, the court would be required to dismiss it for failure to stare a
claim upon which it could grant reliefpursuant to RCFC 12(b)(6).

        In sum, the Court of Federal Claims lacks jurisdiction to entertain plaintiff s claims
regardless of how they are characterized.

                III.   APPLICATION TO PROCEED IN FORMA PAUPERIS

         As previously noted, plaintiff filed, concurent with her complaint, an application to
proceed in forma pauperis. Pursuant to 28 u.s.c. 1915, the court of Federal claims may
                                                      $
waive filing fees and security under certain circumstances. see 28 u.s.c. 1915(a)(1); see also
                                                                                $
Halzes v. united states,7l Fed. cI.366,366-67 (2006) (concluding that 2g u.s.c.
                                                                                        $ 1915(a)(1)
applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma
p4gpgliq must submit an affidavit that lists all oftheir assets, declares that they are unable to pay
the.fees or give the security, and states the nature ofthe action and their belieithat they are
entitled to redress. 28 U.S.C. $ 1915(a)(1). Here, plaintiffhas satisfred all three requiiements.
Accordingly, the court grants plaintiff s application and waives her filing fee.

                                       IV. CONCLUSION
        For the reasons stated above, the court GRANTS plaintiffs application to proceed in
 forma Dauperis, GRANTS defendant's motion to dismiss and DISMISSES plaintiff s complaint
wITHour PREJUDICE for lack ofjurisdiction. No cosrs. The clerk is directed to enter
judgment accordingly.

       IT IS SO ORDERED.




                                                -7-
