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                                            No. 15-1145C
                                       Filed: January 29, 2016                         JAN 2 9   2016

                                                                                     U.S. COURT OF
                                                                                    FEDERAL CLAIMS
  GILBERT EDMUND LEWIS
                                                         Keywords: RCFC 12(b)(1); Motion to
                         Plaintifi                       dismiss; Veterans' Judicial Review Act;
                                                         38 U.S.C. $ 7252; No Jurisdiction of
                                                         Claims Sounding in Tort; 28 U.S.C.
                                                         $ 1ae1(a)(1).
 THE UNITED STATES OF AMERICA,

                         Defendant.




Gilbert Edmund Zewis, New York, NY, Plaintiff , pro se.

Tanya B. Koenig,Tial Altomey, with whom werc, Scott D. Austin, Assistant Director, Robert E.
Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attomey General,
United States Department of Justice, Washington, DC, for Defendant.

                                      OPINIONAND ORDER

KAPLAN, Judge.

         Plaintiff Gilbert E. Lewis filed this action ple se to seek damages related to improper
medical care he allegedly received at a Veterans Administration medical facility. The case is
before the Court on the government's motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) ofthe Rules of the Court ofFederal Claims ("RCFC"). For the reasons
set forth below, the govemment's motion is GRANTED and the complaint is DISMISSED
without prejudice.l




I Mr. Lewis filed a request to proceed in forma pauperis. To proceed
                                                                          in forma pauperis, a
plaintiff must submit an affrdavit that includes a list ofall of their assets, a declaration that they
are unable to pay the fees or give the security for an attomey, and a statement of the nature of
their action and their beliefthat they are entitled ro judgment. 28 U.S.C. g 1915(a)(l). Here,
Plaintiff satisfied these requirements, and the Court therefore grants his application to proceed in
forma pauperis for the limited purpose of dismissing the complaint.
                                        BACKGROTJND'

        Mr. Lewis alleges that "improper medical surgical diagnosis, procedure and after care"
from the VHA resulted in the "botched appearance of [his] nose." Compl. at l, ECF No. 1'
According to Mr. Lewis, in 2007, he underwent outpatient services to address the results of this
alleged malfeasance. However, due to the VHA's prior "negligence" in 1976, he claims, the
outpatient procedure was more "di{ficult," and was ultimately "not complete." Id. Mr. Lewis
alleges that "outside cosmetic medical surgeons" have confirmed that the care he received in
1976 was "incompetent." Id. ln20l3, Mr. Lewis allegedly received confirmation from a medical
intem at a VHA hospital that he had a "rhino vault deficiency." Id.

         In addition to these claims, Mr. Lewis alleges that officials at the "U.S. Court of Appeals,
[] the Board of Veteran Appeals, [and] the [VA] or Veterans Hospital" engaged in "political
filibustering, duress, shenanigans and career finagling" in order to avoid addressing his claims.
Id. It appears that Mr. Lewis has brought at least some of these claims of "malfeasance" to the
Court of Federal Claims before; attached to Mr. Lewis's complaint is an opinion from the Chief
Judge ofthis Court, dated August 31,2015, regarding a federal judicial misconduct complaint
filed by Mr. Lewis. Id. at 3. Chief Judge Campbell-Smith dismissed the complaint, noting that it
was not lodged against a federal judge in the Court ofFederal Claims, and that therefore, the
Court did not have jurisdiction to consider the complaint. Id.

         In his present complaint, Mr. Lewis seeks relief for the "heritage of medical
malfeasance." Id. at l. He requests compensation for'1he initial trauma" related to his nose
surgery, the "depreciation ofhis [c]ivil fl]iberties," ard the alleged misconduct by federal
offrcials. Id. The amount claimed for damages, according to the civil cover sheet accompanying
his complaint, is $40,000,000.

                                          DISCUSSION

        In ruling on a motion to dismiss, the court accepts as true all undisputed facts in the
pleadings and draws all reasonable inferences in favor of the plaintiff. Trusted InteCration. Inc. v.
United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The court may "inquire into jurisdictional
facts" to determine whether it has jurisdiction. Rocovich v. United States , 933 F .2d 991, 993
(Fed. Cir. 1991). The plaintiff bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence. Brandt v. United States, 710 F.3d 1369,1373 (Fed. Cir. 2013).
Pro se plaintiffs are held to "less stringent standards than formal pleadings drafted by lawyers."
Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even pgq gg plaintiffs must persuade
the court that jurisdictional requirements have been met. Kelley v. Sec'y. U.S. Dep't oflabor,
8l2F.2d 1378, 1380 (Fed. Cir. 1987).

       Pursuant to the Tucker Act, the United States Court ofFederal Claims has jurisdiction to
"renderjudgment upon any claim against the United States founded either upon the Constitution,
or any Act ofCongress or any regulation ofan executive department, or upon any express or


2
 The facts set forth in this Opinion are based on the allegations in the complaint, which the
Court accepts as true for pulposes of ruling on the govemment's motion to dismiss.
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort." 28 U.S.C. $ 1491(a) (2012). The Tucker Act serves as a waiver of sovereign
immunity and ajurisdictional grant, but it does not create a substantive cause ofaction. Jan's
Helicopter Serv.. Inc. v. Fed. Aviation Admin. , 525 F.3d 1299,1306 (Fed. Cir. 2008). A
plaintiff, therefore, must establish that "a separate source of substantive law . . . crcates the right
to money damages." Id. (quoting Fisher v. United States,402F.3d 1167 , 1172 (Fed. Cir. 2005)
(en banc in relevant part)).

        To the extent that Mr. Lewis's complaint is construed as a claim that he was a victim of
medical malpractice at the hands ofthe DVA or tortious conduct by other federal officials, the
Tucker Act expressly excludes claims "sounding in tort" from this Court's jurisdiction. See 28
U.S.C. $ 1491(a)(1); New Am. Shipbuilders. Inc. v. United States,871F.2d 1077, 1079 (Fed.
Cir. 1989) (observing that "[i]fthe govemment misconduct alleged was tortious, jurisdiction is
not ganted the Claims Court under the Tucker Act"). Nor does this Court have jurisdiction over
Mr. Lewis's claims to the extent that they involve allegations that he has been wrongfully denied
benefits by the Veterans Administration. Kalick v. United States, 109 Fed. Cl. 551, 556-57
(2013), affd,541 Fed. App'x 1000 (Fed. Cir. 2013). Such claims are subject to the Veterans'
Judicial Review Act, 38 U.S.C. $$ 7251-99 (2006), which creates the sole statutory scheme
under which former service members may challenge VA decisions denying access to veterans
benefits. Under that Act, a veteran must first appeal the denial ofhis or her application to the
Board of Veterans Appeals ('BVA). 38 U.S.C. $ 7104. Following an adverse decision by the
BVA, the veteran can seek a judicial review by the Court of Veterans Appeals. 38 U.S.C.
$ 7252(a). Finally, it is the Federal Circuit that has jurisdiction to review a decision by the Court
of Veterans Appeals, not the Court of Federal Claims. Ledford v. West, 136 F.3d 776,782 (Fed.
Cir. 1998).

                                           CONCLUSION

        For the reasons stated above, the Court GRANTS Plaintiffs motion to proceed in forma
pauperis, GRANTS the govemment's motion to dismiss, and DISMISSES Plaintiff s complaint
for lack ofjurisdiction, without prejudice. The Clerk is directed to enter judgment accordingly.



        IT IS SO ORDERED.


                                                          c,/4----
                                                       ELAINE D. KAPLAN
                                                       Judge
