                                       ORIG!ilIAL
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                                      No. 16-1568C (Pro Se)
                          (Filed: February 23,2017 | Not for Publication)

                                                       Kelvords: Pro Se Complaint; Tucker Act;
    DANIEL C. PATILLO                                  Longshore and Harbor Workers'
                                                       Compensation Program.
                        Plaintiff,
                                                                                     FILED
                                                                                   FEB 2 3     2017

    THE LINITED STATES,                                                           U.S. COURT OF
                                                                                 FEDEML CI-AIMS
                        Defendant.



Daniel C. Paril/o, Newport, OR, Plaintiff Pro   Se.


Kelly A. Krystyniak, Tial Attomey, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, DC, for Defendant, with whom were L. Misha Preheim,
Assistant Director, Robert E. Kirschman,./r., Director, and Joyce R. Branda, Deputy Assistant
Attorney General.

                                     OPINION AND ORDER

KAPLAN, Judge.

         The pro se plaintiff in this case, Daniel C. Patillo, filed a document, which the Clerk of
 Court deemed a complaint, on November 23, 2016. See Docket No. 1. The document is hard to
 decipher and does not appear to contain a cause of action or clear prayer for relief. On January
 23,2017 , the govemment moved to dismiss the complaint for lack of subject matter jurisdiction
 or, altematively, for failure to state a claim upon which relief can be granted. Docket No. 6. For
the reasons discussed below, the govemment's motion to dismiss for lack of subject matter
jurisdiction is GRANTED and Mr. Patillo's complaint is DISMISSED without prejudice,r

                                         BACKGROUND

       Mr. Patillo's allegations seem to relate to claims under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. $$ 901-50, which is administered by the United States
Department of Labor.2 See. e.s., Compl. at 1. Pursuant to that Act, after a cliim is filed with a

I Mr. Patillo also filed a motion for
                                      leave to proceed in forma pauperis. Docket No. 5. That
motion is GRANTED solely for purposes of dismissing the complaint.

2
 The Longshore and Harbor workers' compensation Program is one ofthe Department of
Labor's "four major disability compensation programs which provide wage replacement
deputy commissioner in the compensation district in which the employee was injured, the
claimant, his employer, or any other interested party may request a hearing before an
administrative law judge. 33 U.S.C. $ 919. The administrative law judge then makes a
determination regarding the claimant's entitlement to disability compensation. See id. If a party
is dissatisfied with the administrative law judge's decision, that party may appeal the decision to
the Benefits Review Board. Id. $ 921(b). The Benefits Review Board is a five-member
administrative appeals body which determines whether decisions of administrative law judges
are supported by substantial evidence and are in accordance \,rith law. Id. Parties may petition for
review of final orders ofthe Benefits Review Board "in the United States court ofappeals for the
circuit in which the injury occuned, by filing in such court within sixty days following the
issuance ofsuch Board order." Id. $ 921(c).

          In his complaint, Mr. Patillo appears to make references to administrative law judges and
proceedings before the Benefits Review Board. See Compl. at 1. He also makes assertions
regarding numerous lawyers and doctors involved in those proceedings. See id. Mr. Patillo
alleges "unconstitutional unethical conduct" and "enor[s]/mistakes," and appears to claim that
one ofhis previous lawyers was disbaned. Id. at 2. Additionally, he alleges that he received
"payment out of [the] Special Fund by [the] US Labor Department of Seattle WA in 1988-89."
Id. at 3.

        As best the Court can understand, Mr. Patillo seems to be asserting that his disbaned
attomey "did not inform[]" him of interactions between the Department of Labor and a Dr.
Worthington. Id. Mr. Patillo also appears to allege that the Department of Labor's Seattle-based
director made a "decision based on unethical conduct" and that "cut[ting off] all medical service
for Plaintiff in March of 2011 . . . was unconstitutional." Id. Further, Mr. Patillo alleges that two
administrative lawjudges incorrectly determined that they did not have jurisdiction over his
ciaims. Id. at 4. He also asserts that a2016 decision issued by the Benefits Review Board, in
which it also concluded that it lacked jurisdiction, was incorrect and somehow tainted by
improper actions by Mr. Patillo's former attomeys and violated Mr. Patillo's "rights under the
13th [and] 14th [amendments to the] [C]onstitution and due process." Id.

         Mr. Patillo's claims in this case may relate back to an injury he suffered while working
for a private employer in Portland, Oregon, in 1988. See Def.'s Mot. to Dismiss Pro Se Compl.
at 2. Thus, in 1995, an administrative law judge awarded Mr. Patillo permanent total disability
and medical benefrts under the Longshore and Harbor Workers' Compensation Act based on
injuries he incuned when he fell while working in the hold of a ship. Patillo v. Dir." Office of
Workers' Comp. Prosrams, BRB No. 01-0570,2002WL34716075, at *1 (Mar. 21,2002\.



benefits, medical fieatment, vocational rehabilitation and other benefits to certain workers . . .
who experience work-related injury." office of workers' compensation Proerams, United States
Department of Labor, https://www.dol.gov/owcp/owcpabot.htm (last visited Feb . 23,2017). Tlne
Division of Longshore and Harbor Workers' Compensation provides "technical assistance,
dispute resolution services and oversee[s] benefit delivery by the self-insured employers and
insurance carriers." Division of Lonqshore and Harbor workers' comoensation, united states
Department of Labor, https ://www.dol. gov/owcp/dlhwc/ (last visite d F eb. 23, 2017).
Because his employer was uninsured, the Departrnent ofLabor assumed liability for Mr. Patillo's
benefits and made payments out of the Special Fund. Id. (citing 33 U.S.C. $ 918(b).

         In2014, Mr. Patillo submitted an offer to the Director of the Department of Labor's
 Office of Workers' Compensation Programs to settle and close out his entitlement to future
 medical benefits for a lump sum of $2,356,629.60. Patillo v. Houston Shio. Inc., BRB No. 16-
 0203, https://www.dol.gov/brb/decisions/lngshore/unpublished/Sept16/16-0203.htm (Sept. 13,
 2016). He also filed a request for a hearing before an administrative lawjudge. Id. The Director
 declined Mr. Patillo's offer and moved for a summary decision from the administrative law
judge. Id. The administrative law judge granted the motion and dismissed Mr. Patilio's claim,
 finding that he lacked authority to order the Special Fund to agree to a settlement. Id. Mr. Patillo
then filed an appeal with the Benefits Review Board. Id. It affirmed the administrative law
judge's decision on September 13,2016. Id.

                                           DISCUSSION

        In determining whether the Court has subject matter jurisdiction, it accepts as true all
undisputed facts in the pleadings and draws all reasonable inferences in favor of the plaintiff.
Trusted Inteeration" Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 201 l). However, ifa
movant disputes the basis of the Court's jurisdiction, the allegations in the complaint are not
controlling and the Court may review evidence extrinsic to the pleadings. Cedars-Sinai Med. Ctr.
v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).

         It is well-established that complaints that are filed by pro se plaintiffs, like this one, are
held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,
404 U.S. 519, 520 ( 1972). Nonetheless, a 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); see also Revnolds v. Armv & Air Force Exch. Serv.,846F.2d746,748 (Fed,.
 Cir. 1988). Therefore, even pro se plaintiffs must persuade the Court that jurisdictional
requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 499, aff d, 98 F. App,x
 860 (Fed. Cir. 2004); see also Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 2014)
("[T]he leniency afforded to a pro se litigant witi respect to mere formalities does not relieve the
burden to meet jurisdictional requirements." (quotation and citation omitted)).

         The Tucker Act grants the United States Court of Federal Claims the power "to render
judgment 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 implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort." 28 U.S.C. $ 1491(a). It serves as a waiver of sovereign immunity and a jurisdictional
gant, 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 plaintifi therefore, must establish
that "a separate source of substantive law . . . creates the right to money damages.', Id. (quoting
Fisher v. United States,402F.3d 1167,1172 (Fed. Cir. 2005) (en banc in relevant part)); Rick's
Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (stating that a
"plaintiff must look beyond the Tucker Act to identift a substantive source of law that creates
the right to recovery ofmoney damages against the United States" (citation omitted)).
         Here, the Court lacks subject matter jurisdiction over Mr. Patillo's complaint. He fails to
identify any constitutional, statutory, regulatory, or contractual basis for a right to money
damages from the United States. In other words, he fails to plead the existence ofa separate
source of substantive law giving rise to Tucker Act jurisdiction. Neither the Thirteenth nor
Fourteenth Amendments are money-mandating sources of substantive law. Johnson v. United
 States, 79 Fed. Cl. 769, 774 (2007) (Thirteenth Amendment); LeBlanc v. United States, 50 F.3d
 1025,1028 (Fed. Cir. 1995) (Fourteenth Amendment). Moreover, to the extent Mr. Patillo is
asserting claims against individuals, such as the Director who oversees the Special Fund, or the
attomeys and physicians involved in his workers' compensation case, those claims must be
dismissed as the Court has nojurisdiction over claims against any defendant other than the
United States. See United States v. Sherwood,312 U.S. 584, 588 (1941) C'Ulf the relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdiction of the court."); Jiron v. United States, 118 Fed. Cl. 190, 198 99 (2014) ("lt is well
 settled that the United States is the only proper defendant in the United States Court ofFederal
 Claims." (quotation omitted)). Thus, because Mr. Patillo has failed to allege a substantive source
 oflaw creating the right to recovery ofmoney damages from the United States, the Court lacks
 subject matter jurisdiction over his complaint.

        Additionally, it appears that what Mr. Patillo is actually seeking is a review of the
decision ofthe Benefits Review Board. Decisions ofthe Benefits Review Board, however, are
only appealable to the court ofappeals for the circuit in which the underlying work injury
occurred. 33 U.S.C. $ 921(c). The Court ofFederal Claims is not a court of appeals. Therefore,
the Court lacks jurisdiction to review the Board's decision.l

                                          CONCLUSION

       For the reasons discussed above, the govemment's motion to dismiss is GRANTED and
the complaint is DISMISSED without prejudice. The Clerk is directed to enter judgment
accordingly. Each side shall bear its own costs.




I The federal statute authorizing the transfer of a case to cure a want ofjurisdiction, 28 U.S.C.
$ 63 , does
  1   1       not  provide a basis for the Court to transfer Mr. Patillo' s complaint to the
appropriate court ofappeals. That statute requires a court to transfer an action over which it lacks
subject matter jurisdiction to a court in which the action could have been brought at the time it
was originally filed, when doing so is in the interest ofjustice. Id. Mr. Patillo's complaint,
however, could not have been brought in the court of appeals at the time it was filed here.
Petitions for review ofa decision of the Benefits Review Board must be filed in the court of
appeals "within sixty days following the issuance of such Board order." 33 U.S.C. $ 921(c); see
also Felt v. Dir.. Office of Workers' Comp. Programs, 11 F.3d 951,952 (9th Cir. 1993) (holding
that sixty-day time limit of 33 U.S.C. $ 921(c) is a jurisdictional requirement). The Board's
decision issued September 13,2016. See Patillo, BRB No. 16-0203. The sixty-day window
therefore closed November 12,2016. Mr. Patillo's complaint was not filed in the Court o1-
Federal Claims until November 23, 2016. Docket No. 1. It thus could not have been brought in
the court of appeals at that time.
IT IS SO ORDERED.


                       , /u-
                    ELAINE D. KAPLAN
                    Judge
