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                                       No. 14-105C
                                                                            FILED
                                 (Filed: August 13, 2014)
                                                                          AUG   13   2014

                                                                         U,S, COURT OF
                                                                        FEDERALCI.AI['S
RONALD EDWARD PIERCE"

                    Pro Se Plaintiff,
                                                 Motion to dismiss, Rule l2(b)(1) (lack
                                                 of subject jurisdiction); State law
                                                 claims; Americans with Disabilities
THE UNITED STATES,                               Act,42 U.S.C. $$ 12101, 12131,
                                                 12132 ; Administrative Procedure Act,
                    Defendant.                   42 U.S.C. $$ 701, 702.




       Ronald Edward Pierce, Squaw Valley, CA, p4-q9 plaintiff.

      Michael D. Snyder, Civil Division, United States Department of Justice,
Washington, DC, with whom were Stuart F. Delery, Assislant Attomey General, and
Robert E. Kirschman, -Ir., Director, Commercial Litigation Branch, for defendant.

                       OPINION DISMISSING COMPLAINT

FIRESTONE, -/r;dge.

       Pending before this court is defendant the United States' ("the government")

motion to dismiss the complaint in the above-captioned action for lack of subject matter

jurisdiction pursuant to Rule 12(bXl) of the Rules of the United States Court ofFederal

Claims ("RCFC"), Docket No. 14, filed June 5, 2014. In the complaint,       p1q_g9   plaintiff

Ronald Edward Pierce ("Mr. Pierce" or   "plaintiff')   alleges that the United States Tax

Court ("tax court") failed to accommodate his disabilities when it refused to change the
location and timing of a trial scheduled in a tax case he had filed in Califomia. Mr.

Pierce also alleges that the United States District Court for the Eastem District     of

Califomia failed to accommodate his disabilities when it refused to intervene on his

behalfbefore the tax court. Mr. Pierce charses that the tax court and the United States

District Court for the Eastern District of Califomia are liable to him for damases under

the state law by failing to accommodate his disabilities. Specifically, Mr. Pierce claims

that he is entitled to damages under the California Unruh Civil Rights Act ("Unruh Act").

Cal. Civ. Code $ 51.

       According to Mr. Pierce, damages under California law are available against

entities that violate the Americans with Disabilities Act of 1990 C'ADA'), 42 U.S.C.       $


12101 etseq. Mr. Pierce claims that this court has jurisdiction to hear his case because

the above-referenced federal courts violated his rights under the      ADA. He also   argues

that this court has jurisdiction to hear his case and award him damages under the

Administrative Procedure Act ("APA"), 5 U.S.C. $ 702.

       The govemment argues that this court must dismiss Mr. Pierce's case on the

grounds that this court does not have jurisdiction to award damages under the Unruh Act,

the ADA, or the   APA. For the reasons explained below, this court GRANTS            the

govemment's motion to dismiss.

I.     FACTUALBACKGROUND

       The complaint includes the following allegations. On February 21,2012, plaintiff

filed a suit in the tax court challenging   a   tax deficiency with the Internal Revenue

Service. After receiving a second notice of deficiency, plaintiff filed a second suit, and
selected Fresno, Califomia as his preferred place for    trial. Plaintiff    alleges that, because

he is disabled, he could not travel to San Francisco, Califomia for a        trial. However, as

plaintiffhad elected to bring his case as a regular tax case rather than       as a small tax oase,

and because only small tax cases are heard in Fresno, the trial was scheduled to be heard

in   San Francisco.

         After receiving notice of the trial, Mr. Pierce filed   a   motion to change the place    of
trial to Fresno. When this motion was denied due to plaintiff          s case's classification,

plaintiff contacted the tax court's Equal Employment Opportunity Commission officer,

who instructed him to refile his motion. Thereafter, the motion was granted and the trial

was re-scheduled for February 3,2014 in Fresno. The case was also reclassified as a

small tax case.

        After the trial was rescheduled, Mr. Pierce sought       a continuance of his case,

arguing that a continuance was necessary to accommodate his disability and in order for

him to deal with the additional cases he had pending in the tax court. Plaintiffs request

was made infbrmally to various employees of the tax court. When his request was not

granted, he sought help from the United States District Court for the Eastem District             of
Califomia, and then from the United States District Court for the Central District of

califomia. After those efforts failed, Mr. Pierce filed a request for judicial notice with

the tax court requesting that the court acknowledge its alleged lack of accommodation.

After the tax court entered an order requiring plaintiffto appear at the scheduled date and

time for trial, plaintiff filed a "Swom Affidavit of Prejudice" alleging that the judge to

whom the case was assigned was not impartial. The tax court then entered an order again
 requiring plaintiffto appear, stating that failure to appear could result in dismissal of the

 case. On February 6,2014, plaintiff filed his complaint in this court.

  II.   STANDARD OF REVIEW

        The United States Court of Federal Claims is a court of limited jurisdiction.

 Under the Tucker Act, the United States Court of Federal Claims has jurisdiction to hear

 claims against the united states that are "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 rn

cases not sounding     in tort." 28   u.s.c.   g la9l(a) (2011). where the court has not been

granted jurisdiction to hear a claim, the case must be dismissed. See Arbaugh v.          y&H
Corp., 546 U.S. 500, 514 (2006). Subject matter jurisdiction may not be waived or

forfeited; when a court concludes that it lacks jurisdiction, the complaint must be

dismissed in its entirety. Spg John R. Sand & Gravel co. v. United States,457 F.3d

1345,1354 (Fed. Cir. 2006).

        The plaintiff bears the burden of establishing subject matter jurisdiction, Alder

Terrace. Inc. v. United stares,   l6l   F.3d 1372, 1377 (Fed.   cir. l99g) (citing McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, lg9 (1936), and must do so by a

preponderance of evidence, Reynolds v. Army & Air Force Exchanee service                g46 F .2d
                                                                                    ,
746,748 (Fed.   cir. 1988). when ruling on a motion to dismiss for       lack ofjurisdiction,

the court considers uncontested facts alleged in the complaint to be ftue and correct.

Reynolds, 846   F   .2d at 7 47 . The court may also consider materials outside of the

pleadings to determine whether it has subject matter jurisdiction over a claim.
                                                                                Aviation
 Software. Inc. v. United States, 101 Fed. C\.656,661 (2011) (citing Rocovich v. United

 States,933 F.2d991,993 (Fed. Cir. 1991)).

         The court holds plq_Se "pleading[s] 'to less stringent standards than formal

 pleadings drafted by lawyers." Johnson v. United States, 4l I Fed. Appx. 303, 305 (Fed.

 Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519,520 (1972)). Nonetheless, a pre_le

 plaintiff must still satisf the court's jurisdictional requirements. Bernard v. united

 States, 59 Fed.   Cl. 497,499 (200a) ("This latitude, however, does not relieve a plq_qg

plaintiff from meeting jurisdictional requirements."), aff d, 98 Fed. Appx. 860 (Fed. cir.

2004).

III.     DISCUSSION

         In his complaint, plaintiff alleges that the tax court and United States District

court for the Eastern District of califomia failed to accommodate his disability        as

required by the ADA, and thus these courts owe him damages under califomia law. In

support of his complaint, Mr. Pierce cites Munson v. Del raco. Inc.       ,46 cal.4th   661 (cal.

2009). Apparently, under california state law, an individual who has an ADA claim may

also obtain damages under the Unruh      Act. Id. Mr. pierce    argues that he is also entitled

to relief in this court under the APA, which according to Mr. pierce, gives this court

jurisdiction to review the decisions of other federal couns.

         ln its motion to dismiss, the govemment argues that this court lacks jurisdiction

over Mr. Pierce's state-law damage claims and over his claims based on the         ApA.      This

court has reviewed all of the pleadings and briefs filed by the parties and finds for the

reasons that follow that this court lacks subject matter   jurisdiction. First, this court lacks
jurisdiction over actions arising under the Unruh Act because "'[c]laims founded on state

law are also outside the scope of the limited jurisdiction of the Court of Federal Claims."'

Waltnerv.UnitedStat€s,98Fed. C1.737,764(Fed.Cl.2011), af?d,679 F.3d 1329(Fed.

Cir.2012) (citing Souders v. South Carolina Pub. Serv. Auth. ,497 F.3d 1303, 1307 (Fed.

Cir. 2007)). Second, to the extent Mr. Pierce is claiming         a   right to damages stemming

from violations of the federal ADA, his complaint also must be dismissed because the

ADA does not apply to the federal govemment, and thus this court lacks subject matter

jurisdiction over an ADA claim. Allen v. United States,546F. App'x.949,951 (Fed.

Cir. 2013) (citing Searles v. United States, 88 Fed. Cl. 801, 805 (2009)). The ADA

provides that "no qualified individual with a disability shall by reason ofsuch disability,

be excluded from participation . . . services, programs, or activities of a public entity or

be subjected to discrimination by any such      entity." 42 U.S.C. $ 12132. A,,public entity,,

is defined as   "(A) any   State, or local government; (B) any department, agency, special

purpose district, or other instrumentality of a   State... or local government        ...."   42

u.s.c. $ 12131(l).     The ADA is not applicable to the tax court, the united states District

court for the Eastern District of califomia, or any other federal government entity

because the   ADA definition of "public entity" includes only state and local govemment

entities. Gray v. United States, 69 Fed. cl. 95, 101 n.5 (2005); United states v. wishart,

146 F.   App'x.   171 (9th   cir. 2005). In such circumstances,       there has not been a waiver   of
sovereign immunity for claims against the United states under the ADA and the case

must be dismissed. Gray, 69 Fed. Cl. at 102.
          Finally, this court does not have jurisdiction to hear plaintiff     s case under the   APA.

    Contrary to plaintiff s contentions, the APA does not provide for review of the actions             of
    other federal courts. By its plain language, the APA provides only for review of "agency

    action," which does not include decisions of the tax court or federal iudiciarv.t 5 u.s.c.

    5 702.

    IV.      CONCLUSION

             For the foregoing reasons, the govemment's motion to dismiss for lack of subject

 matter jurisdiction under RCFC           l2(bXl) is GRANTED.2 The clerk is directed to enrer
judgment accordingly.

             IT IS SO ORDERED.




' The APA reads, in relevant part:
             (b) For the purpose of this chapter--
                     (l) "agency" means each authority of the Govemment of the United States,
                     whether or not it is within or subject to review by another agency, but does not
                    include-

                            (B) the courts of the United Stares . . .   .
5 U.S.C. $ 701.

2
  In addition, plaintiffhas filed an application to proceed in forma pauperis and a motion for
sanctions.        court hereby GRANTS the in forma pauperis appli"ation fo. the purpose of
            _This
resolving this motion. While the motion for sanctiooidols specify the conduct alleged
                                                               not                             to
have violated plaintiffs rights, an order from the tax court dismissing plaintilps
                                                                                   case foi iack of
prosecution is attached to the motion. Because this court does not hivl
                                                                         lurisdiction over
plaintifPs case, the motion for sanctions must be DENIED as well.
