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                                                                                                No. 14-268 C
                                                                                           Filed: October 8, 2014                       FILED
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                                                                                                                                       OcT   - 8 2014
                                                                                                                                      U.S. COURT OF
TOMMY LEE STEVENS,                                                                                                                   FEDERALCLAIMg

                    Plaintiff,
                                                                                                                       Jurisdiction;
                                                                                                                       Motion to Dismiss, RCFC 12(b)(1);
                                                                                                                       Pro Se.
THE LINITED STATES,

                    Defendant.


********                    r.   *   l. *,1.,t *,t,1. :*   :1.   :l :i *,1 *   * * * * * * * {' * *'1. * * * * :*


Tommy Lee Stevens, Mount Olive, North Carolina, pro                                                                      se.


Witliam J. Grimaldi, United                                                      States Department                  of Justice, Trial Attomey, Washington, D.C.,
Counsel for the Government.


                                                       MEMORANDUM OPINION AI{D FINAL ORDER

BRADEN, -Iadge.

I.                  RELEVANT T'ACTUAL BACKGROUND.I

       On April 7, 2014, Tommy Lee Stevens ("Plaintiff') filed a Complaint in the United
States Court of Federal Claims alleging that the Department of Health and Human Services
(.'HHS') implanted a transceiver in his body, without consent, in November 1994 when he had
surgery for a broken leg and ankle at Wake Medical Hospital in Raleigh, North Carolina.
Compl. Ex. B at                                   l.
                      The Complaint alleges that this implant caused Plaintiff to hear voices,
experience pain, gain weight, lose sleep, and revert to drug habits. Compl. Ex. B aI2, 4, 6.


                     rThe
               facts recited herein were derived from Plaintiffs April 7, 2014 Complaint
("Compl.") and attached exhibits: (1) Certified Mail Receipt for Mailing to the Secretary of the
Department of Health and Human Services Dated January 3, 2014 ("Compl. Ex. A") and
(2) Claim for Damages Against the Department of Health and Human Services Dated January 3,
2014 ("Compl. Ex. B").
II.    PROCEDURAL HISTORY

        The April 7, 2014 Complaint is not the first occasion where Plaintiff alleged injury. In
Stevens v. United States,2009   WL 3650874 (Fed. Cl. Oct. 28,2009) ("Stevens l'), Plaintifffiled
a complaint alleging violations of his constitutional and contractual rights, wrongful infliction of
pain, federal crimes, takings, and a qui tam action on behalf of the Govemment seeking to
recover money fraudulently claimed by others. 1d Each of these claims was dismissed for lack
of subject matter jurisdiction under RCFC 12(bX1). Id. at*4-*5.

        The Federal Circuit affirmed, holding that "[t]here is no evidence that a conhact even
exists," that the Court of Federal Claims cannot provide an opportunity to testify before
Congress, and that there was no "'source of substantive law that can be fairly interpreted as
mandating compensation"' for Plaintiff. Stevens v. United States,367 Fed. App'x 158, 160 (Fed.
Cir. 2010) (per curiam) ("Stevens 1l') (quoting United States v. Mitchell,463 U.S. 206 216-17
(1983).

       In Stevens ///, Plaintiff filed another complaint on an unrelated matter, and the court
dismissed that complaint. See Stevens v. United States, No. 09-623 C,2010 WL 147918, at *1
(Fed. Cl. IanT,2010) ("Stevens III').

        Thereafter, Plaintiff filed a third case in the United States Court of Federal Claims,
invoking 45 C.F.R. $ 46.101(bx2).'? See Stevens v. United Slctes, No. 10-509C, 2011 WL
1883010 (Fed. Cl. May 17,20ll) ("Stevens /Z'). Since that allegation concemed the Basic HHS
Policy for Protection of Human Research Subjects, the court determined that "[n]othing in this
provision can be fairly interpreted as requiring the United States to pay money damages." Id. at
*3. Since Plaintiff did not point to a specific money-mandating source of law, the court did not
have jurisdiction to adjudicate these claims under the Tucker Act. 1d




       '   Section 46.101(b)(2) provides:

       Unless otherwise required by department or agency heads, research activities in
       which the only involvement of human subjects will be in one or more of the
       following categories are exempt from this policy:



       (2)  Research involving the use of educational tests (cognitive, diagnostic,
       aptitude, achievement), survey procedures, interview procedures or observation of
       public behavior, unless:

       (i) lnformation obtained is recorded in such a manner that human subjects can be
       identified, directly through identifiers linked to the subjects; and (ii) any
       disclosure of the human subjects' responses outside the research could reasonably
       place the subjects at risk of criminal or civil liability or be damaging to the
       subjects' fi nancial standing, employability, or reputation.
       The next complaint alleged a violation of 45 C.F.R. $ 46. I 16, establishing informed-
consent requirements for govemment-funded research using human subjects, and an HHS Notice
in the Federal Register to support his claim that he has a right to make contact with his
Congressperson regarding his injury. See Stevens v. United Srales, No. l2-478C,2013 WL
151715, at *3 (Fed. Cl. Jan. 14, 2013) ("Stevens It'). The court dismissed this case, because
neither 45 C.F.R. $ 46.1l6 nor the HHS notice provide a money-mandating source of law. .Id at
*2. In addition, the court determined that Plaintiff failed to demonstrate the existence ofa valid
contract with the Govemment. Id. at *3. The court observed, however, that Plaintiff s demand
for monetary relief for an unconsented medical procedure appeared to be a tort, over which the
United States Court of Federal Claims does not have jurisdiction. 1d

       In the present action, Plaintiffs April 7, 2014 Complaint requests the termination ofthe
research project with HHS and the award of $100 billion, resulting from an alleged breach of
contract, and invokes the Contract Disputes Act of 1978 C'CDA'), 41 U.S.C. $$ 601-13.
Compl. at 4. On April 23,2014, Plaintiff filed an Amendment ("Am."), requesting an additional
$10 million. Am. at 1. On May 30,2014, the Govemment filed a Motion to Dismiss ("Gov't
Mot."), pursuant to Rule l2(b)(l) of the Rules of the Court of Federal Claims ("RCFC"). On
July 14,2014, Plaintiff filed a Response ("P1. Resp."). On July 29,2014,the Govemment filed a
Reply ("Gov't Reply").

III.   DISCUSSION.

       A.      Jurisdiction.

         The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. $ 1491, 'to render judgment upon any 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. $ 1491(a)(l). The Tucker Act, however, is "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).

        Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify
and plead an independent contractual relationship, Constitutional provision, lederal statule,
and/or executive agency regulation that provides a substantive right to money damages. See
Todd v. United Srates,386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker
Act requires the litigant to identifl a substantive right for money damages against the United
States separate from the Tucker Act . . . ."); see also Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act . . . does not create a substantive cause of
action; . . . a plaintiff must identifu a separate source of substantive law that creates the right to
money damages. . . . [T]hat source must be 'money-mandating."'). Specifically, a plaintiff must
demonstrate that the source of substantive law upon which he relies "can fairly be interpreted as
mandating compensation by the Federal Government." United States v. Mitchell,463 U.S. 206,
216 (1983) (quoting Testan,424 U.S. at 400). And, the plaintiff bears the burden ofestablishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
 846F.2d746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jwisdiction [is] put
in question . . . . [the plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").

       B.      Standard of Review for a Motion to Dismiss Pursuant to RCFC            l2(bxl).
        A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law .          is properly raised by a [Rule] 12(bX1) motion."
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(bX1)
(allowing a party to assert, by motion, "lack of subject-matter jurisdiction"). When considering
whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to
assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences
in plaintifFs favor." Henke v. United Stdtes,60F.3d795,797 (Fed. Cir. 1995).

        C,     The Court's Resolution.

        The court does not have subject matter jurisdiction over this case for three reasons:
(1) the claim has no basis on a money-mandating provision of law; (2) the claim is a tort claim;
and (3) the claim exceeds the statute of limitations.

       First, the Apt',l 7,2014 Complaint alleges a breach of contract, but does not allege facts
in support, i.e., "mutual intent to contract[,] including an offer and acceptance, consideration, and
a Govemment representative who had actual authority to bind the Government." Massie v.
United States,166 F.3d I 184, 1188 (Fed Cir. 1999). A plaintiff "must proffer objective evidence
demonstrating the existence of an offer and a reciprocal acceptance." Am. Fed. Bank, FSB v.
United States,62 Fed. Cl. 185, 194 (2004).

         Second, for the various harms alleged, Plaintiff seeks remedial damages, which are the
hallmark of tort. See United States v. Burke,504 U.S. 229,235 (1992) (citing R. HEUsroN,
 SALMoND oN rHE LAw oF ToRrs 9 (12th ed. 1957) ("'[A]n action for damages' is 'an essential
 characteristic of every true tort"'). The Tucker Act prohibits the court from exercising
jurisdiction over claims "sounding in tort." 28 U.S.C. $ 1a9l(a)(1). Therefore, the court has no
jurisdiction over PlaintifFs claims for personal injuries.

        Third, the Complaint is not timely, because it was filed more than "six years after such
claim first accrue[d]." 28 U.S.C. $ 2501. "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,
1.e., when 'all events have occurred to fix the Government's alleged liability, entitling the
claimant to demand payment and sue here for his money."' Martinez v. United States, 333 F.3d
1295,1303 (Fed Cir. 2003) (quoting Naver Elec. Co. v. United States,368 F.2d 847, 851 (Ct. Cl.
1996)). The cause of action alleged was the implantation of the transmitting device that gave
rise to Plaintiff s alleged injuries. Compl. Ex. B at2,4,6. For the cause of action to be timely,
however, the implantation must have occurred after April 7,2008 to be within the six-year limit
of the statute of limitations. Plaintiff allegedly received the transmitting device twenty ye sago
in November 1994. Thus, the statute of limitations of the Tucker Act bars Plaintiff s claim.
IV.    CONCLUSION.

       For these realnns, the Government's lvlay 30, 2014 Motion to Dismiss is granted, .See
RCFC l2(bxl). Accordingly, the Clerk is directed to dismiss the AWil7,2014 Complaint and
the April 23,2014 Amendment.



       ITISSOORDERED.
