Perry v. United States

ORIGINAT
lJrtbt @nitr! 9rtates @ourt of feUprst tlaimg
No. l4-587C
(Filed: December 23, 2014)
FILED
Dtc 2 3 2014

NOT FORPUBLICATION U.S. COURT OF
FEDERAL CLAIMS

KEVIN L. PERRY,

Plaintiff,

THE LINITED STATES,

Defendant.

Kevin L. Perrv, El Centro, CA, pro se.

Russell J. Upton, Trial Attomey, with whom were Stuart F. Delerv, Assistant Attorney
General, Robert E. Kirschman. Jr., Director, and Martin F. Hockey, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, DC, for defendant. Captain Christopher J. Koschnitzky, Litigation
Attomey, United States Army Legal Services Agency, Fort Belvoir, VA, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

Pending before the court is defendant's motion to dismiss the pro se complaint in
the above-captioned case for lack ofjurisdiction pursuant to Rule 12(bX1) of the Rules of
the Court of Federal Claims ("RCFC"). Def.'s Mot. to Dismiss (Def.'s Mot.), Sept. 3,
2014, Dkt. No. 6. Plaintiff filed his complaint in this court on July 10, 2014, alleging that
"human experimentation" conducted by various medical professionals, including military
doctors while he was enlisted in the United States Army, effected a taking of his body by
the govemment in violation of the Fifth Amendment. Compl. at 39-45, Dkt. No. l.
Specifically, plaintiff contends he has a property interest in his body, the "fraudulent
conversion" of which constituted an "inverse condemnation" and for which he is entitled
to compensation inthe amount of $120million. Id.at45,5l. Plaintiffs other requests
for reliefarise from the separation status he was granted upon his discharge from the
military. Id. at 52.

As explained further below, the court finds that plaintiff s complaint contains no
claims over which this court possesses jurisdiction. Defendant's motion to dismiss is
GRANTED, and plaintiffs complaint is DISMISSED in its entirety.

In addition, the court notes that the instant complaint contains the same or
substantially similar claims and requests for relief as have the numerous other complaints
plaintiff filed previously in this court and in various federal district courts. All of
plaintiff s prior filed claims have been met without success. Plaintiffs claims in the
instant suit likewise cannot stand. Given the repetitive and vexatious nature of the
allegations brought by plaintiff, and as further discussed at the conclusion of this opinion,
any attempts by plaintiffto make additional filings, unless directed to do so by the court,
must be accompanied by a motion for leave to file.

I. Background

Plaintiffis subject to the pre-filing terms ofan injunctive order entered by the
United States District Court for the Southem District of Califomia in Perrv v. Veolia
Transport (Veolia Transport), No. 11-CV-176-LAB-RBB, 2011 WL 4566449 (S.D. Cal.
Sept. 30, 201l). Based on a substantial record of frivolous filings in both federal and
state courts, the Southem District of California found plaintiff to be a vexatious litigant
and enjoined him from "filing any new civil actions in this or any other federal court of
the United States without fust obtaining leave of that court." Id. at * L

In addition to the litigation history identified in Veolia Transport, plaintiffhas
been an active litigant in this court. Since 2012, plaintiff has brought two other actions in
this court, the first of which was dismissed for lack ofjurisdiction, see Order, Perr.v v.
United States, No. 12-425 (Fed. Cl. Dec.26,2012),Dkt. No. 9, aff d, 524 Fed. App'x
680 (Fed. Cir. 2013) (unpublished), reh'g denied (Fed. Cir. June 5,2013), and the second
of which was dismissed for failure to comply with the pre-filing terms to which he is
subject, and in the alternative, for lack ofjurisdiction, see Order Granting Def.'s Mot. to
Dismiss, Perr.v v. United States, No. 12-525 (Fed. Cl. June 4,2013), Dkt. No. 12,aff d,
548 Fed. App'x 614 (Fed. Cir. 2013) (affirming dismissal on the first ground). See also
Order, Perr-y v. United States, No. l2-425 (Fed. Cl. Nov. 14,2013), Dkt. No.21, aff d,
558 Fed. App'x 1004, 1008 (Fed. Cir. 2014) (unpublished) ("This court agrees with the
Court of Federal Claims that Mr. Perry's present motions 'are yet additional instances by
plaintiff of his filing frivolous claims."').

In the instant complaint, plaintiff alleges that "the overprescribing and off-label
use ofprescription drugs" for treatment of a skin condition on his scalp by various
medical professionals, including military doctors while he was enlisted in the United
States Army between 1990 and 1994, constituted "human experimentation." Compl. at 8,
10-11,4547. Plaintiff claims that the alleged "human experimentation" constituted
"fraudulent conversion," or a "taking," of his "human body," an activity of which he did
not become aware until August of 1998. Id. at 11,45,47. Plaintiff requests $120 million
as "just compensation" for such taking. Id. at 51 !f l. Based on the alleged "human
experimentation," plaintiff also requests various forms of non-monetary relief which
appear to arise from his dissatisfaction with the status of his separation from the military.
Plaintiff asks the court to order the correction of his military records to reflect a "100-
percent medical discharge," to commission "expert advisory opinions" regarding hrs
"fitness" for active duty, and to instruct the Board of Veterans Appeals to reconsider his
earlier unsuccessful challenges to the amount of his VA benefits, in accordance with the
Privacy Act of 1974,5 U.S.C. $ 552(d)(3). ld. at 52 'l]!J 2-5. Plaintiff also asks for a
declaration that all his alleged injuries were "'combat[-]related and service[-]connected'
incun[ed] in the line of duty." Id. at 52 fl 6.

Defendant filed a motion to dismiss plaintiffs complaint for lack ofjurisdiction on
September 3,2014. Def.'s Mot. Plaintiff filed his opposition to defendant's motion on
September 17,2014, Pl.'s Resp., Dkt. No. 7, and defendant filed its reply on September
30,2014, Def.'s Reply, Dkt. No. 8. Thereafter, plaintiff sought to make two additional
filings. Finding the submissions to be improper, the court directed the Clerk's Office to
retum them to plaintiff unfiled. See Order, Nov. 19,2014, Dkt. No. 9.

II. Legal Standards

The jurisdiction of the United States Court of Federal Claims is a threshold matter
for consideration. See PODS. Inc. v. Porta Stor. Inc.,484 F.3d 1359, 1365 (Fed. Cir.
2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998)). A filed
claim must be dismissed if the court lacks jurisdiction to hear it. See RCFC 12(hX3);
Arbaueh v. Y&H Com., 546 U.S. 500, 514 (2006).

The ability of this court to entertain suits against the United States is both
established and limited by the Tucker Act. See 28 U.S.C. $ 1491 (2012). While the
Tucker Act provides jurisdiction over "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. $ la9l(a)(1),
the Act itself does not create a substantive right to monetary relief from this court, United
States v. Testan, 424 U.S. 392, 398 ( 1976). Rather, "[a] substantive right must be found
in some other source of law." United States v. Mitchell,463 U.S. 206,216 (1983). Thus,
to invoke the court's jurisdiction over a claim, a plaintiff must "identifu a substantive
right for money damages against the United States separate from the Tucker Act itself,"
Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004), such as "some money-
mandating constitutional provision, statute or regulation that has been violated, or an
express or implied contract with the United States," Loveladies Harbor. Inc. v. United
srates,27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc). See also Jan's Helicopter Serv..
Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1307 (Fed. Cir. 2008) (noting that under the
Tucker Act, a "money-mandating" claim "exists if the statute, regulation, or
constitutional provision that is the basis for the complaint 'can fairly be interpreted as
mandating compensation by the Federal Government"' (quoting Mitchell, 463 U.S. at
216-17)).

This court's jurisdiction is further limited by a six-year statute of limitations,
which is jurisdictional and cannot be equitably tolled. John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 134 (2008). The statute of limitations provides that claims
over which the Court of Federal Claims would otherwise have jurisdiction "shall be
barred unless the petition thereon is filed within six years after such claim first accrues."
28 U.S.C. $ 2501 (2012). A claim accrues under the Tucker Act "when 'all events have
occurred to fix the Govemment'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) (en banc) (quoting Naser Elec. Co. v. United States, 368 F.2d 847, 851
( 1e66)).

When considering a motion to dismiss for lack ofjurisdiction, the court must take
"the allegations stated in the complaint . . . as true and jurisdiction is decided on the face
of the pleadings." Folden v. United Srates,379 F.3d 1344, 1354 (Fed. Cir. 2004)
(quoting Shearin v. United States, 992 F.2d I I 95, I 195-96 (Fed. Cir. 1993)). Plaintiff
bears the burden of establishing jurisdiction by preponderant evidence. Taylor v. United
States, 303 F.3d 1357, 1359 (Fed. Cir.2002) (citing Thomson v. Gaskill,315 U.S. 442,
446 (1942)). While complaints filed by pro se plaintiffs are held to "less stringent
standards than formal pleadings drafted by lawyers," Haines v. Kerner,404 U.S. 519, 520
(1972), pro se plaintiffs nonetheless must meet the jurisdictional requirements, Bemard v.
United States, 59 Fed. Cl. 497,499 (2004),affd,98 F. App'x 860 (2004).

III. Discussion

As explained in further detail below, the court finds that plaintiff s complaint
contains no claims over which this court has iurisdiction.

A. Plaintiff s Monetary Claim Fails for Want of Jurisdiction

Plaintiff contends he has a "property interest" in his body, the alleged "fraudulent
conversion" of which constituted an "inverse condemnation" in violation of the Fifth
Amendment. Although plaintiff styles this claim of alleged "human experimentation" as
a taking, his claim sounds in tort. See. e.g., Gable v. United States, 106 Fed. Cl.294,
297 -98 (2012) (finding no jurisdiction to adjudicate claims of medical malpractice and
"unauthorized medical treatment" because they sound in tort). As the Tucker Act
expressly prohibits this court from entertaining cases sounding in tort, see 28 U.S.C. $
la91(a)(1), plaintiff s claim fails for want ofjurisdiction.

Moreover, plaintiff states he did not become aware of the alleged "human
experimentation" until August of 1998. Id. at 47. Thus, by his own admission, plaintiff s
takings claim accrued over fifteen years ago and falls well outside this court's six-year
statute of limitations. See 28 U.S.C. $ 2501.

B. Plaintiff s Non-Monetary Claims Also Fail

Plaintiff seeks certain equitable and declaratory reliefrelated to his military
records, discharge status, and the status of his injuries. See Compl. at 5212 (seeking an
order directing the Secretary of the Army to change his military records to reflect a "100-
percent medical discharge" instead ofhonorable discharge); id. fl 3 (seeking an order
directing "expert advisory opinions" regarding plaintiff s "fitness" for active duty during
time of his enlistment); id. tl 6 (seeking a declaration that all of plaintiff s injuries were
"combat[-]related and service[-]connected incunIed] in the line of duty").

However, plaintiff s discharge from the military concededly occurred in 1994,
Compl. at 46, and thus all ofthese claims fall outside ofthe court's six-year statute of
limitations, see 28 U.S.C. $ 2501.

Moreover, pursuant to the Remand Act, any equitable relief ordered by the court
must be "incident of and collateral to" a money damages award. 28 U.S.C. $ la9l@)(2).
Here, plaintiff s request for equitable relief cannot survive when there is no likelihood of
a money judgment to which that relief could be "incident of and collateral to."
Accordingly, because plaintiff s monetary claim fails for want ofjurisdiction, plaintiff s
requests for equitable relief also fail for want ofjurisdiction.

Plaintiff further seeks equitable reliefrelated to his VA benefits and decisions of
the Board of Veterans Appeals. Specifically, plaintiff asks this court to direct the Board
of Veterans Appeals to reconsider its prior decisions regarding his VA benefits, in light
of the "human experimentation" alleged in the instant complaint, and in accordance with
thePrivacy Actof 1974,5 U.S.C. $ 552(dX3). SeeCompl. at52fl{14-5.

Plaintiff once again seeks to challenge the determination ofhis VA benefits.
Plaintiff essentially sought the same relief in the first action he brought in this court; that
action was dismissed for lack ofjurisdiction and affirmed by the Federal Circuit. This
court and the Federal Circuit have informed plaintiff, on numerous occasions, that the
limited jurisdiction of this court expressly precludes the court's ability to hear these types
of claims. See Perry, 524Fed. App'x at 682; Perr.v, 558 Fed. App'x at 1007. The
Federal Circuit also has made clear to plaintiff that the scope of its own jurisdiction to
review VA benefit determinations is limited. See Perrv, 524 Fed. App'x at 681-82.
 C. Transfer is Not Within the Interests of Justice

When this court determines that it lacks jurisdiction, it must transfer the case to a
court where the action could have been brought if the transfer "is in the interest of
justice." 28 U.S.C, $ 1631 (2012); see also Tex. Peanut Farmers v. United States,409
F.3d 1370, 1374-75 (Fed. Cir. 2005) (stating that the Court ofFederal Claims should
consider whether transfer is appropriate once the court has determined that it lacks
jurisdiction).

"The phrase 'if it is in the interest ofjustice' relates to claims which are
nonfrivolous and as such should be decided on the merits." Gallowav Farms. Inc. v.
United States, 834 F.2d 998, 1000 (Fed. Cir. 1987); id. (stating that "[f]rivolous claims
include 'spurious and specious arguments"' (quoting Devices for Med.. Inc. v. Boehl,
822F.2d 1062, 1068(Fed.Cir. 1987)). "Adecisiontotransferrestswithinthesound
discretion of the transferor court, and the court may decline to transfer the case '[i]fsuch
transfer would nevertheless be futile given the weakness of plaintiff s case on the
merits."'Spencerv.UnitedStates,98Fed.CL.349,359(2011)(quotingFaulknerv.
United States, 43 Fed. Cl. 54, 56 (1999).

Plaintiff has already filed suits in the Southem and Central Districts of Califomia,
asserting the same or substantially similar claims based on the alleged "human
experimentation" that he now brings in this court. Compl. at 47,49; see also Pl.'s Exs.
79*80. Plaintiff first advanced his "human experimentation" claim over fifteen years
ago, in May 1999, in the Southern District of California, see Pl.'s Ex. 79, and again, in
August 2002, in the Central District of Califomia, see Pl.'s Ex. 80. Both actions were
dismissed for failure to prosecute. See Order of Dismissal, Perry v. Bristol M-yer Squib,
No. 99-CV-1099-IEG(JAH) (S.D. Cal. Ocl.25,1999), Dkt. No. 7; Order of Dismissal,
Perry v. United States, No. CV 02-6039-DDP-VBKx (C.D. Cal. June 12,2003), Dkt. No.
21 . The court note s that the complaint filed by plaintiff in the Central District of
Califomia in 2002 contains essentially the same or substantially similar takings claim as
that which plaintiff has asserted in the instant complaint. See Pl.'s Ex. 80 at 1 13-19
(alleging a "Taking (Fraudulent Conversion) or Damaging of Property (Human Body)
For Public Use (Human Experimentation For Safety and Effectiveness of Prescription
Drugs'').

Moreover, as previously discussed, plaintiff did not become aware of the alleged
"human experimentation" until August of 1998. Compl. at 47. Not only has plaintiff
waited nearly fifteen years to reassert claims based on the alleged "human
experimentation" in this court, his claims are based on events too far back in time to be
within any conceivable limitations period in any court.

"Finally, it would be remiss of this court to ignore the Southem District of
Califomia's pre-filing injunction." Peny, 558 F. App'x at 1008 (citing Veolia Transport,
201 I WL 4566449, at * l1). Based on his "numerous and meritless state and federal
court actions," Veolia Transport, 201 I WL 4566449, at * 10, plaintiff has been deemed a
vexatious litigant by the Southem District of Califomia, id. at * I . See also id. at * l0
(noting plaintiffs history ofbringing at least eight other unsuccessful suits in state and
federal court since 1998, almost all of which were dismissed with prejudice or for failure
to prosecute or comply with court orders).

The prior filings made by plaintiff-similarly founded on allegations of "human
experimentation" as he has asserted here-as well as plaintiff s noted history of frivolous
filings and the untimeliness of his claims, counsel resoundingly against the transfer of
plaintiff s case. Given the apparent futility oftransfer to another federal court, the court
declines to transfer this action.

IV. Conclusion

For the foregoing reasons, the court finds that plaintiff s complaint contains no
claims over which this court has jurisdiction. Defendant's motion to dismiss is
GRANTED, and plaintiff s complaint is DISMISSED in its entirety. Moreover, the
court does not find that a transfer of this case would serve the interests ofjustice.

Plaintiffls instant complaint rehashes the same or similar factual and legal
contentions that gave rise to the complaints that plaintiff previously filed in this court and
in federal district courts nearly fifteen years ago. These claims were unsuccessful.
Undeterred, plaintiff persists with the instant claim. Because the court finds that the
plaintiffs latest filings are "yet additional instances by plaintiff of his hling frivolous
claims," Perry, 558 Fed. App'x at 1008, and do not raise new claims as required by the
pre-filing terms of Veolia Transport to which he is subject, the court ORDERS the
following:

Plaintiffis immediately enjoined from filing any new complaint in this court
without first obtaining leave to do so, In seeking leave to file, plaintiff must certify
and explain how his complaint raises new matters properly before the court'

The Clerk ofCourt shall reject all future complaints from plaintifi unless filed by
leave of the court.

IT IS SO ORDERED.

ATRICIA E. CAMPBEL
ChiefJudge