Kemper v. United States, 17-2033C

• Decision Date: 04 May 2018
• Docket Number: No. 17-2033C,17-2033C
• Parties: KEVIN KEMPER, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

KEVIN KEMPER, Plaintiff,
v.
UNITED STATES, Defendant.

No. 17-2033C

United States Court of Federal Claims

May 4, 2018

ORIGINAL

Pro Se Plaintiff; In Forma Pauperis; Motion to Dismiss; Subject Matter Jurisdiction; Breach of Contract Claim; Tort Claim.

Kevin Kemper, pro se, Phoenix, AZ.

Richard Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC for defendant. With him were Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Chad A. Readier, Acting Assistant Attorney General.

OPINION

HORN, J.

On December 22, 2017, pro se plaintiff Kevin Kemper filed a complaint with this court in the above-captioned case. Plaintiff separately filed an Application to Proceed In Forma Pauperis that same day. In a sometimes confused complaint, plaintiff appears to be alleging that an office within the United States Department of Veterans Affairs (VA)¹ acted fraudulently when it allegedly stated on its website that it "wold talk to prospective employers and get interviews for the net[²]," but then "claimed that they did none of the services included on their web site." Plaintiff concludes in his complaint: "[That is fraudulent.]" Plaintiff also appears to be alleging in his complaint that the "Department of voc Rehab" breached an agreement to find paid volunteer work for plaintiff. Plaintiff states in his complaint:

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The Department of voc Rehab would get the Plaintiff a volunteer job which the VA would pay for. The department of voc Rehab did neither—they found no volunteer job for the Plaintiff and did not coordinate 3 months payment for the Plaintiff.

Plaintiff further states in his complaint that he "seeks general damages of $1900, the total of three months of volunteering that the Plaintiff was available for and he seeks Punitive damages in the amount of $10,000."

FINDINGS OF FACT

According to plaintiff, the "Veteran's Administration has a department of Vocational Rehabilitation which is supposed to help veterans get counseling when sought and a job also, when sought." Plaintiff alleges that he is "slightly handicapped and has few documents available to give prospective employers which cause his employment applications to be ignored." He then states that he "examined the VA's web site and reviewed the offerings for veterans," and that "[o]ne of the offerings was to work with the vet and help him or her get employment."

Plaintiff also states in his complaint that he attended a one-time meeting with "Mr. Arnett," a "counselor" at the VA, and then told Mr. Arnett that he "wanted help finding retail stores that would interview him per the department's web site." Plaintiff alleges that:

The counselor [Mr. Arnett] said he knew nothing of this web site and his Voc Ed office did not talk to anyone in the business world. Their only service was to contact federal or state offices to see who could use a volunteer for full time employment for three months duration.

Mr. Arnett also allegedly stated in the meeting, according to plaintiff's complaint, that "the VA would pay the candidates salary," and that "he would have a contract drawn up and the Plaintiff's volunteering was to begin as soon as the contract was signed and the counselor, Mr. Arnett himself, found an office that would take the Plaintiff as a volunteer." In response to Mr. Arnett's description of the alleged VA service, plaintiff states in his complaint that he "was aghast as this was the very last thing he desired--it was --from Mr. Arnett's perspective--This approach to earning money or none."

"Within a week" of his meeting with Mr. Arnett, plaintiff contends in his complaint that Mr. Arnett referred plaintiff to a "contractor" which "could use a volunteer to stand all day and load food containers into bags for the hungry." Plaintiff, however, "declined this position," because, upon visiting the "contractor," he "found it a place of 100% chaos." Then, a "few weeks later," plaintiff states in his complaint that "on his own accord," he found a "tutoring need at the department of Social Services" and unsuccessfully attempted to fill out an electronic application for the "tutoring need." Plaintiff states in his complaint, that "[t]wo weeks later, Mr. Arnett either called or wrote to the Plaintiff and indicated the Plaintiff was thereby [sic] removed from the volunteer program." Plaintiff

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then alleges for the first time in his complaint that he had entered into a "written agreement" with the "Department of Voc Rehab" and Mr. Arnett. Plaintiff specifically states that, "[t]he counselor, Mr. Arnett never did contact any state or federal office seeking a volunteer position for the Plaintiff, per the written agreement the Plaintiff had with the department ["Department of Voc Rehab"] and the counselor, Mr. Arnett."

On January 30, 2018, roughly a month after plaintiff's complaint was filed in this court, plaintiff filed a four-page document titled "APPELLANT'S BRIEF UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 17-15523 & cv-17-00375 PHX GMS KEVIN KEMPER, Appellant." Displayed on the third to last page of this document is the date December 11, 2017. No motion or explanation was included with plaintiff's filing of this four-page document. The document was not filed in compliance with the Rules of the United States Court of Federal Claims Rules (RCFC), including, significantly, missing proof of service on the defendant, as required by RCFC 5.3 (2017). Nonetheless, on February 6, 2018, as a courtesy to the pro se plaintiff, the undersigned ordered that plaintiff's four-page document be filed in the above-captioned case, which provided with access to the defendant.

The first page of the February 6, 2018 document appears to be a cover page, which is labeled at the top of the page as "APPELLANT'S BRIEF." The cover page contains information regarding an apparent appeal by plaintiff to the United States Court of Appeals for Veterans Claims, although no case number for the appeal is listed anywhere in the document. Notably, a search of the electronic filing system for the United States Court of Appeals for Veterans Claims listed no case for plaintiff. The cover page of the document filed with the court lists plaintiff as the appellant and the Secretary of Veteran's Affairs as the appellee and that plaintiff was seeking $1,900.00 of compensatory damages and $19,000,000.00 in punitive damages. The cover page also states that the "Originating Court Case" was a case before the United States District Court for the District of Arizona in Phoenix under case number cv-17-00375-PHX-GMS, which, according to the cover page was subsequently appealed to the United States Court of Appeals for the Ninth Circuit as case number 17-15523.³ The next three pages of the February 6, 2018 four-page document contain rambling, disjointed, and vague allegations, including plaintiff's allegation that Mr. Arnett signed a contract that he, plaintiff, also had signed. Plaintiff states:

[S]taff of the Voc Rehab employment program failed to fulfill an alleged p to "get the Plaintiff a volunteer job wich the VA would pay for." --- this

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ALLEGED PROMISE came from a WRITTEN CONTRACT created by the counselor, Arnett. And Arnett signed it and so did Mr. Kemper, the plaintiff. That e the doubt of alleged promise and makes it a legal contract, albeit a very absurd contract which the plaintiff brought to the a of arnett--who said that is the way the d creates contracts.

Further in the February 6, 2018 filing, plaintiff refers to this alleged contract as a "dumb but legal contract," and also states:

[l]t is a fact that all employees in government offices who write any contracts are PRESUMED to be qualified and authorized to write such contracts. Example; when a person is stopped by the police or sheriff, the law presumes that the police and sheriff have j and thus, the right to do what they are about to do and their supervisor, later —and the judge later even, will decide n the legality of the acts taken by the police and sheriff.

On February 20, 2018, defendant United States filed a motion to dismiss the complaint currently before this court pursuant to RCFC 12(b)(1) (2017), alleging that plaintiff's complaint is barred by the doctrine of collateral estoppel because plaintiff previously had asserted the "same claims" before Judge Lettow also of this court in Kemper v. United States, No. 17-768C, 2017 WL 3274942 (Fed. Cl. Aug. 2, 2017) (Kemper I). Defendant characterizes plaintiff's two claims as a "fraud" claim and a "claim that the VA allegedly failed to provide him [plaintiff] with particular benefits in his search for volunteer employment."

Defendant also argues, in the alternative, referring numerous times to Judge Lettow's decision in Kemper I, that this court, similarly, should dismiss plaintiff's complaint "because it does not possess subject-matter jurisdiction to entertain Mr. Kemper's claims." Defendant specifically argues that Judge Lettow in Kemper I "correctly held" that plaintiff's breach of contract claim is "based upon his status as a veteran and the benefits allegedly owed to him by the VA," and, thus, is not a claim within this court's jurisdiction. (citing Kemper I, 2017 WL 3274942, at *2). With regard to plaintiff's fraud claim, defendant argues that Judge Lettow in Kemper I also "correctly held" that this court "does not have jurisdiction over Mr. Kemper's fraud claim because such an allegation is based in tort." (citing Kemper I, 2017 WL 3274942, at *2). Regarding plaintiff's request for punitive damages, defendant also found that Judge Lettow in Kemper I held that it "does not have jurisdiction to grant" plaintiff's request for punitive damages. (citing Kemper I, 2017 WL 3274942, at *2). Defendant then asserts that, as Judge Lettow held in Kemper I, "the appropriate avenue for Mr. Kemper to obtain review...