Plaintiff V. The UNITED States, 10-26 C

• Decision Date: 07 June 2010
• Docket Number: No. 10-26 C,10-26 C
• Parties: Plaintiff, v. THE UNITED STATES, Defendant.
• Court: Court of Federal Claims

Plaintiff,

v. THE UNITED STATES, Defendant.

No. 10-26 C

United States Claims Court.

(Filed: June 7, 2010)

Kenneth Bowling, Ontario, OR, pro se.

Vincent D. Phillips, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

KENNETH BOWLING,

Pro Se Claim for Damages for Injuries Incurred During Work at the Navy Public Works Center; No Jurisdiction for Claim Based on Tort Theory of Negligence

OPINION AND ORDER

HEWITT, Chief Judge

Following surgery for lung cancer, Kenneth Bowling (plaintiff or Mr. Bowling) filed a Complaint (Complaint or Compl.) against the United States (defendant or United States) on January 13, 2010, in which he asserts that he is entitled to relief as a result of defendant's gross negligence in exposing him to roofing materials containing asbestos during the course of his employment with the Navy Public Works Center (PWC).

I. Background

Before the court are plaintiff's Complaint; Defendant's Motion to Dismiss (defendant's Motion or Def.'s Mot.), Docket Number (Dkt. No.) 7, filed February 23, 2010; Plaintiff's "Motion of Argument to Defendant's Motion to Dismiss" (plaintiff's

Response or Pl.'s Resp.), Dkt. No. 11, filed March 17, 2010; and Defendant's Reply in Support of Its Motion to Dismiss (defendant's Reply or Def.'s Reply), Dkt. No. 14, filed April 5, 2010. The United States asserts that plaintiff's Complaint must be dismissed in its entirety for lack of subject matter jurisdiction. Def.'s Mot. 1. Mr. Bowling asserts that three federal statutes provide him with a basis for relief and confer subject matter jurisdiction on the United States Court of Federal Claims (CFC): (1) the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 (2006); (2) the Federal Employee Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (2006); and (3) the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (2006). Pl.'s Resp. 1-4. Alternatively, plaintiff requests that the court transfer his case should it lack subject matter jurisdiction. Pl.'s Resp. 8.

Also before the court are Plaintiff's "Motion to Request Leave from the Court for Amended Claim Petition" (plaintiff's Motion or Pl.'s Mot.), Dkt. No. 18, filed April 26, 2010; and Defendant's Response in Opposition to Motion for Leave to Amend Complaint (defendant's Response or Def.'s Resp.), Dkt. No. 19, filed May 13, 2010. The court considers whether a grant of plaintiff's Motion would affect the outcome of the case. Because the court concludes that it lacks subject matter jurisdiction for the reasons stated below, the proposed amendment will not affect the outcome of the case. Plaintiff's Motion is therefore DENIED.

In 1977, PWC employed Mr. Bowling in San Diego, California. Compl. 3; Def.'s Mot. 1. Mr. Bowling asserts that during the course of his employment at PWC, he used roofing products manufactured by Johns Manville Corporation that contained asbestos and lacked proper warnings. Compl. 1, 3; Def.'s Mot. 1-2. Further, Mr. Bowling asserts that PWC failed to follow proper safety measures as required by OSHA. Compl. 3; Def.'s Mot. 1. Mr. Bowling subsequently worked for other roofing entities but asserts that these employers complied with OSHA regulations and therefore could not be responsible for his lung damage. Compl. 4; see Def.'s Mot. 1-2. In December of 2007, Mr. Bowling underwent surgery for lung cancer, which, he asserts, he developed as a result of asbestos exposure during his employment at PWC. Compl. 3, 5-6. Mr. Bowling seeks damages from PWC for his complete and permanent disability resulting from asbestos exposure. Compl. 4. Mr. Bowling also seeks ten million dollars from Johns Manville Corporation.¹ Pl.'s Resp. 7.

II. Legal Standards

A. Subject Matter Jurisdiction

Because subject matter jurisdiction is a threshold matter, it must be established before the case can proceed on the merits. Steel Co. v. Citizens for a Better Env't (Steel Co.), 523 U.S. 83, 94-95 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). Plaintiff bears the burden of establishing subject matter jurisdiction, and the court may determine whether he has met this burden once he has had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969)).² If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94; Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3).

The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491 (2006). The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon "any Act of Congress or any regulation of an executive department... for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (emphasis added). Therefore, the CFC lacks the authority to hear tort claims against the United States because the Tucker Act expressly excludes such claims from the jurisdiction of the court. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (citing 28 U.S.C. § 1491(a) and Keene Corp. v. United States, 508 U.S. 200, 214 (1993)); see, e.g., Souders v. S.C. Pub. Serv. Auth. (Souders), 497 F.3d 1303, 1307 & n.5 (Fed. Cir. 2007) (holding that plaintiff's negligence claims sounded in tort and thus were beyond the jurisdiction of the CFC and could not be transferred there); Moore v. Durango Jail (Moore), 77 Fed. Cl. 92, 96 (2007) (holding that the CFC did not have jurisdiction over plaintiff's claim because "plaintiff's claim of negligence sounds in

tort").

Further, the CFC has jurisdiction only over claims against the United States. 28 U.S.C. § 1491(a)(1); see United States v. King, 395 U.S. 1, 2-3 (1969) (stating that the jurisdiction of the CFC "has been limited to money claims against the United States [g]overnment" since Congress created the court in 1855); RCFC 10(a) (stating that the title of the complaint must designate the United States as defendant); see also RCFC 4rules committee note (2002 rev.) (stating that "only the United States is properly the named defendant").

The proper forum for federal tort claims is a United States district court. 28 U.S.C. § 1346(b)(1) (2006). Under 28 U.S.C. § 1346(b)(1), United States district courts have exclusive jurisdiction to hear tort claims against the United States, including all FTCA claims. See id. However, before an FTCA claim may proceed in a district court, the claimant must first present his claim to the appropriate federal agency. 28 U.S.C. § 2675(a). Only after the appropriate agency issues a final decision denying an FTCA claim may it be brought in a United States district court. Idd.

B. Transfer for Lack of Subject Matter Jurisdiction

Under 28 U.S.C. § 1631 (2006), a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. 28 U.S.C. § 1631; see Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed. Cir. 1988). An FTCA claim could have been brought in a federal court only if administrative remedies were exhausted at the time the case was

filed. 28 U.S.C. § 2675(a).

III. Application of Legal Standards to This Case

For the following reasons, this court finds that it lacks subject matter jurisdiction over all of Mr. Bowling's claims. Additionally, it finds that transfer of Mr. Bowling's case to another federal court of the United States is not appropriate.

A. This Court Lacks Subject Matter Jurisdiction over Mr. Bowling's Claims

Neither plaintiff's Complaint nor his Response establishes that his claim falls within this court's subject matter jurisdiction as defined by the Tucker Act. See Compl. passim; Pl.'s Resp. passim. In particular, the court finds that it lacks subject matter jurisdiction for three reasons.

First, Mr. Bowling's claim against the United States sounds in tort. See Compl. passim. Mr. Bowling titles his Complaint "Tort Claim," and seeks damages for personal injuries resulting from alleged negligence. Id. at 1, 3. As a general matter, negligence claims are tort claims. See Souders, 497 F.3d at 1307 & n.5 (stating that negligence claims fall within the broader category of tort claims); Moore, 77 Fed. Cl. at 96 (categorizing a negligence claim as one sounding in tort). This places Mr. Bowling'sclaim beyond the scope of this court's jurisdiction because this court may only hear cases that do not sound in tort. See 28 U.S.C. § 1491(a)(1).

Second, although Mr. Bowling asserts that each of FTCA, FECA, and OSHA provides a separate basis of subject matter jurisdiction for his claim against the United States, he is mistaken in this belief. See Pl.'s Resp. 1-4. While these federal statutes provide federal remedies, they do not expand the jurisdiction of this court or allow the court to hear Mr. Bowling's claim.

The FTCA is subject to 28 U.S.C. § 1346(b)(1), which gives United States district courts exclusive jurisdiction over tort claims against the government. See 28 U.S.C. § 1346(b)(1). While the FTCA provides a waiver of the United States' sovereign immunity in negligence cases such Mr. Bowling's, the waiver applies only in federal district court. See 28 U.S.C. §§ 1346(b)(1), 2674. The United States argues that Mr. Bowling's claim must be dismissed because jurisdiction over FTCA claims does not extend to the CFC, where Mr. Bowling has brought his claim. Def.'s Reply 2. Mr. Bowling's assertion that the FTCA extends jurisdiction to the CFC, see Pl.'s Resp. 1-2, is incorrect. The CFC has no subject matter jurisdiction over...