Kemper v. United States
17-768
| Fed. Cl. | Aug 2, 2017Background
- Kevin Kemper, pro se veteran, alleges the VA's Vocational Rehabilitation and Employment office agreed to find him a 3‑month volunteer position and pay him; he claims the VA breached that agreement and committed fraud when it removed him from the program.
- VA notified Kemper of removal on September 8, 2015, and informed him of his right to administrative review; Kemper claims he was owed $1,900 compensatory and $10,000 punitive damages.
- Kemper filed suit in the Court of Federal Claims (May 25, 2017); he previously filed and lost a suit in the District of Arizona and the Ninth Circuit dismissed his appeal as frivolous.
- The Government moved to dismiss under RCFC 12(b)(1) for lack of subject‑matter jurisdiction.
- The court treated Kemper’s claim as a challenge to VA benefits decisions (not a true contract claim) and concluded the Court of Federal Claims lacks jurisdiction over VA benefit disputes and state‑law tort/fraud claims against the United States.
- The court dismissed the complaint for lack of jurisdiction and entered judgment for the Government; punitive damages were not available in any event.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court of Federal Claims has Tucker Act jurisdiction over Kemper’s claim that the VA failed to provide benefits/placement | Kemper frames it as a breach of contract: VA promised to find and compensate a volunteer position | Government: claim is effectively a VA benefits denial subject to the VA’s comprehensive statutory review scheme, not a money‑mandating source under the Tucker Act | Court: Lacks jurisdiction — claim is a veterans benefits dispute that must proceed through VA/Board/CAVC/Fed. Cir. appellate route |
| Whether the Court has jurisdiction over alleged fraud/tort and award of punitive damages | Kemper alleges the VA fraudulently misrepresented services on its website and seeks punitive damages | Government: Fraud allegations are tort claims not within Tucker Act jurisdiction; punitive damages are unavailable against the United States | Court: Lacks jurisdiction over tort/fraud; punitive damages not recoverable |
Key Cases Cited
- Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir.) (proponent bears burden to establish jurisdiction)
- Kelley v. Secretary, United States Dep't of Labor, 812 F.2d 1378 (Fed. Cir.) (pro se leniency does not excuse jurisdictional requirements)
- United States v. Mitchell, 463 U.S. 206 (Sup. Ct.) (Tucker Act waives sovereign immunity but does not create substantive rights)
- United States v. Testan, 424 U.S. 392 (Sup. Ct.) (Tucker Act requires independent money‑mandating source)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir.) (plaintiff must identify separate substantive source creating right to money damages)
- Pines Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379 (Fed. Cir.) (court looks to true nature of claim for jurisdictional analysis)
- Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338 (Fed. Cir.) (fraud allegations against the government are tort claims)