(}REffi[[\!AL Iftr tbt @nftr! $ltttts [.owt of fe[trsl @lsims Ff LED No. 16-957C (Pro Se) DEC 2016 (Filed: December 22,2016 | Not for Publication) U.S, COURTOF FEDERAL CLAIMS Ke)ryrords: Subject Matter Jurisdiction; RCFC 12(b)(l); Tucker Act; Equitable HOWARD E. COSNER, JR.,

Relief; Statute Limitations;28 Plaintiff,

THE LTNITED STATES OF AMERICA,

Defendant. Howard E. Cosner, Jr., Bradenton, FL, pro se.

Nathanael B. Yale,Tial Attomey, Commercial Litigation Branch, Civil Division, Department Justice, Washinglon, DC, for Defendant, with whomwerc Martin Hockey, Jr., Asststarfi Director, Robert E. Kirschman, "/r., Director, arld Benjamin C. Mizer, Principal Deputy Assistant Attomey General. Dana Heck, Department Veterans Affairs, Office General Counsel, Of Counsel.

OPINION AND ORDER KAPLAN, Judge.

The plaintiff in this case, Howard E. action other relief related to his former Veterans Affairs (the Departrnent). The case currently before the govemment's motion to dismiss pursuant to Rules Federal Claims (RCFC) 12(bX1) and 12(b)(6). the reasons forth below, the Court lacks subject

Cosner's claims. The government's dismiss prtrsrrtrnt to RCFC 12(bX1) therefore GRANTED.

?utq l,eE0 00u0 1053 5qb3 *2 BACKGROUND' Cosner was formerly employed by the Department the Orlando VA Medica-

Center. See Compl. at 10; Compl.Tab2.In October 2006, a formal Equal Employment Opportunity (EEO) complaint the Department, alieging age discrimination.

See Tab On January filed a second complaint alleging retaliation. Id. On 19,2007, the Departrnent issued Mr. a notice ofproposed removal. See id. Tab 2 at 102-4. In response, he an appeal that notice to Merit Systems Protection Board. See id.

On March 13, Mr. the Department resolved his claims entering into Settlement and Stipulation Agreement (the Agreement). See Compl. at The Department agreed to provide lump-sum payment to Mr. to remove references to certain negative employment actions from his employrnent file, and to provide neutral employment references period of two years following Agreement's execution. id. Tab 102-1024.In exchange, Mr. Cosner agreed, inter alia, dismiss his formal EEO complaints, to dismiss his appeal before the Merit Systems Protection Board, and to "forever refrain from seeking or accepting employment and/or contractual relationship with, and [to] submit[] his irrevocable resignation" from the Orlando VA Medical Center its satellite facilities. Id. at 102-4-102-B. Additionally, Mr. agreed to "the withdrawal of any claim, complaint[,] andior grievance that the Complainant did, or could may file related any suggestion or cost saving initiative which submitted to the Agency." Id. at 102-B.

More tlan two years later, on June 9, another EEO with Department, this time alleging breach confidentiality provision of Agreement. See id. Tab 137-A. Cosner's claim was based on communication between the Department Congresswoman Suzanne M. Kosmas, occurred consequence of his own March request seeking the Congresswoman's assistance determining his re- employment status. Id. Tab 130-4-130-B. Specifically, response inquiry from Congresswoman Kosmas, the Department informed her Agreement precluded future the Orlando VA Medical Center subsidiaries. id. According to Cosner, the Department breached the confidentiality provision ofthe Agreement when provided this information to the Congresswoman. id. 130. August 4, 2010, the Department rejected Cosner's EEO complaint. Compl. fl

The Department stated that "the Agency did not violate terms conditions ofthe settlement agreement," Cosner was "non-compliant evidenced [an] application for employment" he had allegedly submitted Orlando VA Medical Center. 7 at 130-D. further noted "as general rule, the complainant breaches the terms agreement, then the Agency is excused from performing remaining obligations." It concluded that "June 19,2009, application re-employment the Orlando VA I The facts forth in this section are the allegations Cosner's complaint, which assumed true purposes deciding the govemment's dismiss. ln addition, the Court relies on the attachments to the complaint, which considers purposes of deciding whether possesses over his claims.

Medical Center, which clearly violated the terms conditions ofprovision 2.F [of the Agreement], absolved the Agency of further obligation to adhere its terms," that the "Agency breached the March 13,2008, settlement agreement." Id. complairt before the Court, Mr. Cosner denies he an application with the Orlando VA Medical Center on June 19,2009. Compl. fl He alleges application upon which Department relied was "false, incomplete, not

provided by the Plaintiff." Id. That file, alleges Mr. was actually part later application for employment that he submitted on October 7, 2009, but which had been "altered, dated and signed persons unknown." Id.

Mr. Cosner subsequently appealed the Department's denial ofhis to the Equal Employment Opportunity Commission's Office of Federal Operations (EEOC OFO). See id. fl 4. On February EEOC OFO upheld Department's decision. at 5; see id. It did "not address Agency's argument that Complainant himself violated the

Agreement." Id. 137-B. Instead, EEOC OFO concluded that "the Agency ha[d] not breached Agreement" because was Cosner who had sought the aid his member of Congress in relation to the Agreement. further found that information revealed to her in "substantial compliance" Agreement's allowance for "information divulged 'to those required . . carry out terms' and . 'to individuals involved in its enforcement."' Id. Mr. then request for reconsideration, EEOC OFO denied December 6, 2012. Compl March 2013, suit States District for the Middle District of Florida. Id.; also Sec'y. Dep't Veterans Affairs,2014 WL (M.D. Fla. Feb. 11,2014).In that action, sought 1) rescission Agreement; 2) damages for the Department's alleged breach Agreement; 3) damages for acts of discrimination retaliation originally alleged underlying EEO complaints.

Cosner,2014 WL 542903, at *2. The district court dismissed Cosner's complaint for lack subject matter concluding that Cosner's remedies were limited to the exclusive procedures forth in Title VII. id. *3.2

After district court dismissed his Cosner- --citing the Federal Tort Claims (FTCA), U.S.C. $$ 2671-80-filed three new claims the Department. See Compl. 7-8; also Compl. Tab at201401-C. First, by letter June 2014,he sought a payment of$112,500 as award the Department's alleged adoption ofa plan to reduce wait times denture patients that claims designed. Compl. Tab 201-201-D; also Compl. Thereafter, on June 2014,he submitted second claim, seeking reinstatement, effective August 4,2010, and back pay in the estimated amount of$162,000, Although district court referred case as arising under Title VII, the correct source statutory authority for his claims was the Age Discrimination in Employment Act (ADEA),29 U.S.C. $$ 621-34. See TabT (noting original claims alleged "based on [his] age"). ADEA federal employees are subject same procedures administrative judicial review Title VII claims. 633a(b). *4 Department's alleged abandonment the Agreement settling his claims. Compl.

Tab 301-01-C; also Compl. at 7-8. Finally, June he filed third claim with the Department, this time requesting "restitution compensation perpetration criminal acts upon the Claimant" by Department, in amount $375,000. Compl. Tab ^[1] 407401-C (emphasis omitted); also Compl. at 8. Although not entirely clear, appears that this claim arose out what he alleged was mishandled or fraudulent investigation resolution ofhis EEO claim for breach ofthe Agreement, in which claims forged documents were assembled and considered. Compl. I 401-A-401-B.

The Department denied all three claims. Citing FTCA, stated Cosner had failed to "identifr actionable negligence on the part ofa VA employee acting in course and scope ofhis or her employee [sic] and [had] not establish[ed] [he was] damaged by alleged negligence." 1. The Department concluded by noting that "we do not share your view ofthe litigation and decline grant settle any employment claim your letter[s] purport[] to tender." 2. then suit in Court on August 8, 2016. Docket No. In his asserts that the Department's August 2010 denial ofhis was a

"binding agency determination" and "declar[ation] that [the Department] had abandoned and vacated [Agreement], thus negating all of the Stipulations and Provisions." Compl. at 1. Cosner requests that the Court issue directing "accept, adopt,

invoke comply August 4, 2010 Determination Agency has abandoned withdrawn from [the Agreement]." Id. 9-10. Moreover, seeks $650,000 in damages upon the three "Claims for Restitution compensation" submitted to the Department in June 2014. id. at l,

On 4,2016,the govemment motion to dismiss that currently before the Court. Docket No. the reasons forth below, the Court concludes that lacks Cosner's claims. Therefore, the govemment's motion to dismiss pursuant RCFC 12(bX1) is GRANTED.

DISCUSSION deciding dismiss lack ofsubject jurisdiction, accepts true all undisputed facts in pleadings draws all reasonable inferences favor ofthe plaintiff. Trusted Intesration. Inc. v. United States, F.3d (Fed. l).

However, ifa movant disputes the basis allegations in the complaint are controlling the Court may review evidence extrinsic pleadings.

Cedars-Sinai Med. Ctr. v. Watkins, l1 F.3d 1583-84 Cir. 1993). well-established that complaints that pro se plaintiffs, like one, are held "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer, U.S. 519,520 (1972). Nonetheless, plaintiff bears burden establishing subject matter preponderance the evidence. Brandt v. States, F.3d 1369, 1373 Cir. 2013); Reynolds Armv Air Force Exch. Serv.,846F.2d746,748 (Fed,. 1988). Therefore, even plaintifls must persuade jurisdictional requirements have been met. Bemard v. States, 59 Fed. Cl' 497, (2004), aff d, 98 F.

App'x 860 (Fed. Cir. 2004); Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 2014) ("the leniency afforded a litigant respect to mere formalities does not relieve burden to meet jurisdictional requirements" (intemal quotation citation omitted)).

The Tucker Act grants the United States Court of Federal Claims power "to render judgment upon claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive departrnent, or upon any express or implied contract United States, or for liquidated or unliquidated damages cases not sounding tort." 28 U.S.C. $ l49l(a). It serves waiver of sovereign immunity a jurisdictional grant, but it does not create substantive cause ofaction. Jan's Helicopter Serv.. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish that "a separate source of substantive law . . creates the right to money damages." Id. (quoting Fisher v. United States, 402 F.3d,1167 , Cir. 2005) (en banc relevant part)); Rick's Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1Fed. Cir. 2008) (stating "plaintiff must look beyond Tucker Act to identifu substantive source of law that creates right to recovery ofmoney damages against United States" (citation omitted)).

A central element ofthe relief seeks is this Court issue an requiring to confirm "abandoned" Agreement when rejected his settlement agreement claim on August 4,2010. But of Federal Claims does not have power to "grant affrrmative non-monetary reliefunless tied subordinate money judgment." James v. Caldera, F.3d 573, 580 (Fed. Cir. 1998) (quoting Austin v. United States,206 Ct.CL.719,723 (1975)); Feneiro v. United States,501 F.3d 1349, n.3 2007). case, not alleged claim for money damages is within jurisdiction.

First, Cosner does not allege any breach Agreement in his nor does seek damages any such breach. Holmes v. United States, F.3d 1303, 1312 (Fed. Cir. 1) (noting suits alleging breaches Title VII settlement agreements may fall within Federal Claims's Tucker but only if agreement "support[s] fair inference that [the plaintiff] is entitled payment money damages [the] breach"). Cosner also does not appear be seeking revive underlying discrimination claims grounds that the Agreement somehow void invalid. Even he were, this Court would not proper forum for doing so. Tavlor v. States, 73 Fed.

Cl. 532, n.25 (2006) (Court Federal Claims does not have the equitable power rescind Title VII settlement agreements or order reinstatement of underlying Title VII claims); also Haque v. Unknown Partv, Named As Sec'y of Gov'ts, F. App'x 1005 (Fed. Cir. 2016) ("Title VII vests over exclusively in district court. ." (quoting Taylor States,310 App'x 390, 393 (Fed. 2009))).

Further, this Court lacks seeking damages on the Department's failure to provide him "money saving" award. Cosner does identify (nor is the aware of) any statute, regulation, or other source substantive law that mandates that Department employees receive such awards, Court assumes are discretionary.

Mr. Cosner has also requested an award ofback pay reinstatement effective August 4,2010,the date he alleges the Department "abandoned" Agreement. Mr. Cosner's theory ofrecovery appeaxs to be that when the agreement was "abandoned," his resignation from employment pursuant to the Agreement became "void." Compl. Tab 1 301-8. But even Mr.

Cosner could identify statutory or other basis award reliefin such circumstances (and none is apparent), any claim that arose result August 4, 2010 "abandonment" the settlement agreement would be baned Tucker Act's six-year statute of limitations, 28 U.S.C. $ is jurisdictional in nature. Shoshone Indian Tribe of Wind River Reservation v. United States,672F.3d 1021,1029 Cir. 2012) (citing John R.

Sand Gravel Co. v. United States, 552 U.S. 136-39 (2008)). Further, the Court can order reinstatement only when is connected claim for money damages over which the Court has subject matter jurisdiction ur:der the Tucker Act. 28 U.S.C. $ 1491(a)(2); Hwans v.

United States, 94 Fed. Cl. 259,270 (2010) (finding jurisdiction over claims back pay reinstatement where member military identified Military Pay Act money-mandating statute conferring jurisdiction); Walker United States, Fed. Cl.304,324 (2014) (dismissing claim for reinstatement for lack ofsubject matter jurisdiction when pay was jurisdictionally barred because "absent such money mandating, statutory basis, [the plaintiff] carurot assert her equitable reliefbased court").

Finally, third claim for money damages is what he characterizes as "crimes" against him. As noted above, "crimes" to which refers appear be grounded his allegations that the Departrnent's investigation resolution of his EEO claim for Agreement were marked fraud negligence. This Court, however, lacks under the Tucker over claims that sound tort. Jackson v, States, F App'x 698,701 (Fed. 2007) {per curiam); also 1491(a). Further, claims under FTCA are also outside the subject matter jurisdiction. Robleto v. States, App'x 308-09 2015) (per curiam); also 28 U.S.C. $ 1346(bXl).

CONCLUSION reasons forth above, Coud lacks subject j urisdiction over Cosner's claims. The govemment's motion to dismiss is therefore GRANTED DISMISSED without prejudice. The Clerk of is directed enter judgment accordingly. Each party shall bear own costs.3 after the govemment's motion after Mr. Cosner had filed response, motion requesting that his case be referred to the Court

Federal Claims Bar Association's Pro Bono/Attorney Refenal Program. Docket No. 8. Because determined that lacks subject matter complaint, motion DENIED. Additionally, on December 19,2016, attempted a "Reply Defendant[']s Motion to Dismiss," which would actually suneply to the govemment's reply. The Rules do provide for filing ofa surreply. Therefore, the Clerk is instructed to retum the document to unfiled.

IT IS SO ORDERED. ,l utL ELAINE D. KAPLAN

Judge