The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
This action arises from plaintiff's inability to secure
federal funding from the Department of Health and Human
Services ("HHS") and/or the National Endowment for the Arts
("NEA") (collectively, "government") for various projects she
has proposed. Currently before the court are five motions, the
most substantive of which is the government's motion for
summary judgment. For the reasons discussed herein, this court
finds that it does not have subject matter jurisdiction over
the majority of plaintiff's causes of action. For the
remaining claims, plaintiff has failed to state a claim upon
which relief can be granted. Hence, plaintiff's complaint is
dismissed with prejudice. This ruling obviates the need to
rule on the other motions brought before the court.*fn1
Plaintiff Susan R. Frasier is a resident of Schenectady, New
York. She describes herself as a "Vietnam era veteran" who is
enrolled in various public assistance programs. Complaint (1st
Cause of Action) ¶ 5; Plaintiff's Affidavit in Support of
Motion for Separate Trials, at ¶ 2. Due to her unfortunate
financial condition, plaintiff is unable to afford legal
counsel, and hence is proceeding pro se. See id.
Plaintiff was last regularly employed in September, 1988.
According to her complaint, "[p]laintiff has been actively
seeking work opportunities through government grants and
contracting programs since September, 1988, when her regular
employment and career was cut short" by the incidents alleged
in unrelated litigation pending before Northern District Judge
Cholakis. Complaint (1st Cause of Action) ¶ 4. Specifically, in
1989, plaintiff applied to the National Endowment for the Arts
for a "Design Advancement Project" grant through the NEA's
Design Arts Program. Plaintiff sought NEA financing for her
proposed purchase of a $15,000 "computer-assisted design
work-station." Complaint (2d Cause of Action) ¶ 2. She
satisfied all of the program's procedural requirements, thus
allowing her application to be considered in the NEA's
With respect to plaintiff's proposed project, the program's
panel of experts recommended against funding, and the National
Council on Arts agreed. The Chairperson of the NEA ultimately
adopted the panel's and Council's decision. By letter dated
May 15, 1990, plaintiff was notified that her proposed project
had not been selected for program funding. The government
avers that plaintiff's application was processed along the
ordinary channels; plaintiff has offered no credible evidence
to controvert the government's representation.
In January, 1990, while her application for funding was
pending before the NEA, plaintiff submitted a separate
application to the Department of Health and Human Services,
seeking funding for two new and unrelated proposals. The
source of the funding was the HHS's Small Business Innovation
Research Program ("SBIR Program"), created through the Small
Business Innovation Development Act of 1982, 15 U.S.C. § 638(f),
(g). The review process for SBIR Program applications
is as intricate as that employed by the NEA, following a
schedule determined in cooperation with the government's Small
Business Association. Def. Mem. at 8-9 (citing
15 U.S.C. § 638(g)(2)). The record is unclear as to the substance of
plaintiff's proposal, except that it was submitted by her under
the name of her business, "Strictly Hers Consulting." See Def.
Mem. at 15. Again, the government avers that plaintiff's
application was processed pursuant to the agency's established
policy, see Def. Mem. at 9-11, and once again, in August, 1990,
plaintiff's application was rejected outright. Id. at 16. This
marked the second occasion on which one of plaintiff's
proposals was denied federal funding.
Plaintiff was certainly not alone in her inability to obtain
federal assistance for her proposed projects. For example,
plaintiff's HHS application was one of 146 initially reviewed.
Twenty-seven grant proposals were in the same "topic area" as
one of plaintiff's proposals, twenty-six were in the same area
as plaintiff's other proposal. Def. Mem. at 15-16 (citing
Declaration of Janet S. Hartnett, ¶¶ 4-6). Only one proposal
was selected for funding in each respective area; therefore,
the overwhelming majority of projects were denied funding. See
id. With respect to plaintiff's allegation that the proceeding
was intentionally slanted against her in particular, the court
notes that of the twenty-seven proposals submitted in one of
her topic areas, plaintiff's was ranked in the top half (13 out
of 27). Id.
In the midst of her respective application processes,
plaintiff discovered that HHS also funds a "Community Services
Block Grant Program." Complaint (Third Cause of Action) ¶ 2.
Upon further inquiry, plaintiff learned that the program,
available through the applicant's state (in this case New
York), provided funds only for specialized community action
programs. Plaintiff therefore determined that she was
ineligible for funding thereunder, and did not apply for funds.
Plaintiff now insists that HHS's standards for distributing
grants under this program were "inconsistent, invasive,
prohibitive, and contrary with the funding specification of the
agency, . . . without a uniform technique which prevented from
[sic.] the end result of discrimination," and were negligently
imposed against her. Id. ¶ 5.
Plaintiff brought suit in this court in August, 1990,
stating three causes of action. In the first, plaintiff
contends that HHS's procedure which denied her funding was
unconstitutional and illegal, in violation of at least
thirty-nine different federal statutes and regulations, two
constitutional provisions, and numerous common laws. Complaint
(First Cause of Action) ¶ 10. Her second cause of action
challenges the results of the NEA procedures as they were
applied to her application, on substantially similar grounds.
Complaint (Second Cause of Action) ¶ 4 (again, thirty-nine
violations alleged). The third cause of action challenges HHS's
method for determining Community Services Block Grant Program
awards. Plaintiff seeks total recovery of $233,600.
There are now six motions before the court:
(1) By plaintiff, to amend the pretrial
scheduling order and stipulation, pursuant to
(2) By plaintiff, to sever the causes of action
in her complaint, pursuant to Fed.R.Civ.P.
(3) By plaintiff, to amend her complaint,
pursuant to Fed.R.Civ.P. 15(a);
(4) By plaintiff, for judgment on the pleadings;
(5) By defendant, to dismiss plaintiff's first
and third causes of action for failure to
prosecute, pursuant to Fed.R.Civ.P. 41(b);
(6) By defendant, for summary judgment, pursuant
to Fed.R.Civ.P. 56(b).
Plaintiff's first three motions are prompted in large part
by her impoverished financial status and her poor health, both
of which she has taken care to fully delineate for the record.
See, e.g., Plaintiff's Affidavit in Support of Motion for
Separate Trials, at ¶ 2; Letter of Plaintiff to court (August
1, 1991); Plaintiff's Memorandum of Law in Opposition, passim.
Plaintiff asserts that, due to her disadvantaged condition, she
is able to pursue only one cause of action at a time, beginning
with her second cause of action (against NEA). In her own
plaintiff's recent change in financial status
below the poverty line has made it impossible to
comply with the xerox and postage requirements to
process more than one cause of action;
[plaintiff's] recent change in impaired physical
health has made it impossible to endure the
schedule requirements to process more than one
cause of action; and plaintiff's continued
inability to obtain an attorney have all
established a personal hardship overlooked by the
Court [when issuing the scheduling order]. . . .
Plaintiff's Notice of Motion to Amend Pretrial Order, at 2.
Plaintiff therefore moves for the court to (1) amend the
pretrial stipulation and scheduling order so as to relieve her
of the deadlines set forth therein with respect to her first
and third causes of action, and (2) sever her second cause of
action from the others, so that she can proceed with each
Plaintiff's third motion, to amend her complaint, is brought
simply to allow her to make technical modifications, thus
ridding the complaint of professed procedural defects.
Specifically, plaintiff wishes to add "notices of
constitutional claims" to her complaint, presumably to put the
government on notice that she is asserting constitutional
The government, in turn, opposes plaintiff's motion to amend
the scheduling order, and cross moves for dismissal of the
first and third causes of action due to plaintiff's failure to
prosecute those claims. The government also moves for summary
judgment, arguing (1) that the government has not waived its
sovereign immunity with respect to the claims asserted by
plaintiff, (2) the court lacks subject-matter jurisdiction,
and (3) plaintiff has failed to state a constitutional