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November 25, 1991


The opinion of the court was delivered by: McCURN, Chief Judge.


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 selection process.

The plaintiff contends that the NEA selection process was constitutionally and statutorily flawed as applied to her application. In response, the government has outlined, in intricate detail, the process that the NEA regularly employs when considering grant applications such as plaintiff's. See Defendant's Memorandum of Law in Support (9/30/91) ("Def. Mem."), at 6-8. In essence, the review process consists of three "rounds" of discussion by a panel of experts in ten different design fields. The panelists spend three days considering all of the applications, culminating in a recommendation for funding for one of the proposed projects. The National Council on Arts reviews the panel's recommendation and refers its findings to the Chairperson of the NEA for review. After these three levels of review, the Chairperson finally decides which application for funding should be granted. Id. (citing Declaration of Andrea Clark, ¶¶ 3-8).

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
      Fed.R.Civ.P. 16(e);
  (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 words:

  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 separately.

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 claims.

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 claim.*fn2


Before reaching the merits of the current motions, the court must address some preliminary, procedural matters. First, the government seeks summary judgment, and not dismissal of plaintiff's complaint. In so moving, the government invokes lack of subject-matter jurisdiction (due to sovereign immunity) and failure to state a claim upon which relief can be granted as grounds for judgment. The government's motion would be more appropriately brought under Fed.R.Civ.P. 12(b). Indeed, since plaintiff's alleged defects are jurisdictional in nature, this court is obligated to convert the government's summary judgment motion to a motion to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), and to consider ...

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