Ross v. United States

ORIG!NAI
llntbt @nrte! 9ltaftg @ourt otftDersl @luimg
No. 15-240C FILED
(Filed: July 9,2015)
JUL - I 2015

MICHAEL S. ROSS,pro se, U.S. COURTOF
FEDERALCI.AIM9
Plaintiff,
Pro Se; Rule 12(bX1); Subject-Matter
Jurisdiction

THE LTNITED STATES,

Defendant.

Michael S. Ross, Menifee, CA, plaintiff pro se,

Christopher K. Ilimbush, Trial Attomey, Claudia Burke, Assistant Director, Robert E'
Kirschman, Jr,, Director, Benjamin C. Mizer, Deputy Principal Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, for defendant.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Pro se plaintiff, Michael S. Ross, brought this action pursuant to the Social Security Act,

42 U.S.C. $$ 301-1397mm (2012), seeking monetary damages related to his social security
retirement benefits. The government moved, pursuant to Rule 12(bX1) ofthe Rules ofthe
United States Court of Federal Claims ("RCFC"), to dismiss plaintiff s complaint for lack of
subject-matter jurisdiction. For the reasons set forth below, the Court GRANTS the
sovernment's motion to dismiss.
II. FACTUAL PROCEDURE AND BACKGROUND'

A. Factual Background

On March 9,2015, plaintiff filed a complaint in this Court. See generally Compl. Inhis
complaint, plaintiff alleges (1) that the Social Security Administration C'SSA') improperly
determined that he received overpayments on his social security retirement benefits; (2) that the
amounts of the alleged overpayments are incorrect, and (3) that the SSA owes plaintiff payment
for benefirs withheld by the agency. compl.at8. on April 27,2015, plaintiff filed a notice of
correction in which he provided additional calculations to support his request for compensatory
and punitive damages. Notice of Correction at I . Plaintilf seeks $3 1,000 in compensatory
damages and $10,000 in punitive damages. Notice of Conection at 1; Compl. at 10.

B. ProceduralBackground

Prior to filing his complaint with this Court, plaintiff sought review of his claims before

the SSA. Compl. at 7. In August 2012, an SSA Administrative Law Judge determined that the
sSA had correctly distributed plaintiff s retirement benefits. 1d In October 2014, the SSA

Appeals Council agreed. 1d Plaintiff then brought his claim to this Court on March 9' 201 5.

See generally Compl

On May 5, 2015, defendant filed a motion in this Court to dismiss plaintiffls complaint

for lack of subject-matter jurisdiction pursuant to Rule 12(bX1). See generally Def. Mot. On
June 8, 2015, plaintiff filed a motion for summary judgment as well as other materials which

restated his claims against the SSA. See generally PL Mot. Plaintiff did not file a timely
response to the defendant's motion to dismiss. As a result, on June 9, 2015, the Court issued an

order instructing ptaintiffto show cause on or before June 23, 2015, as to why this action should
not be dismissed for failure to prosecute pursuant to Rule 4l (b). See generally Order to Show

I The facts recounted in this Memorandum Opinion and Order are taken from plaintiffs
complainl, cited in this Memorandum opinion and order as ("compl. at plaintiff s notice
of conection ("Notice of Correction at _"), defendant's motion to dismiss ("Def. Mot at
-"), and -")'
plaintiff s response to order to show cause ("P1. Resp. Order to Show Cause at
plaintiff s response to defendant's motion to dismiss ("P1. Resp. Def. Mot. at -"), Except where
otherwise noted, the facts recited here are undisputed. The Court accepts the -').
undisputed facts
recited in the complaint as true.
Cause. On June 17, 2015, plaintiff tiled a letter with the Court once again restating his clatms
againstthe SSA. See general/y Pl. Resp. Order to Show Cause. On June 30, 2015 the United
States Court ofAppeals for the Federal Circuit, which is located in the same building as this

Court, received plaintifls response to defendant's motion to dismiss, dated June 16,2015. See
generallyPl. Resp. Def. Mot. Recognizing the mailing error, plaintiff s response was redirected

to this Court and filed on July 7, 2015. Id. In his response, plaintiff again restates the

calculation of his claim and indicates that the district courts have jurisdiction over this matter.
Id. at 4-'7 . Plaintiff further asks this Court to transfer the matter to the United States District
Court for the Central District of California. Id. at 7 .

III. STANDARDS OF REVIEW

A. Pra Se Litigants

The Court acknowledges that plaintiff is proceeding p,"o .te, without the benefit of
counsel, and therefore is "not expected to frame issues with the precision ofa common law
pleading." Roche v. u.s. Posral serv., 828 F.2d I 555, 1558 (Fed. cir. 1987). Pro se plaintiffs

are generally afforded greater leeway in their pleadings than litigants represented by counsel.

see Haines v. Kerner,404 U.S. 519, 520 ( 1972) (holding that pro se complaints, "however

inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by
lawyers"). Accordingly, the Court should thoroughly examine plaintiffs complaint in an attempt
to discern whether "plaintiffhas a cause of action somewhere displayed." Ruderer v. united
States,4l2 F.2d 1285, 1292 (Ct. Cl. 1969). However, there "is no duty for the trial court to
create a claim which [plaintiff] has not spelled out in his pleadings." Lengen v. United
States'

100 Fed. cl.3l'].,328 (201l) (citation omitted). Although a"pro se plaintiff is held to aless

stringent standard than that of a plaintiff represented by an attomey, . . . the pro se plaintifl
nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance
ofthe

evidence." v. Unitecl States,93Fed. Cl. 163, 165 (2010) (citations omitted). Therefore,
Riles

while the Court may excuse ambiguities in plaintiff s complaint, the Court does not excuse the
complaint's failures. see Henke v. (Inited stqtes,60 F.3d 795, 799 (Fed. cir.1995); see also
Demes v. Unitecl States,52 Fed. Cl. 365, 368 (2002) ("tTlhe leniency afforded pro se litigants

with respect to mere formalities does not relieve them ofjurisdictional requirements.")'
 B. Jurisdiction

It is well established that subject-matter jurisdiction is "a threshold question that must be
resolved . . . before proceeding to the merits" ofa claim. steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 88-89 (1998). When considering whether to dismiss an action for lack of subject-

matter jurisdiction, the Court is "obligated to assume all factual allegations [in the complaint] to

be true and to draw all reasonable inferences in plaintiff s favor." Henke, 60 F .3d at 797 .
However, plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.
Reynolds v. Army & Air Force Exch. 9erv.,846F.2d746,748 (Fed' Cir. 1988). If subject-matter
jurisdiction is found to be lacking, the Court must dismiss the action. RCFC 12(b)(l).

The jurisdiction ofthe United States Court ofFederal Claims is established by the Tucker
Act, which provides:

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. $ 1a91(a)(1) (2012). The Tucker Act, however, is "a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages. . . . [T]he

Act merely confers jurisdiction upon [the United States Court ofFederal Claims] whenever the
substantive right exists." United States v. Testan, 424 U .S 392,39S ( 1976). And so, to pursue a
substantive right under the Tucker Act, a plaintiff must identify a money-mandating
constitutional provision, statute or regulation, or an express or implied contract with the United
States. Cabral v. UnitedStates,3lTF. App'x 979,981 (Fed. Cir.2008)

IV. DISCUSSION

A. This Court Lacks Subject-Matter Jurisdiction to Consider Plaintiff s Claims

Defendant moved to dismiss plaintiffls complaint on the ground that this Court does not
possess jurisdiction to consider plaintiff s claims against the SSA. Def. Mot. at 3-6. For the

reasons discussed below, the Court agrees that it does not possess jurisdiction and that it'
therefore, must dismiss plaintiff s complaint for lack of subject-matter jurisdiction.
 1 The Court Does Not Possess Jurisdiction to Consider Plaintiff s Social
Security Act Claims

The Court recognizes that plaintiff is proceeding pro .se, and so he is "not expected to

frame issues with the precision of a common law pleading." Roche,828 F.2dat 1558. Although

"a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an
attorney . . . lhe pro se plaintiff, nevertheless, bears the burden of establishing the Court's
jurisdiction by a preponderance of the evidence . . . ." Riles,93 Fed. Cl. at 165 (citations
omitted).

Plaintiff atleges that the SSA improperly determined that he received overpayments on
his social security retirement benefits, that the amounts ofthe alleged overpayments are

incorrect, and that the SSA in fact owes him payment for benefits withheld by the agency,
Compl. at 8. This Court has long recognized that it does not possess jurisdiction to entertain
such claims. See Marcus v. (Jnited States, 909 F.2d 1470, 1471 (Fed. Cir. 1990); see also

Adclams-More v. LJnited States,81 Fed. Cl. 312,315 (2008). The Social Security Act provides in
pertinent part that:

[An] action shall be brought in the district court ofthe United States for the
judiciat district in which the plaintiff resides, or has his principal place of
tusiness, or, if he does not reside or have his principal place ofbusiness within
any such judicial district, in the United states District court for the District of
Columbia.

42 U.S.C. $ a05(g) (2012 & Supp. 2015). "Indeed, the social Security Act confers exclusive

jurisdiction upon federal district court for actions regarding Social Security benefits." Treece v-

LJnitetl States,96 Fed. Cl. 226,230 (2010) (citing 42 U.S.C. $ a05(g)-(h)). The Social Security
Act makes clear that a challenge to a social security benefits decision must be brought in a
united States District court. see 42tJ.S.C. $ a05(g); see also Marcus,909F.2dat147l. The
Social Security Act further provides that "[n]o findings of fact or decision of [the sSA] shall be
reviewed by any person, tribunal, or government agency except as herein provided." 42 U.S.C. $

405(h). And so, this Court does not have jurisdiction to consider plaintiff s claims seeking relief

under the Social Security Act. See Treece,96 Fed. Cl. ar232.
 2. Plaintiff Fails to Establish an Alternative Basis for Jurisdiction

Dismissal ofthis action is also appropriate because plaintifffails to establish any other
valid jurisdictional basis for bringing his claims in this Court. In his complaint, plaintiffpoints
to four additional grounds for jurisdiction: (l) the Declaratory Judgment Act, 28 U.S.C. $ 2201;
(2) the federal mandamus statute, 28 U.S.C. $ 1361; (3) the federal question statute, 28 U.S.C. $

1331; and (4) the Administrative Procedure Act ("APA"),5 U.S.C. $$ 701-06. Compl. at 2.
But, for the reasons discussed below, none ofthese provisions provide a basis for this Court to
exercise jurisdiction over plaintiff s claims.

As an initial matter, the Declaratory Judgment Act, 28 U.S.C. $ 2201, does not confer
this Court with subject-matter jurisdiction to consider plaintiff s claims. The United States Court
of Appeals for the Federal Circuit has held that the Declaratory Judgment Act does not apply to
the United States Court of Federal Claims:

The Court of Federal Claims has never been granted general authority to issue
declaratory judgments, and to hold that the Court of Federal Claims may issue a
declaratory j udgment in this case, unrelated to any money claim pending before
it, would effectively ovenide Congress's decision not to make the Declaratory
Judgment Act applicable to the Court of Federal Claims.

Nat'l Air Traffic Controllers Ass'n\,. United States, 160F.3d 714,716-1.7 (Fed. Cir. 1998); see
also Hoag v. united States,99 Fed. Cl. 246,252 (2011). Under the Declaratory Judgment Act,
"any court of the United States, upon the filing ofan appropriate pleading, may declare the rights
and other legal relations ofany interested party seeking such declaration, whether or not further
relief is or could be sought." 28 U.S.C. $ 2201(a). However, "the Declaratory Judgment Act is
not an independent basis for subject matter jurisdiction." StoneEagle Servs., Inc. v. Gillman,746
F.3d 1059, 1062 (Fed. Cir.2014). The Act instead is a "procedural vehicle" through which
plaintiff may request a remedy after establishing separate grounds for jurisdiction. 1d. And so,

plaintiff cannot rely upon the Declaratory Judgment Act to establish jurisdiction here.

Plaintiff s reliance upon the federal mandamus statute,2S U.S.C. $ 1361, is equally
misplaced. See Compl. at 2. The federal mandamus statute provides that "[t]he district courts
shall have original jurisdiction ofany action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28
U.S.C. $ 1361. Courts have long recognized that references to "district courts" generally mean
the Article III courts. See Int'l Longshoremen's & Warehousemen's Union v. Juneau Spruce

Corp ,342 U.S. 237, 240-41 (1952); see also Ledford v. United States,zgT F.3d' 1378, 1381
(Fed. Cir. 2002) (confirming that the United States Court of Federal Claims, as a non-Article III
court, cannot hear matters solely in the purview of the district courts). As a non-Article III court,
see 28 U.S.C. $ 171(a) (2012) (designating this Court as an Article I court), this Court does not
have authority to issue a writ of mandamus under section 1361. See 28 U.S.C. $ 1361 (granting

mandamus powers only to the Article III courts); Del Rio v. United States,87 Fed. Cl. 536' 540
(2009). And so, plaintiff cannot rely upon the federal mandamus statute to confer to this Court
jurisdiction over his complaint, 1d.

In addition, the statute goveming federal question jurisdiction does not provide this Court
with jurisdiction to entertain plaintiff s complaint. The federal question statute states, "[t]he
district courts shall have original jurisdiction ofall civil actions arising under the Constitution,
laws, or treaties of the United States." 23U.S.C. $ l33l. Where the adjudication of atype of
claim has been granted to the district courts exclusively, this Court has no jurisdiction to hear the
case and must dismiss the matter. See Del Rio,87 Fed Cl. at 540-41. As this Court has

observed, "section 1331 cannot satisfy the Court of Federal Claims money-mandating

requirement for jurisdiction. Therefore, plaintiff cannot use section I 33 I to create jurisdiction in
this court." Hernandez v. UnitedStates,38 Fed. C1.532,537-38 (1997). Accordingly, this
Court lacks jurisdiction to consider plaintif| s claims.
Finally, the APA does not grant this court jurisdiction to hear plaintiff s claims. It is
well established that "[t]he Administrative Procedure Act does not establish jurisdiction in this
court over claims for money." Union Bank & Trust Co. v. tlnited States,27 Fed. Cl. 403, 404
(1992), affd,6 F.3d 788 (Fed. Cir. 1993) (citation omitted). The APA only "provides the
framework for determining when a court may review an agency's determination." Stegall v.

United States,19 Cl. Ct. 765,769 (1990) (citing 5 U.S.C. $$ 701-06 (1988)). "Absent anv
pleading ofa statute, regulation, constitutional provision or other basis mandating payment by

the govemment . . . [a claim is] insufficient to invoke the jurisdiction ofthe Court ofFederal
Claims." Llrard v. United States,76F. App'x 941,944 (Fed. Cir. 2003). Because the APA does

not confer this Court with jurisdiction to entertain plaintiff s claims, the Court must dismiss

olaintiff s complaint.
 In sum, when viewing plaintiff s complaint in the most favorable and deferential light,
the complaint fails to articulate any claim within this Court's limited jurisdiction' Because
jurisdiction is a "threshold matter," this matter may proceed no further in this Court. Copar
PumiceCo., Inc.v.LJnitedStates,ll2Fed.Cl.515,527(2013)(citingArbaughv Y&HCorp.,
s46 U.S. s00,514 (2006)).

B. Transfer to a District Court Is Not Appropriate

Plaintiff also requests that the Court transfer this matter to the United States District
Court for the Central District of Califomia. Pl. Resp. Def. Mot. at 7. This Court may transfer a

case to a different court if it lacks jurisdiction, recognizes that another court does have

jurisdiction, and "if it is in the interest ofjustice" to transfer the matter' 28 U.S.C. $ 163 1

(2012). Under such circumstances, the Court may transfer the matter to "the courts ofappeals
and district courts of the United States, the United States District Court for the District ofthe
canal Zone, the District court of Guam, the District court of the virgin Islands, the . . . [United
States Court of Federal Claimsl, and the Court of Intemational Trade;' Id. $ 610. The United

States Court ofAppeals for the Federal Circuit has held that the phrase "in the interest ofjustice"
in section 1631 refers to whether the claim is frivolous. see Galloway Farms, Inc. v. United
States,834 F.2d 998, 1000 (Fed. Cir. 1987) (citation omitted); see also Dillard v. United States,
No. 14-1203C,2015 WL 739934,at*4(Fed. Cl. Feb.20,2015). Put another way, this Court
should transfer the matter unless it finds that the case involves "legal points not arguable on the
merits" or that the "disposition is obvious." Galloway Farms,834F.2d at 1000-01 (citations
omitted). Consistent with this explanation, the transferring court should make the transfer only if
(1) the transferor court lacks jurisdiction; (2) the claim could have been brought in the transferee
court at the time it was filed; and (3) transfer is in the interest ofjustice. Zoltek Corp. v. United
States,672 F.3d 1309, 1314 (Fed. Cir.2012).
As explained above, this Court lacks jurisdiction to consider plaintiffs claim. The Social
Security Act limits the scope ofjudicial review of a final decision by the SSA and creates an
exclusive remedy procedure. 42 U.S.C. $ a05(g)-(h). Appeal from the SSA must occur within
60 days ofthe mailing notice ofthe final decision. 1d, $ a05(g). The SSA Appeals Council, the
final stage of administrative review,20 C.F.R. $ 404.981 (2015), made its determination on

plaintiff s claim in october 2014. compl. at 7. Plaintiff filed his complaint on March 9,2015,
long after the period to file an appeal ofthe SSA's decision had elapsed. see generally compl.
Because plaintiff s complaint is untimely, the United States District Court for the Central District
of Califomia would not have jurisdiction to consider plaintiff s claims. See 42 U.S.C. $ a05(g);
see generally Compl. It is, therefore, unnecessary to determine whether transfer of this matter
would be in the interest ofjustice. And so, the Court must deny plaintiffs request for transfer
and dismiss plaintiff s complaint. RCFC 12(b)(l); see 28 U.S.C. $ 1631.
V. CONCLUSION

For the foregoing reasons, the Court GRANTS defendant's motion to dismiss.

The Clerk's Office is directed to ENTER final judgment in favor of defendant,
DISMISSING the comolaint.

No costs.

IT IS SO ORDERED.