Topping v. United States

3Jn tbe Wniteb $tate5 Court of jfeberal <!Claims
No. 15-1330C
Filed June 29, 2016 FILED
NOT FOR PUBLICATION
)
JUN 2 9 2016
DALE JOHN TOPPING, ) U.S. COURT OF
) FEDERAL CLAIMS
Plaintiff, )
) Pro Se; RCFC 12(b)(l), Subject-Matter
v. ) Jurisdiction; RCFC 12(b)(6), Failure to
) State a Claim; Implied-in-Fact Contract;
THE UNITED STATES, ) Fifth Amendment Takings; In Forma
) Pauperis.
Defendant. )
~~~~~~~~~~~~~~~)
Dale John Topping, North Fort Meyers, FL, Plaintiff prose.
Kenneth S. Kessler, Trial Attorney, Allison Kidd-Miller, Assistant Director, Robert E.
Kirschman, Jr., Director and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, for Defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff prose, Dale John Topping, brought this action against the United States seeking
monetary damages and declaratory and injunctive relief for alleged violations of his civil rights,
a Fifth Amendment takings and violations of the Due Process and Equal Protection Clauses of
the Fifth and Fourteenth Amendments, in connection with the United States Department of
Education's decision to garnish his Social Security disability benefit payments to satisfy an
outstanding federal student loan debt. The government has moved to dismiss the complaint for
lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be
granted, pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of the United States Court of
Federal Claims ("RCFC"). Plaintiff has also filed a motion to proceed in forma pauper is and a
motion for judgment of default and petition for a partial writ of mandamus. For the reasons set
forth below, the Court: (1) GRANTS the government's motion to dismiss; (2) DENIES as moot
plaintiff's motion for judgment of default and petition for a partial writ of mandamus; and (3)
GRANTS plaintiff's motion to proceed informa pauperis.
II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

Plaintiff prose, Dale John Topping, commenced this action on November 5, 2015. See
generally Com pl. Plaintiffs complaint is difficult to follow. Nonetheless, it appears that
plaintiff seeks monetary damages from the United States, and declaratory and injunctive relief, in
connection with the United States Department of Education's ("DOE") decision to garnish
plaintiffs Social Security disability benefit payments to satisfy the outstanding balance for
plaintiffs defaulted federal student loans. Id.

Specifically, in the complaint plaintiff alleges that, on or about October 8, 1986, the
Michigan Department of Education improperly declared him to be in default on four federal
student loans. Id. at~ 10, Exs. 13, 69; Def. Mot. at 3. Plaintiff further alleges, among other
things, that as a result of his protracted dispute with the DOE regarding the repayment of these
student loans, he has suffered "extreme stress" that was "intentionally inflicted" upon him as part
of the DOE's "malicious defense" of its administrative decision. Compl. at Prayer for Relief,~~

C, F. In addition, plaintiff alleges that the DOE violated his Fifth and Fourteenth Amendment
rights to due process and equal protection under the law during the administrative and court
proceedings involving the repayment of his student loans. Id. at~~ 6, 88, 96, 100, 107-11.

In this regard, plaintiff contends that, among other things, the DO E's garnishment of his
Social Security disability benefit payments to repay these loans constitutes a takings of his
property under the Fifth Amendment. Id. at~~ 87, 99-106. As relief, plaintiff requests that the
Court award him monetary compensation, declare the DOE's decision to garnish his benefits to
be arbitrary, capricious and contrary to law, and issue a writ of partial mandamus. Id. at Prayer
for Relief.

As background, between 1980 and 1986, plaintiff received four federal student loans in
the original aggregate principal amount of $6,117.00. Id. at Ex. 68; Def. Mot. at 3. In October
1986, the Michigan Department of Education found these loans to be in default. Compl. at~ 10,

1
The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
("Comp I."); plaintiffs motion of default judgment ("Pl. Mot. of Default J."); the government's motion to
dismiss ("Def. Mot."); plaintiffs response to the government's motion to dismiss ("Pl. Resp."); and
plaintiffs sur-reply ("Pl. Sur-Reply"). Unless otherwise noted herein, the facts recited are undisputed.

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Ex. 69; Def. Mot. at 3. Plaintiffs student loans were subsequently assigned to the DOE for
collection. Compl. at iii! 15, 20.

After a series of administrative proceedings, the DOE decided to garnish plaintiffs
Social Security disability benefit payments to satisfy the outstanding balance for the loans. Id. at
if 33, Exs. 12, 76. During the period July 2009 to November 2009, the DOE garnished $773.20
from plaintiffs Social Security disability benefit payments to repay these loans. Id. at if 87, Ex.
76; Def. Mot. at 3; Pl. Resp. at 12. During the period February 2013 to December 2015, the
DOE garnished an additional $9,408.00 from plaintiffs Social Security disability benefit
payments. Compl. at if 87; Pl. Mot. of Default J. at 6; Pl. Sur-Reply at Ex. 230.

On November 25, 2009, plaintiff challenged the DOE's decision to garnish his Social
Security disability benefit payments before the DOE. Compl. at Exs. 45-66; Def. Mot. at 3. On
March 18, 2010, the DOE denied plaintiffs challenge to the garnishment decision. Compl. at
Exs. 67-81. Thereafter, on May 19, 2015, the United States District Court for the Middle District
of Florida affirmed the DOE's garnishment decision. Topping v. Cohen, No. 2:14-CV-146-
FTM, 2015 WL 2383630, at *8 (M.D. Fla. May 19, 2015). 2 Subsequently, plaintiff commenced
this action.

B. Procedural Background

Plaintiff filed the complaint in this matter on November 5, 2015. See generally Compl.
Also on November 5, 2015, plaintiff filed a motion for leave to proceed in for ma pauperis. See
generally Pl. Mot. to Proceed In Forma Pauperis. After the government failed to file a timely
response to plaintiffs complaint, plaintiff also filed a motion styled as "motion for judgment of
default and petition for a partial writ of mandamus" on January 8, 2016. See generally Pl. Mot.
of Default J.; see also RCFC 55(a).

2
Plaintiff also filed numerous lawsuits in federal and state courts regarding the repayment of his federal
student loans. See, e.g., Topping v. United States Dep 't of Educ., No. 2:09-CV-396-FRM, 2011 WL
1158696 (M.D. Fla. Mar. 29, 2011); Topping v. United States Dep't of Educ., No. 2:09-cv-396-FTM-29,
2012 WL 397809 (M.D. Fla. Feb. 8, 2012), afj"d, 510 F. App'x 816 (11th Cir. 2013), cert. denied, 134 S.
Ct. 432 (2013); Topping v. United States, No. 2:12-cv-524-FTM-99SPC (M.D. Fla. Sept. 20, 2012);
Toppingv. United States, No. 2:12-cv-524-FTM-99SPC; Toppingv. Cohen, No. 2:14-CV-146-FTM,
2015 WL 2383630 (M.D. Fla. May 19, 2015). Plaintiff's claims were dismissed in each of these cases.

3
 On January 11, 2016, the Court issued a Show Cause Order directing the government to
explain why defendant failed to file a timely response to the complaint. See generally Show
Cause Order, Jan. 11, 2016. On February 1, 2016, the government filed its response to the
Court's Show Cause Order and a motion to dismiss plaintiffs complaint. See generally Def.
Resp. to Show Cause Order; Def. Mot.

On February 19, 2016, plaintiff filed a response to the government's motion to dismiss.
See generally Pl. Resp. On February 26, 2016, plaintiff filed a supplemental response to the
government's motion to dismiss. See generally Pl. Supp. Resp. On March 11, 2016, the
government filed a reply in support of its motion to dismiss. See generally Def. Reply. On
March 18, 2016, plaintiff filed a motion for leave to file a sur-reply to the government's motion
to dismiss. See generally Pl. Mot. for Leave to File. On March 28, 2016, the Court granted
plaintiffs motion for leave to file a sur-reply. See generally Order Granting Sur-Reply. On
April 11, 2016, plaintiff filed a sur-reply to the government's motion to dismiss. See generally
Pl. Sur-Reply. The government's motion to dismiss having been fully briefed, the Court
addresses the pending motion.

III. STANDARD OF REVIEW

A. Pro Se Litigants

Plaintiff is proceeding in this matter prose, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x 919,
925-26 n.2 (Fed. Cir. 2013). When determining whether a complaint filed by a prose plaintiff is
sufficient to survive a motion to dismiss, this Court affords more leeway under the rules to pro se
plaintiffs than to plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519,
520 (1972) (holding that prose complaints, "however inartfully pleaded," are held to "less
stringent standards than formal pleadings drafted by lawyers."); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014).

But, there "is no duty on the part of the trial court to create a claim which [plaintiff] has
not spelled out in his pleading." Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (brackets
existing; citations omitted). And so, while "a pro se plaintiff is held to a less stringent standard
than that of a plaintiff represented by an attorney, ... the pro se plaintiff, nevertheless, bears the
burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v.
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United States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359
(Fed. Cir. 2002)). Given this, the Court may excuse ambiguities, but not defects, in the
complaint. See Colbert v. United States, 617 F. App'x 981, 983 (Fed. Cir. 2015); see also
De mes v. United States, 52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded prose litigants
with respect to mere formalities does not relieve them of jurisdictional requirements.") (citation
omitted).

B. Jurisdiction And RCFC 12(b)(l)

When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(l), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant's favor. Erickson v. Pardus, 55 l U.S. 89, 94 (2007); see also RCFC 12(b)(l). But,
plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject
matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[ es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994) . The Tucker Act grants the Court
jurisdiction over:

[A]ny 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. § 1491(a)(l). 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 of Federal Claims] whenever the
substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a
substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute, or regulation; an express or implied
contract with the United States; or an illegal exaction of money by the United States. Cabral v.
United States, 317 F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d
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1167, 1173 (Fed. Cir. 2005)). "[A] statute or regulation is money-mandating for jurisdictional
purposes if it 'can fairly be interpreted as mandating compensation for damages sustained as a
result of the breach of the duties [it] impose[s]."' Fisher, 402 F.3d at 1173 (quoting United
States v. Mitchell, 463 U.S . 206, 219 (1983)).

C. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief
may be granted pursuant to RCFC l 2(b)( 6), this Court must also assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the non-movant's favor.
Erickson, 551 U.S . at 94; see also RCFC 12(b)(6). To survive a motion to dismiss pursuant to
RCFC 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is
plausible on its face ." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When the complaint fails to "state a claim to relief that is
plausible on its face," the Court must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation
omitted). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should
assume their veracity" and determine whether it is plausible, based upon these facts, to find
against defendant. Id. at 679 .

D. Fifth Amendment Takings

The United States Court of Federal Claims has exclusive jurisdiction to consider Fifth
Amendment takings claims in excess of $10,000. 28 U.S.C. § 1491(a); see also Acceptance Ins.
Cos. Inc. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007). The Takings Clause of the
Fifth Amendment guarantees just compensation whenever private property is "taken" for public
use. U.S. Const. amend. V. In order to have a cause of action for a Fifth Amendment takings, a
plaintiff must point to a protectable property interest that is asserted to be the subject of the
takings. See Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) ("Because the
Constitution protects rather than creates property interests, the existence of a property interest is
determined by reference to 'existing rules or understandings that stem from an independent
source such as state law."') (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972)). While takings claims are within the jurisdiction of this Court, a takings can only result
"when the underlying governmental action is valid and authorized." Wagstaff v. United States,
105 Fed. Cl. 99, 110 (2012); see also Eversleigh v. United States, 24 Cl. Ct. 357, 359 (1991) ("A

6
taking claim may only be based on the Government's rightful exercise of its property, contract,
or regulatory powers.") (citation omitted). And so, to establish a cognizable takings claim, a
plaintiff must concede the validity of the government's action in order to proceed. Tabb Lakes,
Ltd v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993).

E. Breach Of Contract Claims Against The United States

Lastly, the Tucker Act grants this Court jurisdiction to consider claims based "upon any
express or implied contract with the United States." 28 U.S.C. § 1491(a)(l). The Court does
not, however, possess jurisdiction to consider claims against the United States "based on
contracts implied in law." Mitchell, 463 U.S. at 218 (citing Merritt v. United States, 267 U.S.
338, 341 (1925)); see also Aboo v. United States, 86 Fed. Cl. 618, 626 aff'd, 347 F. App'x 581
(Fed. Cir. 2009). And so, to bring a valid contract claim against the United States under the
jurisdiction of this Court, the underlying contract must be either express or implied-in-fact.
Aboo, 86 Fed. Cl. at 626-27. In addition, to establish the existence of either an express or
implied-in-fact contract with the United States, a plaintiff must show: (1) mutuality of intent; (2)
consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind
the government in contract on the part of the government official whose conduct is relied upon.
Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012). A plaintiff must support this
claim with well-plead allegations going to each element of a contract. See Crewzers Fire Crew
Transp. Inc. v. United States, 741F.3d1380, 1382 (Fed. Cir. 2014) (holding that to invoke the
jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded allegation
that asserts its claims arose out of a valid contract with the United States); see also RCFC 9(k)
("In pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions of the contract or treaty on which the party relies.") .

IV. DISCUSSION

A. The Court Does Not Possess Jurisdiction To Consider Plaintiffs Claims

The government has moved to dismiss plaintiff's complaint upon two grounds. First, the
government argues that the Court does not possess subject-matter jurisdiction to consider any of
plaintiffs claims, because the claims are not based upon any substantive source of law that
would create a right for plaintiff to recover money damages from the United States. Def. Mot. at
6-8. The government also moves to dismiss the complaint for failure to state a claim upon which

7
relief may be granted, because plaintiff does not allege any facts in the complaint that would
entitle him to recover money damages from the government. Id. at 8-9. For the reasons
discussed below, the Court does not possess subject-matter jurisdiction to consider plaintiffs
claims and the complaint also fails to state a plausible takings claim. And so, the Court must
dismiss the complaint. RCFC 12(b)(l); RCFC 12(b)(6).

1. Plaintiff's Tort Claims Are Jurisdictionally Precluded

As an initial matter, the Court must dismiss plaintiffs tort law claims for lack of
subject-matter jurisdiction. RCFC 12(b)(l). In the complaint, plaintiff seeks to recover
monetary damages from the government as compensation for "life altering and limiting medical
consequences" that arose from the "extreme situational stress" that was "intentionally inflicted"
upon him by government employees as part of the "malicious defense of the [DOE's] choices
contrary to law." Compl. at Prayer for Relief,~ C. Plaintiff also alleges that his life has been
"altered and shortened," his "enjoyment of life destroyed," his "credit and reputation" ruined,
and his "business interests" destroyed, as a result of the government's actions. Id. at Prayer for
Relief,~ F.

The Court may not entertain plaintiffs claims because these claims clearly sound in tort.
McCauley v. United States, 38 Fed. Cl. 250, 265 (1997), aff'd, 152 F.3d 948 (Fed. Cir. 1998)
("Plaintiffs claims for monetary damages, which arise out of [the government's] alleged
negligent and wrongful conduct ... are claims clearly sounding in tort."); Ancman v. United
States, 77 Fed. Cl. 368, 373 (2007) ("Claims for pain and suffering, emotional distress, and
mental anguish sound in tort, and this court does not possess jurisdiction over tort claims.")
(citation omitted). It is well established that the Tucker Act explicitly places tort claims beyond
the jurisdiction of this Court. 28 U.S.C. § 1491(a) ("The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States ... not
sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010) ("[T]he Tucker Act
expressly excludes tort claims, including those committed by federal officials, from the
jurisdiction of the United States Court of Federal Claims.") (citation omitted). And so, the Court
must dismiss plaintiffs tort claims for lack of subject-matter jurisdiction. RCFC 12(b)(l).

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 2. Plaintiff's Due Process And Equal
Protection Claims Are Also Jurisdictionally Precluded

The Court is similarly without jurisdiction to entertain plaintiffs claims alleging
violations of the Due Process and Equal Protection Clauses of the Fifth and Fourteenth
Amendments. See generally Compl. This Court has long recognized that it does not possess
jurisdiction to consider claims based upon the Fifth Amendment's Due Process Clause, as this
provision is not a money-mandating provision of law. LeBlanc v. United States, 50 F.3d 1025,
1028 (Fed Cir. 1995); see also McCullough v. United States, 76 Fed. Cl. 1, 4 (2006) ("[T]he
Fifth Amendment is not a source that mandates the payment of money to plaintiff."). The Court
is similarly without jurisdiction to consider plaintiffs equal protection and due process claims
brought pursuant to the Fourteenth Amendment. See LeBlanc, 50 F.3d at 1028 (finding the Due
Process and Equal Protection Clauses of the Fourteenth Amendment do not constitute "a
sufficient basis for jurisdiction because they do not mandate payment of money by the
government"); see also Quailes v. United States, 25 Cl. Ct. 659, 664, aff'd, 979 F.2d 216 (Fed.
Cir. 1992) ("This court does not have jurisdiction ... because neither the due process or equal
protection clauses of the Constitution 'obligate the United States to pay money damages."')
(citation omitted). Because the Due Process and Equal Protection Clauses of the Fifth and
Fourteenth Amendments do not create a right to recover money damages from the United States,
plaintiff has not met his burden to establish that the Court possesses jurisdiction to consider his
constitutional claims. 3 RCFC l 2(b )(1 ). And so, the Court must also dismiss these claims.

3. The Court May Not Consider Plaintiff's APA
Claim And Claims For Injunctive And Declaratory Relief

To the extent that plaintiff asserts a claim under the Administrative Procedure Act
("APA"), the Court also does not possess subject-matter jurisdiction to consider this claim. In
the complaint, plaintiff alleges that the DOE's decision to garnish his Social Security disability
benefit payments is "arbitrary, capricious, without factual support, and contrary to law." Compl.
at~~ 1, 69. And so, plaintiff appears to seek judicial review of the DOE' s decision under the

3
Plaintiff also alleges a violation of the Fifth Amendment "as it relates to discrimination upon gender."
Compl. at~~ 112-18. It is well established that the Court does not possess jurisdiction to consider matters
involving gender discrimination. See Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) ("[T]here is
no Tucker Act jurisdiction in the Court of Federal Claims to entertain claims involving race, sex, and age
discrimination or other claims involving civil rights violations.") (citation omitted).

9
AP A. Id. The APA, however, grants exclusive jurisdiction to United States district courts to
review final agency decisions. See, e.g., Faison v. United States, 102 Fed. Cl. 637, 641 (2012);
Vereda, Ltda. v. United States, 271F.3d1367, 1374 n.8 (Fed. Cir. 2001) ("[T]he Court of
Federal Claims lacked the general federal question jurisdiction of the district courts, which
would have allowed it to review the agency's actions and to grant relief pursuant to the
Administrative Procedure Act, 5 U.S.C. §§ 701-706."). And so, the Court does not possess
jurisdiction to entertain plaintiffs AP A claim. RCFC l 2(b)(1 ).

In addition, the Court may not entertain plaintiffs requests for declaratory and injunctive
relief related to his challenge of the DO E's garnishment decision. As discussed above, plaintiff
seeks a declaratory judgment finding that the DOE's garnishment decision was arbitrary,
capricious, without factual support, and contrary to law. Compl. at~ 1. Plaintiff also requests
that the Court enter a declaratory judgment finding that title 20, United States Code, section
1095(a), which allows federal guaranty agencies to garnish student loan debtors' disposable
wages, is unconstitutional. Id.

It is well established that this Court may only grant general equitable relief in limited
circumstances involving certain bid protest matters and matters in which the equitable relief
requested is tied to a money judgment. See 28 U.S.C. § 1491(b)(l) (allowing the Court to grant
equitable relief in certain bid protest cases); see also James v. Caldera, 159 F.3d 573, 580 (Fed.
Cir. 1998) ("[T]he Court of Federal Claims has no power 'to grant affirmative non-monetary
relief unless it is tied and subordinate to a money judgment.'") (citation omitted). No such
circumstances exist here, because the relief that plaintiff seeks-the cancellation of his student
loan debt and a declaration that section 1095(a) is unconstitutional-does not constitute
monetary relief. See Johnson v. United States, 105 Fed. Cl. 85, 96 (2012) (finding that because
the cancellation of a debt does not constitute monetary damages, plaintiffs request for injunctive
and declaratory relief falls outside the jurisdiction of the Court of Federal Claims); see also
Wagstaff, 105 Fed. Cl. at 110 (dismissing plaintiffs request for injunctive and declaratory relief
because the Court does not have jurisdiction to enjoin the DOE's debt collection practices). And
so, the Court must also dismiss plaintiffs claims seeking injunctive and declaratory relief.
RCFC l 2(b )(1 ).

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 4. The Court Must Dismiss Plaintiffs Contract Claim

Finally, to the extent that plaintiff alleges a breach of an implied-in-fact contract claim
against the United States, the Court also must dismiss this claim for lack of subject-matter
jurisdiction. RCFC 12(b)(l). In his response to the government's motion to dismiss, plaintiff
alleges for the first time that he entered into an implied-in-fact contract with "the Judge and the
litigants" and the DOE's administrative hearing officer during the administrative and court
proceedings in which he challenged the DOE's garnishment decision. Pl. Resp. at 4, 9; see also
Pl. Sur-Reply at 13. To bring a valid implied-in-fact contract claim against the United States,
plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer
and acceptance; and (4) actual authority to bind the government in contract on the part of the
government official whose conduct is relied upon. Kam-Almaz, 682 F.3d at 1368. He must also
support this claim with well-plead factual allegations going to each element of a contract in the
complaint. See Crewzers Fire Crew Transp. Inc., 741 F .3d at 13 82 (holding that to invoke the
jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded allegation
asserting that his or her claims arose out of a valid contract with the United States); see also
RCFC 9(k) ("In pleading a claim founded on a contract or treaty, a party must identify the
substantive provisions of the contract or treaty on which the party relies.").

Plaintiff does not allege any of the elements of an implied-in-fact contract with the
United States in the complaint, or in his other filings. See generally Compl.; Pl. Resp.; Pl. Sur-
Reply. In fact, the complaint is devoid of any factual allegations to show that plaintiff entered
into a contract with the United States. See generally Compl. Given this, plaintiff has not
presented well-plead allegations that his claim arose out of a valid implied-in-fact contract with
the United States. Crewzers Fire Crew Transp. Inc., 741 F.3d at 1382; see also Toon v. United
States, 96 Fed. Cl. 288, 300 (2010) (finding plaintiff failed to invoke the jurisdiction of the Court
to consider his implied-in-fact contract claim because he did not allege the requisite elements of
a contract between himself and the United States). And so, dismissal of plaintiffs breach of
contract claim is also warranted. RCFC 12(b)(l).

B. The Court Must Also Dismiss Plaintiffs Takings Claims

The Court must also dismiss plaintiffs takings claims regarding the garnishment of his
Social Security disability benefit payments for lack of subject-matter jurisdiction and for failure

11
to state a claim upon which relief may be granted. In the complaint, plaintiff alleges that the
government engaged in the "unlawful takings" of his Social Security disability benefit payments
during the periods July 2009 to November 2009 and February 2013 to December 2015. Compl.
at~~ 33, 87; see also Pl. Sur-Reply at 2 ("The takings referenced in the complaint were Social
Security disability payments, not regular Social Security payments."). But, it is well established
that "[t]his Court does not hear claims for Social Security benefits, even when the plaintiff
alleges entitlement to relief under the U.S. Constitution." Thurman v. United States, No. 04-
1532T, 2005 WL 2065312, at * 1 (Fed. Cl. July 20, 2005); see also Marcus v. United States, 909
F.2d 1470, 1471 (Fed. Cir. 1990) (rejecting a plaintiffs claims for Social Security benefits
because the Claims Court lacked subject-matter jurisdiction under the Tucker Act). In this
regard, the Court has specifically held that a takings claim involving Social Security disability
benefit payments does not fall within the jurisdiction of this Court. See Brown v. United States,
No. 14-121C, 2014 WL 3686140, at *3 (Fed. Cl. July 16, 2014), aff'd, 607 F. App'x 983 (Fed.
Cir. 2015) (finding the Court lacked jurisdiction to consider plaintiffs takings claim for the
taking of his Social Security disability benefit payments); see also Treece v. United States, 96
Fed. Cl. 226, 231 (2010) ("Although the court of Federal Claims has jurisdiction over Fifth
Amendment takings claims under the Tucker Act, the court does not have jurisdiction over
plaintiffs claim because his claim amounts to an appeal of a denial of Social Security benefits.")
(citation omitted). And so, dismissal of plaintiffs takings claim related to his Social Security
disability benefit payments is also appropriate here. RCFC 12(b)(l).

Dismissal of plaintiff's takings claims for failure to state a claim upon which relief may
be granted is also warranted, because plaintiff fails to identify any authorized government action
that could have resulted in a takings in the complaint. RCFC 12(b)( 6). Rather, plaintiff alleges
in the complaint that the takings of his Social Security disability benefit payments occurred as a
result of unauthorized actions on the part of certain DOE employees. Compl. at~~ 6, 99-106
(alleging DOE employees conducted "kangaroo courts," "willfully delay[ed] an investigatory
hearing-for decades," made "false statements to lend credence to a fictional loan debt,"
concealed and tampered with witnesses, and made threats against plaintiff, all to "legitimize
takings of [plaintiffs] private property"). To properly bring suit under the Tucker Act, plaintiff
must concede the validity of the government action that is the basis of his takings claim. Tabb

12
Lakes, Ltd., 10 F.3d at 802. Because plaintiff does not do so here, he fails to state a plausible
takings claim in the complaint. RCFC 12(b)(6). 4

C. Plaintiff's Motion For Judgment Of Default
And Petition For A Partial Writ of Mandamus Is Moot

Plaintiff has also filed a motion styled as "motion for judgment of default and petition for
a partial writ of mandamus." See generally PI. Mot. of Default J. Because the Court has
determined that it must dismiss plaintiffs complaint for lack of subject-matter jurisdiction and
for failure to state a claim upon which relief may be granted, the Court denies plaintiffs motion
as moot. See, e.g., Wojtczak v. United States, No. 12-449C, 2012 WL 4903025, at *4 (Fed. Cl.
Oct. 17, 2012) ("Because plaintiff still has not raised allegations over which this court has
jurisdiction, the court denies these motions as moot."); Nathan v. United States, No. 15-708C,
2015 WL 6756515, at *4 (Fed. Cl. Nov. 4, 2015) (denying plaintiffs motion of default judgment
as moot after dismissing the case for failure to state a claim and for lack of jurisdiction).

D. Plaintiff's Motion For Leave to Proceed
In Forma Pauperis Satisfies The Statutory Requirement

As a final matter, plaintiff has also filed a motion to proceed in forma pauperis and he
requests a waiver of the Court's filing fee. See generally PI. Mot. to Proceed In Forma Pauperis.
The Court may authorize commencement of a suit without prepayment of fees when a person
submits an affidavit including a statement of all assets, a declaration that he or she is unable to
pay the fees, and a statement of the nature of the action and a belief that he or she is entitled to
redress. See 28 U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due to the Court's summary
disposition of this case, and plaintiffs pro se status, the Court finds that plaintiff satisfies the
statutory requirements to proceed in forma pauperis for the purpose of resolving the
government's motion to dismiss. And so, the Court grants plaintiffs motion to proceed informa
pauperis for this purpose.

4
Plaintiffs claims clearly sound in tort. See Earnest v. United States, 33 Fed. Cl. 341, 344 (1995)
("Claims based on unauthorized acts (wrongdoing) by government officials sound in tort."). As discussed
above, the Comi does not possess jurisdiction to consider claims sounding in tort. Hernandez, 96 Fed. Cl.
at 204.

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V. CONCLUSION

In sum, when read in the light most favorable to plaintiff, the complaint clearly
demonstrates that the Court does not possess subject-matter jurisdiction to consider any of
plaintiffs tort, constitutional, APA, or breach of implied-in-fact contract claims. In addition, the
Court does not possess jurisdiction to consider plaintiffs requests for declaratory and injunctive
relief.

The Court must also dismiss plaintiffs takings claim involving his Social Security
disability benefit payments, because the Court does not possess jurisdiction to consider such a
claim and plaintiff fails to state a plausible takings claim in the complaint.

Because the Court has determined that the complaint must be dismissed for lack of
subject-matter jurisdiction and for failure to state a claim upon which relief can be granted, the
Court also denies plaintiffs motion for judgment of default and petition for a partial writ of
mandamus as moot.

Finally, because of plaintiffs pro se status-and plaintiffs representation that he is
unable to pay the Court's filing fee-plaintiff may proceed in this matter in forma pauper is for
the limited purpose of resolving the jurisdictional issues raised by the complaint.

And so, for the foregoing reasons, the Court:

(1) GRANTS defendant's motion to dismiss;

(2) DENIES as moot plaintiffs motion for judgment of default and petition for a
partial writ of mandamus; and

(3) GRANTS plaintiffs motion to proceed informapauperis.

The Clerk's Office is directed to ENTER final judgment in favor of the government,
DISMISSING the complaint. No Costs.

IT IS SO ORDERED.

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