Payne v. United States

In the United States Court of Federal Claims

No. 17-1661T
Filed: August 27, 2018 F l L E D

AUG 2 7 2018

U.S. COURT OF

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EDWARD HAYWOOD PA‘(NE, JR., : FEDERAL CLAiMS
P|aintiff, * m § P|aintiff; illlotion to
v * Dismiss; Subject Matter
' * Jurisdiction; Tort C|aim;
UN|TED STATES, * Fraud C|aim; Tax Refund
* C|aim.
Defendant. =l=
sic
=l=

>l==i=*=!=*=i=*=i=*$***$=l=****

Edward Hayvvood Payne, Jr., Philadelphia, PA, LY.

Katherine R. Powers, Tria| ,L’lttorneyl Court of Federal C|aims Section, Tax Division,
United States Department of Justice, Washington, DC for defendant With her Were David
l. Pincus, Chief, Court of Federal C|aims Section, Tax Divisionl and Richard E.
Zuckerman, Principal Deputy Assistant Attorney Genera|.

OPlNlON

HORNl J.
FlND|NGS OF FACT

On October 27, 2017, M se plaintiff Edward Haywood Payne, Jr. filed a complaint
in the above-captioned case in Which plaintiff makes a vague claim concerning alleged
negligence by the internal Revenue Service (lRS) regarding an amended tax return,
allegedly filed in plaintiffs name and Without plaintiffs authorization Plaintiff’s complaint
states “[t]he grounds for my claim is negligence on [sic] part of the internal Revenue
Service (lRS). The l.R.S [sic] processed not only a fraudulent claim in my name, but
processed and paid a return to an unauthorized person. The amended return had no
signaturel let alone not even my signature." P|aintiff’s complaint also states:

The lnternal Revenue Service failed to protect my tax account, an inherent
right as a Citizen of the United States of America, and a Tax Payer of the
same. This failure resulted in my seeking of legal counsel causing me to
lose - $3,200.00, and suffering damages of at least $6,400.00.

(capitalization in original). Plaintiff also vaguely claims in his complaint that an attorney
named David Rulcin misled plaintiff With regard to an undefined “agreement." Plaintiff’s

complaint statesl “[t]he grounds for my claim against attorney David Rubin is that he
intentionaly [sic] misled me into signing an agreement and subsequently being liable to
pay his $3,200.00 fee by way of personal check. (USAA)." Plaintiff’s complaint aiso is
unclear regarding the amount of damages plaintiff is seeking Plaintiff alleges that the
iRS’s failure to protect plaintiffs tax account “resulted in my seeking of legal counsel
causing me to lose ~ $3,200.00, and suffering damages of at least $6,400.00.” Plaintiff
then requests under a separate section of his complaint titled “REL!EF" that the court
award plaintiff a “totai of $5,700.00,” Which plaintiff separates into “Attorneys Fees,
$3,200.00,” and “Ta)< Return $2,500.00.” (capitalization in original).

Attached to the complaint is a letter dated June 20, 2017 from the tRS to plaintiff
regarding plaintiffs “income Tax Liability” for the tax period ending on “12/2013.”
According to the June 20, 2017 IRS letter, the lRS Appeals Office in Phiiadelphia had
completed a review of plaintiffs “c|aim for abatement and/or refund of taxes.” The IRS
appears to have denied plaintiffs “ciaim” and noted in the June 20, 2017 letter that “[s]ince
no information was provided to support your ciaim, there is no basis to allow any part of
your claim.” Copied on the June 20, 2017 fetter Was “David N Rubin.” ln his complaint,
plaintiff does not provide additional details about the June 20, 2017 letter.

On January 30, 2018, defendant, United States, filed a motion for a more definite
statement pursuant to Rule 12(e) (2018) of the Rules of the United States Court of Federal
Ctaims (RCFC), requesting that the court order piaintiff to amend the complaint and
“provide more information about the nature of Piaintiffs suit." Specifica!ly, defendant’s
motion noted that the compiaint “omits the tax year in which Plaintiff alleges an
unauthorized person filed an amended return in Plaintiff’s name," and that “[p]laintiff has
not satisfied Rule 9(m) which requires, among other things, that the complainant identify
the tax year for which the refund is sought and provide a copy of the ciaim for refund to
the Court.” Defendant alleged that the deficiencies in plaintiffs complaint prevented
defendant from understanding plaintiffs claim, “including whether this Court has subject-
matterjurisdiction and whether Plaintiff intends to bring a claim for a tax refund and/or a
claim pursuant to 31 U.S.C. § 3343 (providing recovery for a lost or stolen check).”
(citation omitted).

On February 28, 2018, this court granted defendant’s motion for a more definite
statement, noting that plaintiffs complaint was vague and ambiguous and prevented
meaningful review. The court stated in its February 28, 2018 Order that "plaintiff shall
identify the time period in which plaintiff alleges ‘[t]he lRS processed not oniy a fraudulent
ciaim in my name, but processed and paid a return to an unauthorized person.’” The court
also stated that “if plaintiff is seeking a tax refund in the above-captioned case, plaintiffs
claim for a tax refund shall comply with RCFC 9(m)." Additionally, the court’s February
28, 2018 Order stated that plaintiff “shall specificaily indicate [in the amended complaint]
who is ‘attorney David Rubin’ and the role he played" in plaintiffs tax matters

in accordance with the February 28, 2018 Order for a more definite statement,
plaintiff filed a one and a half page, still vague, amended complaint on i\!larch 12, 2018.

The first paragraph of the amended complaint, regarding plaintiffs interactions with
attorney David Rubin, states:

On or about August 24, 2016 the plaintiff (Edward H. Payne Jr.) contacted
thr. Rubin via phone to discuss fraud on the personal tax account of the
plaintiff. As a result, a meeting was set up with lVlr. Rubin and the plaintiff
During the meeting lVlr. Rubin assured the plaintiff that the 2014 tax return,
which was filed about February 16, 2015, would be recovered of $2,509.00,
as well as damages from both parties responsible for the fraud $3,200.00
each, totaling $6,400.00. After being assured these conditions the plaintiff
signed an agreement with |Vfr. Rubin and wrote him a personal check for
$3,200.00, on the spot in his office iocated at 1500 JFK Boulevard Ste1900,
Philadelphia, PA. 19102. The purpose of this agreement was for attorney
David Rubin of Rubin & Rubin Tax Attorneys to provide full legal
representation of the plaintiff

(capitalization in originai). The second paragraph of plaintiffs amended complaint,
regarding a 2011 amended tax return, states:

The actual fraud occurred on the piaintiff’s 2011 . . . tax returnl where the
2011 tax return was amended by an unauthorized party and a dependent
child was added The original 2011 tax return was signed and authorized by
the plaintiff and was filed about i\/iarch 10, 2012, the 2011 amended return
was not signed or authorized by the plaintiff At these times 2011 and 2014
. . . the legal address ofthe plaintiff was 214 North 52nd Street Phi|adelphia,
PA. 19139. The tax iD # of the plaintiff is . . . and the refunds for 2011 and
2014 were fiied in Philadelphia, PA., however the frauduient return was file
[sic] iri New York, within the city limits of l\/lount Vernon the plaintiff believes
The fraudulent tax return listed an address of 214 North 42mcf Street
Philadelphia, PA., an addressed [sic] never used by the plaintiff nor never
reflected on the piaintiffs drivers [sic] license. A report was aiso filed with
the Philadeiphia Police 19th District iocated at 6059 Haverford Avenue
19151.

Aiong with his amended complaint, plaintiff included two copies of a letter dated
December 27, 2016 from the lRS to plaintiff The December 27, 2016 letter states in
relevant part:

Dear Taxpayer:

VVE COULDN’T AF_LOW YOUR CLA|iV|

VVe disallowed your claim for credit for the period iisted at the top of this
letter [Tax Period: Dec. 31, 2011].

VVHY WE CAN’T Ai_l_OVV YOUR CLAli\/i

V\ie have reviewed your claim of identity theft (ldentify Theft Affidavit or
police report) and supporting documentation and have determined that you
are not a victim of identity theft. it appears you or your representative filed
the submitted return and did not include ali of your income.

(capitaiization in original). The December 27, 2016 letter also contained information
informing the plaintiff as to how to appeal the lRS’s decision. P|aintiff’s amended
complaint does not discuss the attached December 27, 2016 letter.

On April 26, 2018, defendant filed a “Partial lVlotion to Dismiss for Lack of Subject-
lVlatter Jurisdiction” pursuant to RCFC 12(b)(1). Aithough the complaint and amended
complaint are unciear as to the claims plaintiff is actually asserting even in his amended
complaint, defendant’s partial motion to dismiss extrapolated plaintiffs complaint into four
separate claims According to defendant’s interpretation of piaintiff’s pleadings, plaintiff
had asserted four causes of action1

(1) [A] claim seeking damages against the lRS based in negligence; (2)
a claim against the individual attorney David Rubin relating to his
services; (3) a claim for a refund of taxes for the tax year ending in 2011,
due to fraud; and (4) though somewhat unclear, a claim for a refund of
taxes for the tax year ending in 2014.

Defendant argued that this court lacked subject matter jurisdiction over “Plaintiffs claim
seeking damages against the lRS for negligence and his ciaim against attorney David
Rubin,” and defendant requested that the court grant defendant’s partial motion to dismiss
as to these two claims for lack of subject matter jurisdiction.

Defendantfiled its current and updated partial motion to dismiss on June 28, 2016,1
asserting that it is now seeking to dismiss three of plaintiffs four claims |n the June 28,
2018 partial motion to dismiss, defendant indicates that plaintiff had made four separate
claims, as follows:

C|aim One - a “Claim for Negligence Against the iRS"

C|aim Two ~ a “Claim for Damages Against David Rubin”

C|aim Three - an “lnsufficiently Described C|aim Relating to Tax Year 2014”
Ciaim Four - a “Tax Refund for the ¥ear 2011”

(capitalization in original). Defendant moves to dismiss claims one and two for lack of
subject matter jurisdiction and claim three for failure to state a claim. in its motion,
however, defendant does not move to dismiss the fourth claim reiating to the 2011 tax
refund Defendant states that it “will move for summary judgment” on plaintiffs 2011 tax
refund claim in light of “additional material from the lRS regarding the denial of plaintiffs

1 Defendant filed an updated partial motion to dismiss after the court ordered defendant
to refile the motion to specify the tax years at issue in defendant’s motion.

4

claim for identity theft” that defendant has received since filing its original motion to
dismiss on April 26, 2018.

Subsequently, on August10,2018, plaintiff submitted to the court a document titled
“PLAINTIFFS MOT|ON FOR FULL JUDGEl\/lEN'l'.” (capitalization in original). Although
plaintiff titled his August 10, 2018 filing a “motion for full judgment,” the August 10, 2018
filing appears to be plaintiffs albeit untimely filed, response to defendant’s June 28, 2018
partial motion to dismiss On August 13, 2018, the court ordered plaintiffs filing to be filed
on the docket in the above-captioned case. ln plaintiffs August 10, 2018 filing, plaintiff
vaguely, alleges, without further explanation, that defendant “admitted to liability at least
from the perspectives that the Defendants claims for the tax returns were legitimate," and
asserts that defendant claimed “the responsibility to pay the claims for 2011 & 2014.”
Plaintiff also asserts that an “affidavit prepared by my former attorney David Rubin to my
knowledge contains all the correct dates and other pertinent information, because the
document Was accepted by this court." Plaintiff, howeverl never provides the court With
an affidavit from lVlr. Rubin or such an affidavit Plaintiff then states for the first time in his
August 10, 2018 filing that he is seeking “refunds” for the 2011 and 2014 years Plaintiff
states that:

As for the 2014 amended tax return being mistakenly identified as 2011 ,
This issue was addressed in the Plaintiffs amended complaint, David
Rubin’s affidavit and my personal tax file Which the court can subpoena As
for reference to the brief if this court reviews the phone logs, it Will be found
that and l.R.S. represented [sic] even told me,” [sic] lt is my identity in this
matter, therefore it is my money”. Due to fraudulent activity on my tax
account, both years 2011 and 2014 were adversely affected therefore
ciaims resuiting in refunds for both years shouid be allowed on behalf cf the
Plaintiff

Plaintiff, however, does not provide any additional information in his August 10, 2018 filing
regarding his unspecified 2011 and 2014 refund claims Plaintiff also alleges for the first
time in his August 10, 2018 filing that:

in this case a Treasury check was not merely stolen, my identity was as
supported by a Philadelphia Police Report. The Police Report states that
the address used was not mine, how could a check have been mailed to me
at my horne of record at the time concerning this claim?

Nor does plaintiff provide any additional information in his August10, 2018 filing regarding
a stolen check or stolen identity claim. Plaintiffs August 10, 2018 filing concludes:

VVHEREFORE, based on all the evidence and reasons set forth above,
Plaintiff request [sic] that the court grant Plaintiffs motion to be awarded ail
the funds in which the law will allow. (1) C|aim for negligence against the
l.R.S. C|aim for reimbursement of attorney’s fees paid to David Rubin; and
the claims pertaining to the tax years 2011 and 2014.

DlSCUSS|ON

The court recognizes that plaintiff is proceeding p_rg Y. When determining Whether
a complaint filed by gr_g §§ plaintiffs is sufficient to invoke review by a court, pg §§
plaintiffs are entitled to a more liberal construction of their pleadings w l-iaines v_
Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a B §§
complaint be held to “less stringent standards than formal pleadings drafted by lawyers”),
@t_i:g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);
i-lughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),
re_h’g deniedl 429 U.S. 1066 (1977); l\/latthews v. United States, 750 F.3d 1320, 1322
(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), M, 603 F.
App’x 947 (Fed. Cir.), gert_. denied1 135 S. Ct. 1909 (2015). l-iowever, “there is no ‘duty
[on the part] of the trial court . . _ to create a claim which [plaintiff] has not spelled out in
his [or her] pleading . , , Lenden v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in originai) (quoting Scodin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat’l Traveiers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); §
also Bussie v. United States, 96 Fed. Cl. 89, 94, a_f_f;d_, 443 F_ App’x 542 (Fed. Cir. 2011);
lVlinehan v. United States, 75 Fed. Cl. 249, 253 (2007). “While a ng§e_ plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the B Y
plaintiff nevertheless bears the burden of establishing the Court’s jurisdiction by a
preponderance of the evidence." Ri|es v. United States, 93 Fed. Cl. 163l 165 (2010) (citing
Hughes v. Rowe, 449 U.S. at 9; and Tavlor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh’q and reh’q gr_i banc denied (Fed. Cir. 2002)); see aiso Golden v. United
States, 129 Fed. Cl. 630, 637 (2016); Shelkofskv v_ United States, 119 Fed. Cl. 133, 139
(2014) (“[W]hile the court may excuse ambiguities in a prg §§ plaintiffs complaint, the
court 'does not excuse [a complaint’s] failures.’" (quoting l-lenke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995))} Harris v. United States, 113 Fed. Cl. 290, 292 (2013)
(“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with
respect to mere formalities does not relieve the burden to meet jurisdictional
reguirements.’" (quoting lVlinehan v. United States, 75 Fed. Cl. at 253)).

Additionaily, although “[a]n amended compiaint supersedes any previous
complaints," Tender Years Learninq Corp. v. United States, 128 Fed. Cl. 265, 272 (2016)
(citing Jet. lnc. v. Sewaqe Aeration Svs., 223 F.3d 1360, 1364~65 (Fed Cir. 2000)), the
court may liberally construe a pg § plaintiffs pleadings “‘to see if [a m Y] plaintiff has
a cause of action somewhere displayed.’” l_ong v. United States, 113 Fed. Cl. 7, 11 (2013)
(alteration in original) (quoting Ruderer v. United States, 188 Ct. Cl. 456, 468, 412 F.2d
1285, 1292 (1969)). This court and other federal courts have construed the amended
pleadings of a grg _s__e litigant as supplemental when the statements in the amended
document provide additional support to statements in the original pleading § Ayres v.
United Statesl 66 Fed. Cl. 551, 556 n.5 (2005) (permitting plaintiffs “Amendment to
Compiaint” to supplement, rather than supersede, the original complaint because the
“Amendment to Complaint” sought only to supptement plaintiffs prayer for relief), recons.
denied i_n jim 67 Fed. Cl. 776 (2005); see also Johnson v. interstate lqumt. Co., 962 F.
Supp. 2d 244, 250 (D.D.C. 2013) (“VVhile an amended complaint generally supersedes

the original, the court, mindful of Plaintiffs _B Y status, Will instead consider his
pleadings coilectively.”).2

Based on the record before this court, plaintiff filed his original complaint on
October 27, 2017 and his amended complaint on lVlarch 12l 2018. Plaintiffs lVlarch 12,
2018 amended complaint provides limited additional, albeit vague, information regarding
his asserted claims against the lRS and lVlr. Rubin. Because of plaintiffs p_r_o_ §§ status,
the court considers both complaints Even taken together, however, as discussed below,
there is insufficient description of plaintiffs claims for this court to take jurisdiction of
plaintiffs complaint

As previously noted, defendant has moved to dismiss two of the four claims
allegedly brought by plaintiff plaintiffs claim of negligence against the IRS and plaintiffs
claim against David Rubin, for lack of subject matter jurisdiction Defendant has moved
to dismiss for failure to state a claim plaintiffs possible refund claim regarding the 2014
tax year, but has not moved to dismiss plaintiffs possible refund claim regarding the 2011
tax year_ Regarding the negligence ctaim against the lRS and the claim against attorney
Rubin, “[s]ubject~matter jurisdiction may be challenged at any time by the parties or by
the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004)
(citing Fanninq, Phillips & l\/iolnar v. V\lest, 160 F.3d 717, 720 (Fed. Cir. 1998)); § M
lnt’l Elec. Tech. Corp. v. i-luqhes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The
Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this court as follows:

The United States Court of Federal C|aims 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. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allowjurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained See United States v. Navaio Nation, 556 U.S. 287,
289»90 (2009); see also United States v. l\/litchell, 463 U.S. 206, 216 (1983); Alvarado
Hosj:_)., LLC v. Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cntv., Ariz. v. United
States, 487 F.3d 871, 875 (Fed. Cir.), reh’q and reh’q en banc denied (Fed. Cir. 2007),

2 ln an unpublished opinion, the United States Court of Appeals for the Federal Circuit
acknowledged that an amended comptaint of a pig ge litigant may supplement the p_r_g _s__e_,-
litigant’s original complaint, See Younq v. United States, 497 F. App’x 53, 57 n.4 (Fed.
Cir. 2012) ("VVhile an amended complaint normally is deemed to supersede any
previously filed complaint, we liberally construe [plaintiff’s] gr_g sme_ pleadings and assume
for purposes of this opinion that he intended to supplement the original Complaint When
an Amended compiaint was filed . . . .”).

ge_rt. denied, 552 U_S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.
Cir. 1999). “Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . United States v. lVlitchell, 463 U.S. at 216; see also United States v.
VVhite Nlountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbvterian Hosp. v.
United States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114,
1116 (Fed. Cir.), M denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States,
566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s lVlushroom Serv., inc. v. United States. 521
F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed. Cl. 764, 768 (2014). ln Ontario Power Greneration1 lnc. v.
United States1 the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for Which jurisdiction is lodged in the United States Court of
Federal C|aims The court wrote:

The underlying monetary claims are of three types . . . First, claims alteging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses ciaims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. iCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007~08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’" (quoting
Clapp v. United States, 127 Ct. Cl_ 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal C|aims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastgort S.S., 372 F.2d at 1007.
C|aims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” ld__; see also [United States v_ l'l'estan, 424 U.S.
[392,] 401-02 [1976] (“V\lhere the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of C|aims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating”
statute.

Ont. Power Generation1 inc_ v. United States1 369 F.3d 1298, 1301 (Fed. Cir. 2004); §
also Samish indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); `i'wp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.”' United States v_
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White lVlountain Apache Tribe, 537 U.S. at 472; United
States v. l\/litchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), M denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself See United States v. Navaio
l\|ationl 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of iaw (e.g., statutes or contracts).”). “‘lf the statute is not
money~mandating, the Court of Federal C|aims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction.’” Jan's Helicopter Serv., lnc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greeniee Cntv., Ariz. v.
United States, 487 F.3d at 876); see also N.Y. & Presbvterian i~losb., 881 F.3d at 881;
Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence ofa money-
mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Price v.
United States, 133 Fed. Cl. 128l 130 (2017); Peoples v. United States, 87 Fed. Cl. 553,
565-66 (2009).

V\lhen deciding a case based on a tack of subject matterjurisdiction or for failure
to state a claim, this court must assume that all undisputed facts aileged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. §§ Erickson
v, Pardus, 551 U.S. at 94 (“[VV]hen ruling on a defendant’s motion to dismiss a judge
must accept as true all of the factual allegations contained in the complaint.” (citing M
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506l 508 n.1 (2002)))); see also Frani