NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SUSAN FLANDER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1184
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00343-RHH, Senior Judge Robert
H. Hodges, Jr.
______________________
Decided: June 4, 2018
______________________
SUSAN FLANDER, Garland, TX, pro se.
DOUGLAS T. HOFFMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
______________________
2 FLANDER v. UNITED STATES
PER CURIAM.
Susan Flander appeals from the Court of Federal
Claims’ dismissal of her complaint for lack of subject
matter jurisdiction. We agree that the Court of Federal
Claims does not have jurisdiction over discharge of loans.
Although the Court of Federal Claims had jurisdiction
over Ms. Flander’s illegal exaction claim, we find that the
facts do not support her claim and therefore the court
should have granted the government’s summary judg-
ment motion. Accordingly, we affirm in part, and vacate
and remand in part.
I
Ms. Flander received ten Stafford loans to attend
DeVry Institute of Technology between 1995 and 1999.
Appx. 32–34. 1 These loans are in default and held by the
Department of Education for collection. Over the course
of several years, the Department of Education sent
Ms. Flander notices advising her that it intended to
collect the debt through the Treasury Offset Program
(TOP). 2 Appx. 67–68, 70. The Department of Education
began receiving TOP collections from Ms. Flander’s tax
refunds in 2015.
On March 13, 2017, Ms. Flander filed suit pro se in
the Court of Federal Claims, “request[ing] administrative
relief of arbitrary collection of tax refunds via offset by the
United States Department of Education.” Appx. 12. The
1 Citations to Appx. refer to the Appendix filed with
the United States’ response brief.
2 The Treasury Offset Program allows government
agencies to recover delinquent debts by receiving pay-
ments from an individual’s federal tax refund. See 31
U.S.C. § 3720A. The Secretary of the Treasury reduces an
individual’s tax refunds and uses those funds to pay the
debt.
Id.
FLANDER v. UNITED STATES 3
United States filed a motion to dismiss for lack of jurisdic-
tion, and a motion for summary judgment. The Court of
Federal Claims dismissed Ms. Flander’s complaint for
lack of jurisdiction and therefore found the motion for
summary judgment moot. Ms. Flander appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
II
We review de novo a dismissal for lack of jurisdiction.
Coast Prof’l, Inc. v. United States,
828 F.3d 1349, 1354
(Fed. Cir. 2016). “The Court of Federal Claims is a court
of limited jurisdiction.” Brown v. United States,
105 F.3d
621, 623 (Fed. Cir. 1997). The Tucker Act confers juris-
diction on the Court of Federal Claims over “any claim
against the United States founded either upon the Consti-
tution, 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). The Tucker Act does not, however,
create a cause of action, and “jurisdiction under the
Tucker Act requires the litigant to identify a substantive
right for money damages against the United States sepa-
rate from the Tucker Act itself.” Todd v. United States,
386 F.3d 1091, 1094 (Fed. Cir. 2004).
A
We agree that the Court of Federal Claims did not
have jurisdiction over plaintiff’s claims for discharge of
her student loan. Debt cancellation does not constitute
monetary damages under the Tucker Act, and thus lies
outside the jurisdiction of the Court of Federal Claims.
Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep’t of
Homeland Sec.,
490 F.3d 940, 945 (Fed. Cir. 2007).
“[T]here is a substantive difference between a plaintiff
seeking the return of money it already paid the govern-
ment and a plaintiff never having to pay the government
in the first place.”
Id. In the latter scenario, the plaintiff
4 FLANDER v. UNITED STATES
is not seeking to recover monetary damages from the
United States, but simply seeking relief of obligations to
pay the government.
Id. Accordingly, we affirm the
Court of Federal Claims’ dismissal of Ms. Flander’s claims
for discharge of her student loans.
B
Ms. Flander also asked the Court of Federal Claims to
award her amounts equal to the tax refunds that were
applied to her debts to the Department of Education. In
construing Ms. Flander’s complaint “liberally to maintain
jurisdiction of her case,” the court noted that Ms. Flander
may have an illegal exaction claim. Appx. 3. Neverthe-
less, the court ultimately concluded that it lacked jurisdic-
tion over Ms. Flander’s complaint, despite having
construed it as an illegal exaction claim. We find that the
trial court erred in dismissing the claim. We conclude,
however, that there is no genuine issue as to any material
fact pertaining to Ms. Flander’s illegal exaction claim.
Thus, the trial court should have granted the govern-
ment’s motion for summary judgment.
An illegal exaction “involves money that was improp-
erly paid, exacted, or taken from the claimant in contra-
vention of the Constitution, a statute, or a regulation.”
Norman v. United States,
429 F.3d 1081, 1095 (Fed. Cir.
2005) (internal quotation marks and citation omitted).
“To invoke Tucker Act jurisdiction over an illegal exaction
claim, a claimant must demonstrate that the statute or
provision causing the exaction itself provides, either
expressly or by necessary implication, that the remedy for
its violation entails a return of money unlawfully exact-
ed.”
Id. (internal quotation marks and citation omitted).
In the context of the Treasury Offset Program, “an illegal
exaction would arise if there was no legally enforceable
debt.” Kipple v. United States,
102 Fed. Cl. 773, 777
(2012).
FLANDER v. UNITED STATES 5
We construe Ms. Flander’s complaint to include alle-
gations that the TOP payments were used to cover educa-
tional loans that were discharged in bankruptcy. See
Appellant’s Op. Br. 6. Because Ms. Flander alleges the
debts were discharged, any offsets from her tax refunds
would constitute an exaction on a debt that is no longer
legally enforceable. Therefore, Ms. Flander has success-
fully pled a claim for illegal exaction. As a result, the
Court of Federal Claims erred in holding that it lacked
jurisdiction over Ms. Flander’s complaint.
The government argues that even if the Court of Fed-
eral Claims had jurisdiction over Ms. Flander’s illegal
exaction claim, we should affirm because the trial court
made sufficient findings to grant the government’s motion
for summary judgment. “A motion for summary judgment
is properly granted only if there is no genuine issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law.” McKay v. United States,
199 F.3d 1376, 1380 (Fed. Cir. 1999).
Ms. Flander alleges that her student loans were dis-
charged or paid in a 2002 bankruptcy. But, as the trial
court found, the undisputed evidence on record indicates
that the bankruptcy was dismissed prior to confirmation
and her creditors were not paid. Appx. 2–3; Appx. 117–
21. Ms. Flander does not provide any evidence that her
bankruptcy plan was confirmed and her debt was dis-
charged. Because Ms. Flander has failed to raise any
genuine issue as to whether her student loan debt was
discharged, the trial court should have granted the gov-
ernment’s summary judgment motion.
On appeal, Ms. Flander also alleges that TOP pay-
ments were used to offset debt to Child Support Services,
even though she does not have any dependents. Appel-
lant’s Op. Br. 9. In support, she cites a notice she re-
ceived from IRS.gov, which states:
6 FLANDER v. UNITED STATES
Your refund has been applied to a past due obliga-
tion such as child support, another federal agency
debt, or state income tax.
Appendix to Appellant’s Reply Br. 98 (emphasis added).
This notice does not state that her tax refunds were
applied to child support, but instead simply lists catego-
ries of possible past due obligations without explaining
which apply to her situation. Here, the record makes
clear that all of Ms. Flander’s tax refund offsets were
applied to the Department of Education debt. See Appx.
108. Ms. Flander does not provide any other evidence to
indicate that her tax refunds are being applied to a child
support debt. Accordingly, Ms. Flander cannot sustain an
illegal exaction claim on these facts. 3
III
For these reasons, we affirm the Court of Federal
Claims’ dismissal of Ms. Flander’s claim for discharge of
her student loans. We vacate the Court of Federal
Claims’ dismissal of Ms. Flander’s illegal exaction claim,
and we instead remand for entry of summary judgment in
favor of the government on that claim.
AFFIRMED-IN-PART AND
VACATED-AND-REMANDED-IN-PART
No costs.
3 For these reasons, we deny Ms. Flander’s motion
at Docket. No. 37, requesting this court to “acknowledge
Federal Tax Refund Fraud.”
