Sherman v. United States ( 2018 )

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No. 17-1830C
Fifed: August 20,20'18
FILED
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LEELA H. SHERMAN, U.S. COURT OF
FEDERAL CLAIMS
Plaintiff,
Pro Se Plaintiff; Motion To Dismiss;
v. Subject Matter Jurisdiction ; Federal
Retirement Benefi ts Claim.
UNITED STATES,
Defendant.
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Leela H. Sherman, pro se, Laguna Beach, CA.
Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil
Division, united states Department of Justice, washington, D.c. for defendant. with him
were Franklin E. white, Jr., Assistant Director, commercial Litigation Branch, civil
Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil
Division, and Chad A. Readler, Acting Assistant Attorney General.
OPINION
HORN, J.
FINDINGS OF FACT
On November 20,2017, pro se plaintiff Leela H. Sherman, who is a former
employee of the Internal Revenue Service (lRS), filed a complaint in this court. The
plaintiff claims that "[t]his is an action for eligible annuity of the plaintiff and her spouse',
and that "[h]er only claim is for estimate of her annuity." The plaintiff indicates that she is
"currently receiving FECA [Federal Employees' compensation Act] benefits" from the
office of workers' compensation Programs (owcp). The plaintiff indicates that she is
not cunently receiving an annuity under the Federal Employees Retirement system
(FERS), but that the plaintiff seeks an "estimate" of her FERS retirement annuitv so that
plaintiff may make "a meaningful decision" regarding whether she wants to tontinue
receiving FECA benefits or receive FERS retirement benefits instead.
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The plaintiff states that she previously served as a "Senior Internal Revenue Agent"
with the IRS and alleges that a "TRE"1 supervisor, who the plaintiff alleges was not the
plaintiff's supervisor, "negligently generat[ed]" a Standard Form 50 (SF 50), Notice of
Personnel Action, and a Standard Form 52 (SF 52), Request for Personnel Action,2
separating the plaintiff from her employment with the IRS "on or around Nov. 201 1."3 Both
the plaintiff and the defendant indicate that the SF 50 document at issue was the
document which separated plaintiff from her IRS employment, that the document was
generated in November 2011, and that the effective date of the SF 50 was retroactively
set to January 3, 2010. The plaintiff claims that she did not receive notice that the IRS
would generate the SF 50, thereby separating plaintiff from her employment, until on or
around November 28,2011 , when the plaintiff alleges that "third party record Keeper TSP
[Thrift Savings Plan] fund" sent the plaintiff a letter which informed her of the retroactive
separation. The plaintiff argues that the SF 50 "den[ied] her and her spouses [sic] the
protection to their rights of benefits," and that, consequently, the defendant "separat[ed]
the plaintiff without following any due process."a The plaintiff further states that the SF 50
"suppressed the fact that the plaintiff was under [sic] workers' compensation program" at
the time plaintiff received notice of her separation on or around November 28,20j1, and
that, at the time of notification, the plaintiff "should have been placed as on Leave without
pay status." (capitalization in original).
The plaintiff alleges in her complaint that, prior to her obtaining knowledge of the
retroactive separation on or around November 28, 2011, the plaintiff submitteo an
application for disability retirement, which the plaintiff states "was ignored bv the agency."s
According to the plaintiff, she suffered a workplace injury in 2008 and had surgery on
January 15, 2009, followed by two months of "light duty" employment, during which time
1 The plaintiff states that the defendant is "the united states of America acting by and
through the Department of Treasury and Office of Personnel Management,' (OpM), but
plaintiff's complaint interchangeably "refer[s] to the Defendant as the'united states',
'TRE', 'OPM' or 'Defendant'." The plaintiff does not define "TRE," but the plaintiff appears
to use "TRE" as an abbreviation for the Department of the Treasury.
2 The plaintiffs complaint initially refers to a "sF 50 and SF55" and then subsequenily
characterizes the forms as a "sF 50" and a "sF52." Because plaintiff only once mentions
a "SF55," plaintiffs reference to a "SF55" may have been a mistake.
3 According to the defendant, the IRS generated the SF 50 on November 21,2011.
a In her opposition to defendant's
motion to dismiss, the plaintiff states that she is not
asserting a due process claim against the defendant.
5 The plaintiff's complaint does not indicate when
or to which office she allegedly
submitted her application for disability retirement. The plaintiff's opposition to defendant's
motion to dismiss only states that the "agency separated her [plaintiffl while she was
attempting to obtain disability retirement (by submitting her OPM disability retirement form
with the manager for onward submission)."
the plaintiff was compensated by the OWCP. The plaintiff claims that, "[w]hile her timely
application for disability appears to have been not processed by the agency, the SF 50
document deprived the plaintiffs ability to apply for disability since her separation was
about 2 years advanced retroactively." The plaintiff states that she has taken steps to "set
her service record right," but that "[t]he agency insisted that the action is warranted
because of an agreement the plaintiff had with the agency settling previous non [sic]
selection and discrimination cases."
According to plaintiff, she has contacted the OPM "many times from 2012"
regarding her retirement benefits. The plaintiff alleges that on January 30, 2012, she
received a letter from the OPM that placed her in the "wrong retirement system," and
asserts that the January 30,2012letter stated that "the plaintiff belonged to CSRS [Civil
Service Retirement Systeml and giving service dates and contributions that were all
wrong and substantially distorting her benefits under FERS." The plaintiff claims that she
contacted the OPM regarding this alleged error, but did not receive a response from the
OPM. The plaintiff also states that she has previously contacted the OPM by phone and
by mail regarding her retirement annuity estimate but alleges that the "OPM has not
answered to any of her inquiries."
After the IRS separated the plaintiff from her employment in November 201 1 with
a retroactive separation date of January 3, 2010, the plaintiff challenged her separation
before the Merit Systems Protection Board (MSPB), alleging that she had not voluntarily
resigned from the lRS. See Sherman v. Dep't of the Treasurv, No. SF-0752-12-0193-l-1 ,
2012WL682673 (M.S.P.B. Feb. 13, 2012).The MSPB administrative judge found that
the plaintiff and her employer, the lRS, had entered into a Stipulation for Compromise
(Stipulation) in May 2009. See id. The MSPB administrative judge noted that the
Stipulation contained a clause stating that the plaintiff would "retire or resign from the IRS
on or about December 26, 2009, but not later than the start of the first pay period of
calendar year 2010, as a Revenue Agent, GS '14-3." ld. (quoting the Stipulation). The
administrative judge also noted that the clause in the Stipulation stated that the plaintiff's
agreement to retire was "irrevocable and supported by valuable consideration," and, if the
plaintiff failed to retire "on or about December 26,2009, but not later than the start of the
first pay period of calendar year 2010," the plaintiffs "signature on this document shall
serve as her resignation from employment with the lRS." ld. (quoting the Stipulation). The
administrative judge determined that the plaintiff had failed to retire by the first pay period
of the calendar year of 2010, as the plaintiff was required to do under the Stipulation. See
id. According to the administrative judge, after the plaintiff failed to retire, "the agency
processed a resignation on her behalf in November 2011 and "separated her from the
service flRSl retroactive to January 3,2010.'ld. Ultimately, the MSPB administrative
judge concluded that the MSPB did not have jurisdiction over the plaintiffs claim because
the plaintiff had resigned voluntarily under the terms of the Stipulation. See id. The plaintiff
filed a petition for the MSPB to reconsider its initial decision, which the MSPB denied.
SeeShermanv. Dep'tof theTreasurv, 118M.S.P.R.433(2012), affd, Shermanv. Merit
Svs. Prot. Bd., 530 F. App'x 940 (Fed. Cir.), reh'q denied (Fed. Cir. 2013). On February
8,2013, the plaintiff appealed the MSPB's decision to the United States Court of Appeals
for the Federal Circuit, which affirmed the decision of the MSPB in an unpublished
opinion. See Sherman v. Merit Svs. Prot. Bd., 530 F. App'x 940, 942 (Fed. Cir.) (per
curiam), reh'q denied (Fed. Cir. 2013).
Subsequently, on October 31,2016, the plaintiff filed a complaint against the
Secretary of the Department of the Treasury in the United States District Court for the
Central District of California, alleging that the IRS had violated the Age Discrimination in
Employment Act (ADEA), the Rehabilitation Act, Title Vll of the Civil Rights Act, and the
FECA when the IRS separated the plaintiff from her employment. See Sherman v.
Mnuchin, No. SA CV 16-1979 PA (KESx), 2017 WL 1927876, at -1 (C.D. Cal. May 9,
2017'1. The United States District Court for the Central District of California indicated the
plaintiff's complaint was based on a "right to sue" letter issued by the Department of the
Treasury after the Department of the Treasury had dismissed for lack of timeliness an
Equal Employment Opportunity (EEO) complaint made by the plaintiff against the
Department of the Treasury.6 ld. at .2. In the United States District Court for the Central
District of California, the plaintiff asserted that "she did not resign," "that the separation
forms were improperly completed," "that she was not given disability retirement
paperwork as requested," and that she was denied "a within-grade step increase." ld. The
plaintiff alleged that the actions and omissions of the IRS "were discriminatory and have
prevented her [plaintiffl from receiving certain benefits." ld. The United States District
Court for the Central District of California found that the plaintiff's claims under the ADEA,
the Rehabilitation Act, and Title Vll of the Civil Rights Act were all barred because the
plaintiff had failed to exhaust her administrative remedies within the statutory period for
EEO claims, and that the court lacked jurisdiction over the plaintiffs FECA claim because
the plaintiff had not raised a constitutional challenge to the Secretary of Labor's decision
regarding her FECA benefits or claimed a violation of a "clear statutory mandate or
prohibition." ld. at .3-5 (citing Markham v. United States, 434 F.3d 1185, 1'187 (9th Cir.
2006)). Additionally, the United States District Court for the Central District of California
found that the United States Court of Appeals for the Federal Circuit's decision in
Sherman v. Merit Svstems Protection Board, 530 F. App'x 940, affirming the MSPB's
finding that the plaintiff had resigned voluntarily under the Stipulation, barred the United
States District Court for the Central Dishict of California from considering whether the
plaintiff had voluntarily resigned from the lRS. ld. at -4-5. The United States District Court
for the Central District of California also found that the earlier Stipulation entered into by
plaintifi and the IRS barred the court from reviewing any of the plaintiffs discriminatory
termination claims. See id. at -5.
6The Department of the Treasury had rejected the plaintiff's EEO complaint on August '1 ,
2016, because the plaintiff had failed to contact her EEO counselor within forty-five days
of the alleged discriminatory conduct. See Sherman v. Mnuchin,2017 WL 1927876, at
.2. An EEO complaint that falls outside of the forty-five day period after the alleged
discriminatory conduct may be dismissed entirely by the agency. 29 C.F.R.
$ 1614.107(a)(2) (2017). When a federal agency issues a final decision dismissing an
EEO complaint in its entirety under 29 C.F.R. S 1614.107, the agency issues a right to
sue letter informing the claimant of his or her right to appeal the claim to the Equal
Employment Opportunity Commission (EEOC) or to file a civil action in federal dishict
court. See 29 C.F.R. S 1614.110(b) (2017).
On June 9,2017, one month after the United States District Court for the Central
Dishict of California issued its decision in Sherman v. Mnuchin, the plaintiff filed a
"retirement claim" with the OPM.7 On November 20.2017. before the OPM had
responded to the plaintiff's "retirement claim," the plaintiff filed her complaint in this court
in the above-captioned case. In her complaint in this court, the plaintiff requests that she
be awarded "all the pension benefits as per FECA regulations," "costs and attorney fees,
when represented,"8 and "other relief as the Court deems just and proper." According to
the plaintiffs complaint, "[v]enue in this court is proper under [sic] Tucker Act" and the
"statutory basis for invoking jurisdiction is 5 U.S.C., and FECA a money-mandating
statute."s The plaintiff asserts that she has suffered damages of "not less than"
$183,456.00 and that her spouse has suffered damages of $65,856.00 in "past, present
and future benefits in terms of monetary losses if the annuity is calculated per the SF50."
The plaintiff attached a document to her complaint containing the plaintiff's self-authored
calculations of her claimed amounts in the above-captioned case for her and her spouse's
alleged monthly retirement annuity estimates under "Regular Retirement" and "disability
retirement. "
On January 19, 2018, the defendant filed a motion to dismiss the plaintiff's
complaint in the above-captioned case pursuant to Rule 12(bX1) (2018) of the Rules of
the United States Court of Federal Claims (RCFC) for lack of subject matter jurisdiction.
The defendant asserts that the plaintiff's claim concerning her civil service retirement
benefits "must be raised initially with OPM, and OPM's decisions may be appealed only
to the MSPB, subject to further review by the Federal Circuit." Additionally, the defendant
states that any of the plaintiffs claims relating to the FECA or for an "injury incurred in the
performance of her duties" must be raised with the Secretary of Labor and further asserts
that this "Court lacks jurisdiction to entertain stand-alone due-process claims because the
Due Process Clauses of the Fifth and Fourteenth Amendments are not monev-
mandating. "
7The plaintiffs complaint does not provide additional information regarding the details of
plaintiff's "retirement claim" submitted on June 9,2017.In her opposition to defendant's
motion to dismiss, however, the plaintiff states that "[h]er application was for Deferred
Retirement."
8 Plaintiff is appearing pro se in the above-captioned case currently before the court,
although she did seek appointment of a pro bono attorney.
s The plaintiff does not identify in her complaint which sections of Title Five of the United
States Code or of the FECA she is attempting to rely on as the basis for jurisdiction. The
only indication that the plaintiff gives as to which sections of Title Five of the United States
Code she is refening is in her opposition to defendant's motion to dismiss, in which
plaintiff declares that "5 U.S.C. S $ 8101 to 9009" is a money-mandating statute and
further states under the heading "Money Mandating Statute" that "5 U.S. Code gg 8401
and 84O2 deals [sic] with [sic] Federal Employees' Retirement System."
The defendant attached to its motion to dismiss two letters which the defendant
asserts both were sent to the plaintiff by the OPM on January 16,2018 (the OPM election
letters), after plaintiff filed her complaint in this court. According to the defendant, "[t]he
letters are dated January 13 and January 18, 2018, but were all sent on January 16,
2018." (internal reference omitted). The defendant asserts that the OPM has not yet
adjudicated plaintiffs June 9, 2017 claim, but that the OPM did send the plaintiff the two
OPM election lefters requesting that the plaintiff make certain elections regarding her
FECA benefits and retirement benefits. In the OPM election letter dated January 13,2018,
the OPM notified plaintiff that her "CSRS or FERS annuity" has been suspended while
the plaintiff receives compensation through the OWCP and requested that plaintiff make
an election to receive either the plaintiff's FECA benefits through the OWCP or her FERS
annuity, which the OPM indicated would be a monthly benefit of $1,353.00. The January
13,2018 OPM election letter also contained a form on which the plaintiff could make an
election between her FECA benefits and her FERS benefits. In the OPM election letter
dated January 18,2018, the OPM requested that the plaintiff make elections regarding
her health benefits and life insurance and included a form for the olaintiff to make such
elections, as well as an application for "lmmediate Retirement."
On June 4,2018, after the plaintiff filed, and the court granted, multiple requests
for enlargement, the plaintiff filed her opposition to defendant's motion to dismiss in this
court. In her opposition to defendant's motion to dismiss, the plaintiff states that she has
"no claim based on the Federal Employees Compensation Act," indicates that she has
not asserted a due process claim, and states that she "has no disability annuity retirement
claim." Rather, the plaintiff argues that her "only claim" is for an "estimate of her annuity
which is covered by other Sections of 5 U.S.C." and that her claims "rely on the review of
the OPM estimate of her annuity whether or not enhanced rate is applied in the calculation
of her monthly pension benefit." The plaintiff argues that she should be eligible for an
"enhanced rate" in the computation of her FERS retirement annuity because she currently
receives compensation through the OWCP,10 and that the $1,353.00 per month annuity
offered by the OPM in the OPM election letters is "grossly and unfairly understated." The
plaintiff also argues that the life insurance amount outlined in the OPM's January 18,2018
letter is "grossly understated." The plaintiff further asserts that the OPM election letters
contain "no information on howthe annuity was estimated and what documents it is based
on," and that "[t]he estimate which is supposed to be the main tool for the plaintiff to base
a meaningful decision on whether she should continue with her Federal Employees'
10The "enhanced rate" to which plaintiff appears to refer is outlined in an OPM "Benefits
Administration Lettef' dated December 7,2004, which the plaintiff attached as an exhibit
to her opposition to defendant's motion to dismiss. The "Benefits Administration Letter"
provides that certain federal employees are eligible for an "enhanced annuity" after
Congress passed Public Law 1 08-92, which is now codified at 5 U.S.C. $ 8a15(n) (2012).
The "Benefits Administration Letter" indicates that "[t]he law allows a 1 percent annuity
enhancement for certain Federal Employees' Retirement System (FERS) employees
receiving disability compensation from the Office of Workers' Compensation Programs
(OWCP)," and summarizes the eligibility requirements forthe enhanced annuity and how
the enhanced annuity is computed.
Compensation Benefits(FECA) [sic] or receive Civil Service Annuity (CSRS or FERS) is
not certified." According to Ms. Sherman, the "OPM's failure to provide the plaintiff an
estimate deprived the plaintiff to appeal internally so far," but the annuity estimate in the
OPM election letters has allowed her to "file for reconsideration with the Office of Merit
Systems Oversight and Effectiveness." The plaintiff alleges that she filed a claim with the
Office of Merit Systems Oversight and Effectiveness on March 23,2018, but that "[t]he
OPM so far hasn't even referred her to a Soecialist."
The plaintiff also requests in her opposition to defendant's motion to dismiss that
this court order the filing of an administrative record from the OPM. The plaintiff claims
that the OPM election letters attached to the defendant's motion to dismiss are insufficient
under RCFC 52.1 (2018\11 because the OPM election letters are "not certified" and
contain "one sentence on the estimate and 2 words on Insurance from Plaintiff's civil
service records." The plaintiff states that she "requires all records of her personnel file as
well as all records pertaining to the estimate of her annuity to decide her claim" and
requests that this court "order the filing of [sic] administrative record." The plaintiff also
requests leave to amend her complaint "[s]hould this Court were to deem [sic] that the
plaintiff provide further evidence to establish jurisdiction and that could be remedied by
amending the complaint with facts sufficient to establish jurisdiction upon which relief can
be granted after the administrative file is filed." (emphasis in original).
On June 12, 2018, the defendant filed a reply in support of its motion to dismiss,
in which the defendant notes that the plaintiff stated in her opposition to defendant's
motion to dismiss that she is not pursuing a FECA claim or a due process claim in the
above-captioned case. The defendant reasserts that this court lacks jurisdiction over the
plaintiff s claim that her monthly retirement annuity should be higher because, contrary to
the plaintiffs position, Title 5 of the United States Code is not money-mandating. The
defendant, again, asserts that "claims regarding the amount of a Federal retirement
annuity must be raised initially with the Office of Personnel Management (OPM), and
OPM's decisions may be appealed only to the Merit Systems Protection Board (MSPB),
subject to further review by the Federal Circuit." The defendant also argues that the
government is not required to file an administrative record because "[p]roceedings before
OPM are irrelevant here because the Court lacks jurisdiction to review any decisions of
OPM regarding Ms. Sherman's retirement benefits."l2 Finally, the defendant asserts that
the plaintiff should not be granted leave to amend her complaint because the
"jurisdictional problems here are incurable."
11 RCFC 52.1(a) states: "When proceedings before an agency are relevant to a decision
in a case, the administrative record of those proceedings must be certified by the agency
and filed with the court." RCFC 52.1(a).
12 Because, as is discussed below, plaintiffs case is being dismissed for lack of
jurisdiction, plaintiffs request for administrative record documents is moot.
DrscussroN
The court recognizes that plaintiff is proceeding pro se. When determining whether
a complaint filed by pro se plaintiffs is sufficient to invoke review by a court, pro se
plaintiffs are entitled to a more liberal construction of their pleadings. See Haines v.
Kerner,404 U.S. 519,520-21 (1972) (requiring that allegations contained in a pro se
complaint be held to "less stringent standards than formal pleadings drafted by lawyers"),
reh'q denied, 405 U.S. 9aB (972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Huqhes v. Rowe,449 U.S. 5,9-10 (1980); Estelle v. Gamble,429 U.S. 97, 106 (1976),
reh'q denied,429 U.S. 1066 (1977); Matthews v. United States,750 F.3d 1320, 1322
(Fed. Cir.2014); Diamond v. United States, 115 Fed. C|.516,524(2014), affd,603 F.
App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). However, "there is no'duty
[on the part] of the trial court . . . to create a claim which [plaintiffl has not spelled out in
his [or her] pleading . . . ."'Lenoen v. United States, 100 Fed. C|.317, 328 (2011)
(alterations in original) (quoting Scoqin v. United States,33 Fed. Cl.285,293 (1995)
(quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167,1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd,443 F. App'x 542 (Fed. Cn.2011);
Minehan v. United States, 75 Fed. Cl.249,253 (2007). "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. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Huqhes 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's and reh'q en banc denied (Fed. Cir. 2002)); see also Golden v. United
States, 129 Fed. C|.630,637 (2016); Shelkofskvv. United States, 119 Fed. Cl 133, 139
(2014) ('[Wlhile the court may excuse ambiguities in a pro se plaintiffs complaint, the
court'does not excuse [a complaint's] failures."'(quoting Henke v. United States, 60 F.3d
795,799 (Fed. Cir. 1995)); Hanis v. United States, 113 Fed. Cl. 290, 292 (2013)
("Although plaintiff's pleadings are held to a less stringent standard, such leniency'with
respect to mere formalities does not relieve the burden to meet jurisdictional
requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)).
The defendant has moved to dismiss the plaintiffs complaint under RCFC 12(bX1)
because, according to the defendant, this court does not have subject matter jurisdiction
over the plaintiff s retirement claims involving the FERS. "Subject-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.) (citing Fanninq. Phillips & Molnar v. West, 160
F.3d717,720 (Fed. Cir. 1998)), reh'q and reh'q en banc denied (Fed. Cir. 2004), cert.
denied 545 U.S. 1127 (2005); see also Int'l Elec. Tech. Corp. v. Huqhes Aircraft Co., 476
F.3d 1329, 1330 (Fed. Cu.2007). The Tucker Act, 28 U.S.C. S 1491 (2012), grants
jurisdiction to this court as follows:
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. S 1a91(aX1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction 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);
United States v. Mitchell, 463 U.S. 206,216 (1983); see also Alvarado Hosp.. LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir.2017\; Greenlee Ctv.. Ariz. v. United States,487 F.3d
871,875 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.2007), cert. denied, 552
U.S. 1142 (2008); Palmerv. 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. Mitchell, 463 U.S. at 216; see also United States v. White Mountain
Apache Tribe, 537 U.S. 465,472 (2003); N.Y. & Presbvterian Hosp. v. United States, 881
F.3d877,881 (Fed. Cir.2018); Smith v. United States,709 F.3d 1114, 1116 (Fed. Cir.),
cert. denied,571 U.S.945 (2013); RadioShack Corp. v. United States,566 F.3d 1358,
1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. 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,
1'18 Fed. Cl.764,768 (2014). In Ontario Power Generation, Inc. v. United States, 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 Claims. The
court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
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 claims 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. lCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as ctaims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. United States , 127 Ct. Cl. 505, 1 17 F. Supp. 576, 580 (1 954)) . . . .
Third, the Court of Federal Claims 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." Eastport S.S., 372 F.2d at 1007.
Claims 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 lUnited States v. lTestan, 424 U.S.
1392,1 401-02 t(1976)l ('Where 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 Claims 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 Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.2005); Twp.
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.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at472;United
States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of taw granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts)."). "'lf the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv.. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Ctv., Ariz. v.
United States, 487 F.3d at 876); see also N.Y. & Presbvterian Hosp.,881 F.3d at 881;
Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence of a money-
mandating source is "fatal to the court's jurisdiction under the Tucker Act."); Price v.
United States, 133 Fed. Cl. 128, 13AQ017); Peoplesv. United States,87 Fed. C|.553,
565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, 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. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]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 Bell
Atl. Corp. v. Twomblv, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States,B42F.3d 1246, 1249
(Fed. Cir. 2016) ("ln deciding a motion to dismiss, a court is required to accept as true all
factual allegations pleaded." (citing Ashcroft v. lqbal, 556 U.S. 662,678 (2009))); Fid. &
Guar. lns. Underwriters, Inc. v. United States,805 F.3d 1082, 1084 (Fed. Cir.201S);
Trusted Inteqration, Inc. v. United States.659 F.3d 1159, 1163 (Fed. Cir.2011).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiffs claim, independent of any
defense that may be interposed." Holley v. United States,124F.3d 1462,1465 (Fed. Cir.)
10
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1 (1983)), reh'q
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaullev Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
7 13 (2010). A plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the pleader is entitled to relief." RCFC 8(aX1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2018); see also Ashcroft v. lqbal, 556 U.S. aI677-78 (citing Bell Atl. Corp. v. Twomblv,
550 U.S. at 555-57, 570). To properly state a claim for relief, "[c]onclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim." Bradlev v.
Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel
Corp.,501 F.3d"1354, 1363 n.9 (Fed. Cir.2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. WRrcHr AND A. M|LLER, FEDERAL PRACICE ANo PRoCEDURE S 1286 (3d
ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981) ("[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss."), affd, 460
U.S. 325 (1983). 'A plaintiffls factual allegations must'raise a right to relief above the
speculative level'and cross'the line from conceivable to plausible."' Three S Consultinq
v. United States, '104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twomblv, 550
U.S. at 555), aff d,562 F. App'x 964 (Fed. Cir.), reh'q denied (Fed. Cir. 2014). As stated
in Ashcroft v. lqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not do.' 550 U.S. at 555. Nor does a
complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."'
Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555).
As indicated above, the defendant asserts in its motion to dismiss that this court
"lacks jurisdiction to entertain Ms. Sherman's claims regarding her retirement pension."
The defendant argues that any claims relating to the plaintiffs retirement pension "must
be raised initially with OPM, and OPM's decisions may be appealed only to the MSpB,
subject to further review by the Federal Circuit." According to defendant, this court lacks
jurisdiction "when the underlying dispute rests on personnel action subject to OpM
administration, and Merit Systems Protection Board ('MSPB') review. . . . this Court is
barred from adjudicating Plaintiffs' retirement related claims." (omission in original)
(quotingAqeev. United States,77 Fed. C|.84,88,92(2007)). Defendantasseristhatthe
plaintiff is covered only by the FERS, and that the FERS is administered by the OPM and
not subject to this court's review. The plaintiff responds that this court has jurisdiction
under "5 U.S.C. Federal civilian employment" and FECA, and further states in her
opposition to defendant's motion to dismiss that the "Civilian Pay Act and 5 U.S.C. g g
8101 to 9009 covering Retirement Act (1920)" are money-mandating statutes which
create jurisdiction in this court. The plaintiff cites to Lindahl v. office of Personnel
Manaqement,4T0 U.S.768 (1985), and Dismuke v. United States,297 U.S. 167, reh'q
denied, 297 U.S. 167 (1936), as support for her assertion that this court has jurisdiction
over retirement claims.
Two retirement benefits systems are raised by Ms. Sherman in her opposition to
defendant's motion to dismiss: the FERS, outlined in Title 5, Chapter 84 of the United
States Code, and the CSRS, outlined in Title 5, Chapter 83 of the United States Code.
See 5 U.S.C. SS 8331-8351 (2012),5 U.S.C. SS 8401-8480 (2012); see atso Aqee v.
11
United States, 77 Fed. Cl. at 9'1 ("For federal employees, these benefits are determined
pursuant to either the Civil Service Retirement System (CSRS), 5 U.S.C. SS 8331-8351,
or the Federal Employees' Retirement System (FERS), 5 U.S.C. SS 8401-8479 (2000).').
The OPM has the authority to determine benefits under both the FERS and the CSRS.
See 5 U.S.C. S 83a7(a)-(b); 5 U.S.C. 5 8461(b)-(c); see also Adams v. Dep't of Def., 688
F.3d 1330, 1335 (Fed. Cr.2012) ("We take note that OPM is charged with administering
claims under chapter 83, and chapter 84 relating to the Federal Employees Retirement
System (FERS)." (citing 5 U.S.c. S 8461;and 5 U.S.C. S 8347(bxlXBXiv)-(v)));Aqee v.
United States, 77 Fed. Cl. at 92 (stating that the OPM has the authority to adjudicate all
claims arising under the FERS and the CSRS). lf a federal employee elects to appeal an
oPM decision regarding the employee's FERS benefits, the MSPB has the exclusive
authority to hear such claims. See 5 U.S.C. S 8461(e)(1) ("[A]n administrative action or
order affecting the rights or interests of an individual or of the United States under the
provisions of this chapter [Chapter 84] administered by the Office [of Personnel
Managementl may be appealed to the Merit systems Protection Board under procedures
prescribed by the Board."). Furthermore, the United states court of Appeals for the
Federal Circuit has the sole authority to review "a final order or final decision of the [Merit
systems Protectionl Board" with the exception of matters identified in 5 U.S.C. S 7703(b).
see 5 U.S.C. S 7703(b) (2012). Becausethe MSPB has general authorityto review an
l-drinirtr"tiu" iction made by the OPM under FERS, and the United States Court of
Appeals for the Federal Circuit has jurisdiction to review MSPB decisions regarding such
retirement matters, this court has consistently held that it does not have authority to hear
claims arising under the CSRS or the FERS. See 5 U.S.C. S 8a61 (eX1); geg_-alsq Koqan
"requests
v. United staies ,112Fed. cl. 253, 267 (2013) (declining to review the plaintiff_s
that the determine the amount of his future pension" under the FERS); Aqee v'
""rtt 77 Fed. Cl. at 92 (stating that the plaintiffs "should seek review and revision
United States,
tn"ir tcsns or FERSI benefits witfr oPM); McNeil v. United states,.TB Fed. c| 211,
a
236 (2007) ("Congress established comprehensive administrative and judicial
"r
framework ior adjudicating CSRS benefit claims that precludes this court's exercise of
jurisdiction."), ata,zgz F. npp'x 758 (Fed. Cir. 2008); Ferreiro v. United states,72Fed.
br. r , + (zoo6.l Go.cluding that "plaintiffs in this case must comply with the comprehensive
scheme established for obtaining CSRS benefits, which does not include filing suit in this
court"), affd, 501 F.3d 13a9 (Fed. cr.2oo7). This court, therefore, concludes that it lacks
jurisdiCtion over plaintiff's retirement claims arising under the FERS'
The plaintiff cites Lindahl v. office of Personnel Manaoement, 470 U.S..768, as an
jurisdiction such
example of this court's "tradition and history" in "handling subject matter
as the plaintiff s case." The passage quoted by the plaintiff in her opposition to defendant's
motion to dismiss states:
The civil service Retirement Act (Retirement Act). Government employees
whoarecoveredbytheRetirementActarerequiredtocontributeagglioj|
of their salaries to the civil service Retirement and Disability Fund. 5 U.S.
C. SS 8334(a), (b). The amount of retirement annuity is based on the
emftoyee'" average pay and years of federal service' $ 8339' The
Reiirement Act provides for several types of annuities; at issue here are
tz
disability retirement annuities. Pursuant to $ 8337, a covered employee who
has completed at least five years of federal civilian service is eligible for an
immediate annuity if found "disabled," whether he is retired on his own
application ("voluntary" retirement) or on the application of his employing
agency ("involuntary" retirement). S 8337(a).
Although the Retirement Act at no time has contained a general judicial
review provision, this Court concluded almost 50 years ago that a retired
employee may secure judicial review of an agency denial of his annuity
claim by invoking the district courts' Tucker Act jurisdiction to entertain
monetary claims against the United States. Dismuke v. United States, 297
U.S. 167 (1936). The Court reasoned:
"[]n the absence of compelling language, resort to the courts to assert
a right which the statute creates will be deemed to be curtailed only so
far as authority to decide is given to the administrative officer. . ' . lf he
is authorized to determine questions of fact his decision must be
accepted unless he exceeds his authority by making a determination
which is arbitrary or capricious or unsupported by evidence . . ' , or by
failing to follow a procedure which satisfies elementary standards of
fairness and reasonableness essential to the due conduct of the
proceeding which Congress has authorized. . . ." ld., at 172.
Lindahl v. Office of Pers. Mqmt., 470 U.S. at771-73 (alterations and omissions in original)
plaintiff, however, is an
6ootnote omitted).l3 The portion of Lindahl quoted by the
introductory paragraph discussing the Civil Service Retirement Act (Retirement Act),
which, at oire time, permitted the United States Court of Claims to review agency denials
of annuity claims under the then United States Court of Claims' and the United States
District Courts' Tucker Act jurisdiction. See id. at771-73. Lindahl, however, goes on to
state that the Civil Service Reform Act of 1978 (CSRA) created the OPM and granted the
oPM authority to administer the Retirement Act, and that the csRA also created the
MSPB, which was given the authority to review the oPM's decisions. see id. at 773-74'
Subsequently, the Federal Courts lmprovement Act of 1982 (FCIA) established the United
States bourf of Appeals for the Federal Circuit and granted the United States Court of
Appeals for the Federal Circuit jurisdiction over the appellate matters previously reviewed
Uy ihe United States Court of Claims. See id. at 775. The FCIA also abolished the United
Siates Court of Claims and created the United States Claims Court,la which inherited the
13The plaintiffs quotation of Lindahl in her opposition to defendant's motion to dismiss
i'disability retirement" and the phrase "[a]lthough the Retirement Act at
omits the phrase
no time has contained a general judicial review provision." Lindahl v. Office of Pers.
Momt., 470 U.S. at772.
1a Subsequently, the United States Claims Court was renamed the United States Court
of Federai Claims in 1992. See Federal Courts Adminiskation Act of 1992, Pub. L. No.
102-572, S 902, 106 Stat.4506,4516 (1992).
42.
United States Court of Claims' Tucker Act jurisdiction under 28 U.S.C. S 1491. ld. at 795
n.33, 796. Thus, Lindahl, in fact, indicates that the United States Court of Federal Claims
currently does not have jurisdiction to hear the plaintiffs retirement claim. See id. at 791-
92 (stating that permitting review of MSPB decisions in the United States Claims Court
"does not accord with the jurisdictional framework established by the CSRA or the FCIA").
Although the plaintiff and the defendant acknowledge that the plaintiff has not
made a FECA claim in the above-captioned case, in her complaint the plaintiff states that
,,[t]he
statutory basis for invoking jurisdiction is 5 U.s.c., and FECA a money-mandating
siitute." FECA covers employees who are injured or killed during the course of their
federal employment. See 5 U.S.C. $ 8102(a) (2012) Should an employee seek
comoensation under FECA, FECA becomes the employee's exclusive remedy for a
workplace injury and bars judicial review. see 5 u.s.c. s B1 16(c) (2012); see also Bowlinq
v. United St;tei,93 Fed. Cl" 551,557 (2010) (citations omitted), recons. de,nie!93 Fed.
@,76 Fed. cl.593,598 (2007), arrd,529 F.3d 1345
(Fed. Cii. ZoO'a;. fne Seiretary of Labor makes a finding regarding whe,ther an individual
will receive FEbA payments and hears any challenges based on FECA claims. See 5
u.s.c. s 8124(a)-('b) (2012). The Secretary of Labor also may review the employee's
FECA award and choose to "end, decrease, or increase the compensation previously
awarded" or "award compensation previously refused or discontinued.' 5 u.s.c.
is "final and conclusive for
s 8128(a) (2012). Any action taken by the secretary of Labor
Itt purpoi". and withiespect to all questions of law.and fact" and is "not subject to review
" U.S.C.
uv andtner oricial of the United States or by a court by mandamus or otherwise 5
jurisdiction hear the
s'grza(u). consequently, FECA does not provide this court with to_
pueschet v. United Siatgs.297 F.3d 1371,1377 (Fed. Cir. 2002)
[laintifds'ctaim. geg properly dismissed the
i"onifuOing tnat-tneTniteO Sates Court of Federal Claims
v. lJnited states, 93 Fed'
ir"lniitr. F"ECA claims for lack of jurisdiction); see alsg BowlinqFECA claims."); Collins v.
bt. at ssa ("[T]his court has no authority to hear or administer
u"iGJSdi"., 35 Fed. Cl. 620, 625-i6 (1996) ("This court follows the abundance of
pre""o"nt ano finds that it does not have jurisdiction over plaintiffs FECA claims because
of the Act
it uttimatety questions the Secretary's discretionary judgment of which s-ecti^ons
was valid.").
apply to the claimant and whether denial of full payment under section 8133
Ms. Sherman also requests that this court "order the filing of [sic] administrative
aftached
record,,from the oPM under RCFC 52.1. The plaintiff claims that the documents
plaintiff
by the defendant to its motion to dismiss, which include the SF 50 separating the
from her employment with the IRS and the oPM election letters allegedly sent to the
ptrintitr on .tinuary 16, 2018, are administrative records that contain "no information on
'how
the annuity was estimaied," are "not certified," and do "not remotely comply with
nCrc sz.r." The plaintiff requests that this court order that the OPM produce whether
an
administrative record so that the plaintiff may make "a meaningful decisiort-on
or
she should continue with her Federal Employees' Compensation Benefits(FECA) [sic]
that
receive civil service Annuity (CSRS or FERS).',The defendant, however, argues
;,ttirr" couurnrent does not need to file an administrative record," and that any
,,iilroceeaings before oPM are irrelevant here because the Court lacks jurisdiction to
.""ui"* diecisions of OPM regarding Ms. Sherman's retirement benefits."
"ny
14
As support for her request that this court order the filing of an administrative record,
the plaintiff cites an unreported order in Freeman v. United States, a military pay case in
which a judge of the United States Court of Federal Claims required the defendant to
provide an administrative record under RCFC 52.1(a). See Freeman v. United States, No.
10-270C,2010WL4058634, at-'l (Fed. Cl. Oct. 13,2010). In Freeman v. United States,
the United States Court of Federal Claims ordered the government to produce an
adminiskative record when the documents submitted by the defendant were "manifestly
insufficient" for the reviewing court to analyze "defendant's motion to dismiss for lack of
subject matter jurisdiction." See id. In the above-captioned case, however, the plaintiff's
claims concern her eligibility for a higher retirement benefit under FERS, an area over
which this court lacks jurisdiction, and the production of an administrative record would
not assist the court or remedy the jurisdictional defects in the plaintiff's claims.
The plaintiff also requests leave to amend her complaint "[s]hould this Court were
to deem [sic] that the plaintiff provide further evidence to establish jurisdiction and that
could be remedied by amending the complaint with facts sufficient to establish jurisdiction
upon which relief can be granted after the administrative file is filed." (emphasis in
original). Although the plaintiff correctly notes that this court should "freely give leave
when justice so requires," the court also may reject a plaintiffs request for leave to amend
a complaint if the amendment would be futile. See RCFC 15(a)(2) (2018); see also A &
D Auto Sales, Inc. v. United States,748 F.3d 1142, 1158 (Fed. Cir. 2014) ("ln the absence
of any apparent or declared reason-such as . . . futility of amendment, etc.-the leave
sought should, as the rules require, be'freely given."' (quoting Foman v. Davis, 371 U.S.
178, 182 (1962) (quoting Fed. R. Civ. P. 15(a)))); Kemin Foods, L.C. v. Piqmentos
Veqetales Del Centro S.A. de C.V. , 464 F .3d 1 339, 1353 (Fed. Cir. 2006) ("Nonetheress,
leave to amend may be denied if the court finds that there has been undue delay that
would prejudice the nonmoving party, that the moving party has acted in bad faith, or that
the amendmentwould befutile." (citing Foman v. Davis, 371 U.S. at 182)); Sonoran Tech.
& Prof'l Servs., LLC v. United States, 133 Fed. Cl.401, 403(2017) ("The Courtshoutd
deny leave to amend if there is evidence of delay, bad faith, repeated failure to correct a
complaint's deficiencies, undue prejudice to the opposing party, or if the amendment
would be futile." (citation omitted)); Advanced Aerospace Techs., Inc. v. United States,
130 Fed. Cl. 564, 568 (2017) ("Of course, when a proposed amendment is futile, leave to
amend a pleading should not be granted." (citing Mitsui Foods, Inc. v. United States, 867
F.2d 1401, 1403-04, reh'q denied (Fed. Cir. 1989))). An amendment is futile if "it woutd
not survive a motion to dismiss." Sonoran Tech & Prof I Servs., LLC v. United States, 133
Fed. Cl. at403 (citing MeverGrp.. Ltd. v. United States, 115 Fed. Cl.645,650 (201a));
see also Kemin Foods, L.C. v. Piqmentos Veoetales Del Centro S.A. de C.V., 464 F.3d
at 1354-55 ("When a party faces the possibility of being denied leave to amend on the
ground of futility, that party must demonstrate that its pleading states a claim on which
relief could be granted, and it must proffer sufficient facts supporting the amended
pleading that the claim could survive a dispositive pretrial motion." (citing Norbeck v.
Davenport Cmtv. Sch. Dist.,545F.2d 63, 70 (8th Cir.1976), cert. denied 431 U.S. 917
(1977),and Wilsonv.Am.TransAir, lnc.,874F.2d 386,392(7thCir.1989))); Hanover
Ins. Co. v. United States, 1 34 Fed. Cl. 51 , 63 (2017) ("An amendment is futile if it would
15
not survive an RCFC 12(b)(6) motion to dismiss." (citation omitted)). In the above-
captioned c€lse, regardless of whether the plaintiff were to submit an amendment to her
complaint to include additional facts, this court lacks jurisdiction to review the allegations
raised by the plaintiffs complaint.
CONCLUSION
The court, therefore, GRANTS defendant's motion to dismiss. The plaintiffs
complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with
this opinion.
IT IS SO ORDERED.
MARIAN BLANK HORN
Judge
16