Knight v. United States

In the United States Court of Federal Claims

No. 24-1127

(Filed: January 10, 2025)

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PHYLLIS M. KNIGHT, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Phyllis M. Knight, Wichita, KS, pro se.

Eric P. Bruskin, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant.

OPINION AND ORDER

Dietz, Judge.

Before the Court is a motion to dismiss the complaint of pro se plaintiff, Phyllis M.

Knight, for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the

United States Court of Federal Claims (“RCFC”). For the reasons below, the Court finds that it

lacks subject-matter jurisdiction over Ms. Knight’s claims under the Federal Employees’

Retirement System (“FERS”) Act, 5 U.S.C. § 8401 et. seq, the Back Pay Act (“BPA”), 5 U.S.C.

§ 5596, and the federal criminal code, specifically 18 U.S.C. § 644. Accordingly, the Court

GRANTS the motion to dismiss.

I. BACKGROUND

Ms. Knight filed her complaint in this Court on July 24, 2024. Compl. [ECF 1]. In her

complaint, Ms. Knight states that she became disabled while performing her duties at “the

Veterans Canteen Service Central Office” and that she was removed from her position on April

20, 2015, due to an unauthorized absence. Id. at 2. 1 She states that she was later “diagnosed with

‘Heart Failure’ that forced her into total disability retirement” and that, on October 15, 2015, the

Social Security Administration (“SSA”) found her disabled. Id. Ms. Knight alleges that she was

to receive her first FERS annuity payment on November 1, 2015, and that the Office of

Personnel Management (“OPM”) failed to issue her any annuity payments. Id. She also alleges

“theft or embezzlement of benefits” in violation of 18 U.S.C. § 644 of the Federal Criminal

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All page numbers cited from the parties’ filings refer to the page numbers generated by the CM/ECF system.

Code. Id. at 3. She seeks retirement benefits under the FERS Act and monetary compensation

under the BPA. Id.

On September 24, 2024, the government filed a motion to dismiss under RCFC 12(b)(1).

Def.’s Mot. to Dismiss [ECF 7]. The government argues that this Court lacks subject-matter

jurisdiction over Ms. Knight’s claims for benefits or compensation under the FERS Act and the

BPA, as well as her claim for violation of 18 U.S.C. § 644. Id. at 3-5. Separately, the government

argues that her claims are time-barred by the Court’s statute of limitations. Id. at 5-6.

Ms. Knight filed her response to the government’s motion to dismiss on October 18,

2024. Pl.’s Resp. [ECF 10]. She asserts that 5 U.S.C. § 8451 (“Disability Retirement”) and 5

U.S.C. § 8452 (“Computation of Disability Annuity”) “allow for a money-mandating cause of

action under this Court’s subject matter jurisdiction.” Id. at 3. She further states that she “did not

request retirement disability through OPM’s administration scheme under [5 U.S.C.] § 8461 after

being diagnosed with ‘Graves disease’ on April 3, 2015” and that “after separation [she] applied

for disability through social security after being diagnosed with ‘Heart failure’ on September 11,

2015.” Id. at 6. She contends that, under § 8451, “FERS coverage was mandatory under social

security” and that OPM’s denial of her application for disability retirement “constitutes fraud.”

Id. She also claims to have “connected [the Social Security Administration] and OPM

government employees . . . in a scheme of embezzlement of more than $100,000.00 from her

FERS annuity trust fund and the theft of her basic benefits.” Id. at 7.

On December 2, 2024, the government filed its reply. Def.’s Reply [ECF 11]. The

government contends that Ms. Knight failed to “explain[] how her claims are timely under

§ 2501’s six-year statute of limitations [under the Tucker Act]” and that her complaint should be

dismissed for that reason alone. Id. at 1. Additionally, the government further explains why this

Court lacks subject-matter jurisdiction over claims under the FERS Act, the BPA, and 18 U.S.C.

§ 644. Id. at 2-3. The government’s motion to dismiss is fully briefed, and the Court determined

that oral argument is not necessary. 2

II. STANDARDS OF REVIEW

Establishing subject-matter jurisdiction is a threshold requirement. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). The Court of Federal Claims has limited

jurisdiction. Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997); see also Massie v.

United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000). The Tucker Act grants this Court

jurisdiction over “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). The Tucker Act, however, is “merely a jurisdictional

statute and does not create a substantive cause of action.” Rick’s Mushrooms Serv., Inc. v. United

States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (citing United States v. Testan, 424 U.S. 392, 398

(1976)). To establish subject-matter jurisdiction in this Court, a plaintiff must identify a

“substantive right created by some money-mandating constitutional provision, statute or

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In reaching its decision, the Court also considered a sur-reply filed by Ms. Knight on January 2, 2025, which was

filed by leave on January 10, 2025. See [ECF 13].

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regulation that has been violated, or an express or implied contract with the United States.”

Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994). “[T]he plaintiff[]

bears the burden of establishing the court’s jurisdiction over its claims by a preponderance of the

evidence.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

A defendant may challenge whether the plaintiff has properly established jurisdiction by

filing a motion to dismiss the complaint under RCFC 12(b)(1). See Palmer v. United States, 168

F.3d 1310, 1313 (Fed. Cir. 1999) (explaining that “a question of a court’s subject matter

jurisdiction . . . is properly raised by a [Rule] 12(b)(1) motion”). When considering such a

motion, the court “must accept as true all undisputed facts asserted in the plaintiff’s complaint

and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc., 659 F.3d

at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). Further, claims filed

by pro se plaintiffs are held “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972)). Thus, courts afford pro se plaintiffs more latitude in their pleadings and may search a

plaintiff’s complaint and the record to determine if the court may rightfully exercise jurisdiction

over it. See Roman v. United States, 61 F.4th 1366, 1370 (Fed. Cir. 2023) (citations omitted).

However, the court does not construe its jurisdictional requirements liberally, and “is allowed no

discretion to bend the requirements of jurisdiction in [a pro se plaintiff’s] favor.” Stanley v.

United States, 107 Fed. Cl. 94, 98 (2012).

III. ANALYSIS

Ms. Knight states that she “is a former civilian employee who contributed a percentage of

her salary to receive future benefits,” [ECF 10] at 2; that she had a disability retirement under 5

U.S.C. § 8451, id. at 2-3; and that she is “entitled to an annuity computed under [5 U.S.C.]

§ 8452,” id. She argues that “FERS coverage is in fact a mandatory benefit that [she] is entitled

to under social security.” Id. at 3. According to Ms. Knight, “[t]hese statutes together allow for a

money-mandating cause of action under this Court’s subject matter jurisdiction.” Id. The Court

disagrees. Where a “‘specific and comprehensive scheme for administrative and judicial review’

is provided by Congress, the Court of Federal Claims’ Tucker Act jurisdiction over the subject

matter covered by the scheme is preempted.” Bargsley v. United States, 120 Fed. Cl. 619, 630

(2015) (quoting Vereda, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001)); see also

United States v. Bormes, 568 U.S. 6, 12 (2012) (“[W]hen a law assertedly imposing monetary

liability on the United States contains its own judicial remedies,” this Court’s Tucker Act

jurisdiction is displaced.). Under the FERS statute, Congress created an exclusive remedial

scheme to adjudicate FERS-related claims. See 5 U.S.C. § 8461(c) (“[OPM] shall adjudicate all

claims under the provisions of this chapter administered by [it].”). This Court therefore lacks

jurisdiction over FERS-related claims. See Hasan v. United States, 171 Fed. Cl. 167, 171 (2024)

(“When Congress passed the FERS statute, it created an exclusive remedial scheme that

displaced this court’s jurisdiction over FERS-related claims.”). As a result, this Court does not

have jurisdiction to hear Ms. Knight’s claims relating to her FERS payments. See Ogburn v.

United States, 2023 WL 2808066, at *3 (Fed. Cir. Apr. 6, 2023) (affirming dismissal of

plaintiff’s FERS claims because they should be first before OPM and then the United States

Merit Systems Protection Board); Stekelman v. United States, 752 F. App’x 1008, 1010 (Fed.

Cir. 2018) (“By statute, the authority to decide a FERS application in the first instance and

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adjudicate all claims arising under that retirement system rests with OPM.”); Agee v. United

States, 77 Fed. Cl. 84, 92 (2007) (stating that plaintiff “should seek review and revision of their

[FERS] benefits with OPM”).

Next, Ms. Knight states that the BPA “allows federal employees to receive back pay and

attorney fees if they are affected by an unjustified or unwarranted personnel action.” [ECF 1] at

1. She seeks to be made “financially whole” pursuant to the BPA. Id. at 3. However, “the BPA,

by itself, cannot be used as an exclusive basis for Tucker Act jurisdiction.” Carroll v. United

States, 67 Fed. Cl. 82, 85 (2005), aff’d, 198 F. App’x 928 (Fed. Cir. 2006); see also United

States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (stating that “[t]he [BPA] is merely

derivative in application; it is not itself a jurisdictional statute.”). Therefore, for this Court to

have jurisdiction over a plaintiff’s BPA claim, “some provision of law other than the [BPA] must

first mandate . . . money damages to an employee suffering an unjustified or unwarranted

personnel action.” Sacco v. United States, 63 Fed. Cl. 424, 428 (2004) (citing Walker v. United

States, 11 Cl. Ct. 77, 80 (1986)), aff’d 452 F.3d 1305 (Fed. Cir. 2006); see also Soliman v.

United States, 2017 WL 3634240, at *5 (Fed. Cl. Aug. 24, 2017), aff’d, 724 F. App’x 936 (Fed.

Cir. 2018) (“The Federal Circuit has also held that the [BPA] only mandates the payment of

money when a plaintiff identifies an ‘applicable law, rule, regulation, or collective bargaining

agreement’ which has been violated, leading to a reduction in pay.”) (citing Worthington v.

United States, 168 F.3d 24, 26 (Fed. Cir. 1999)), aff’d 724 F. App’x 936 (Fed. Cir. 2018);

Carroll, 67 Fed. Cl. at 85 (holding that “[t]here must be another legal provision, or agency

decision, indicating that the pay differential was improper”). Ms. Knight does not identify any

other provision of law, regulation, rule, or agency decision that permits this Court to exercise

jurisdiction over her BPA claim. See generally [ECFs 1, 10]; see also Shelleman v. United

States, 9 Cl. Ct. 452, 457 (1986) (finding a lack of jurisdiction under the BPA where the

“[p]laintiffs have failed to direct this court to any unwarranted personnel action prohibited by

statute, regulation, or law which in turn authorizes suit in this court”). The Court therefore lacks

jurisdiction over Ms. Knight’s BPA claim. 3

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Ms. Knight alleges that her “removal decision was due to -- Leave of Absence Request Policy Unauthorized

Absence (A WOL)” and that “the affected employee may still be able to obtain a Bruner Presumption if he/she can

prove absence were due to physical inability to actually perform the duties of the position.” [ECF 1] at 2. First,

under Bruner v. Off. of Pers. Mgmt., 996 F.2d 290 (Fed. Cir. 1993), “[w]hile the burden of production is generally

on an employee seeking disability retirement, an action by the government separating the employee for his disability

establishes a prima facie case of disability for purposes of determining retirement benefits and shifts the burden of

production to the government.” Alston v. Off. of Pers. Mgmt., 545 F. App’x. 980, 983 (Fed. Cir. 2013) (citing

Bruner, 996 F.2d at 293-94). However, this issue is not properly before this Court because the determination of

entitlement to disability retirement benefits under the FERS Act rests with OPM. See 5 U.S.C. § 8461; Stekelman,

752 F. App’x at 1010. Next, Ms. Knight does not allege that the removal decision violated a statute or regulation. To

establish a claim under the BPA, a plaintiff must allege that the personnel action violated a statute or regulation

covered by the Tucker Act. See Connolly, 716 F.2d at 887. Finally, even if the Court were to construe her complaint

as alleging a wrongful removal, it would be time-barred under the Court’s statute of limitations because her removal

occurred on April 20, 2015, and her complaint was filed over nine years later, on July 24, 2024. See 28 U.S.C. §

2501 (“Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such claim first accrues.”); see Friedman v. United States, 310 F.2d

381, 398 (Ct. Cl. 1962) (“[I]it is inherent in all statutes of limitations that claims otherwise justifiable and justiciable

will be denied because suit is not brought in time.”).

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Lastly, Ms. Knight states that 18 U.S.C. § 644 “prohibits theft or embezzlement of

benefits.” [ECF 1] at 3. She alleges that the SSA and OPM engaged in an embezzlement scheme

resulting in the theft “of more than $100,000.00 from her FERS” account and her basic benefits.

[ECF 10] at 7. The Court cannot exercise jurisdiction over this claim because it “has no

jurisdiction to adjudicate any claims whatsoever under the federal criminal code.” Joshua v.

United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also Jones v. United States, 440 F. App’x

916, 918 (Fed. Cir. 2011) (noting the Court lacks “jurisdiction over criminal matters generally”);

Shumaker v. United States, 2023 WL 6296603, at *2 (Fed. Cl. Sept. 27, 2023) (noting that the

Court lacks jurisdiction over allegations brought “under the federal criminal code”) (quoting

Joshua, 17 F.3d at 379). 4

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS the government’s Motion to

Dismiss. The Court DISMISSES Ms. Knight’s complaint for lack of subject-matter jurisdiction

pursuant to RCFC 12(b)(1). The Clerk is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

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Ms. Knight references “[t]he First Amendment’s guarantee of the right to petition the Government for redress of

grievances.” [ECF 1] at 1 (internal quotation marks omitted). However, “the literal terms of the first amendment

neither explicitly nor implicitly obligate the federal government to pay damages.” Connolly, 716 F.2d at 887.

Because the First Amendment is not money-mandating, it is not an independent basis of this Court’s jurisdiction.

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