Topping v. United States

3Jn tbe Wniteb $tate5 <!Court of jfeberal <!Claims

No. 15-1330C

Filed June 29, 2016 FILED

NOT FOR PUBLICATION

)

JUN 2 9 2016

DALE JOHN TOPPING, ) U.S. COURT OF

) FEDERAL CLAIMS

Plaintiff, )

) Pro Se; RCFC 12(b)(l), Subject-Matter

v. ) Jurisdiction; RCFC 12(b)(6), Failure to

) State a Claim; Implied-in-Fact Contract;

THE UNITED STATES, ) Fifth Amendment Takings; In Forma

) Pauperis.

Defendant. )

~~~~~~~~~~~~~~~)

Dale John Topping, North Fort Meyers, FL, Plaintiff prose.

Kenneth S. Kessler, Trial Attorney, Allison Kidd-Miller, Assistant Director, Robert E.

Kirschman, Jr., Director and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,

DC, for Defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff prose, Dale John Topping, brought this action against the United States seeking

monetary damages and declaratory and injunctive relief for alleged violations of his civil rights,

a Fifth Amendment takings and violations of the Due Process and Equal Protection Clauses of

the Fifth and Fourteenth Amendments, in connection with the United States Department of

Education's decision to garnish his Social Security disability benefit payments to satisfy an

outstanding federal student loan debt. The government has moved to dismiss the complaint for

lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be

granted, pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of the United States Court of

Federal Claims ("RCFC"). Plaintiff has also filed a motion to proceed in forma pauper is and a

motion for judgment of default and petition for a partial writ of mandamus. For the reasons set

forth below, the Court: (1) GRANTS the government's motion to dismiss; (2) DENIES as moot

plaintiff's motion for judgment of default and petition for a partial writ of mandamus; and (3)

GRANTS plaintiff's motion to proceed informa pauperis.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

Plaintiff prose, Dale John Topping, commenced this action on November 5, 2015. See

generally Com pl. Plaintiffs complaint is difficult to follow. Nonetheless, it appears that

plaintiff seeks monetary damages from the United States, and declaratory and injunctive relief, in

connection with the United States Department of Education's ("DOE") decision to garnish

plaintiffs Social Security disability benefit payments to satisfy the outstanding balance for

plaintiffs defaulted federal student loans. Id.

Specifically, in the complaint plaintiff alleges that, on or about October 8, 1986, the

Michigan Department of Education improperly declared him to be in default on four federal

student loans. Id. at~ 10, Exs. 13, 69; Def. Mot. at 3. Plaintiff further alleges, among other

things, that as a result of his protracted dispute with the DOE regarding the repayment of these

student loans, he has suffered "extreme stress" that was "intentionally inflicted" upon him as part

of the DOE's "malicious defense" of its administrative decision. Compl. at Prayer for Relief,~~

C, F. In addition, plaintiff alleges that the DOE violated his Fifth and Fourteenth Amendment

rights to due process and equal protection under the law during the administrative and court

proceedings involving the repayment of his student loans. Id. at~~ 6, 88, 96, 100, 107-11.

In this regard, plaintiff contends that, among other things, the DO E's garnishment of his

Social Security disability benefit payments to repay these loans constitutes a takings of his

property under the Fifth Amendment. Id. at~~ 87, 99-106. As relief, plaintiff requests that the

Court award him monetary compensation, declare the DOE's decision to garnish his benefits to

be arbitrary, capricious and contrary to law, and issue a writ of partial mandamus. Id. at Prayer

for Relief.

As background, between 1980 and 1986, plaintiff received four federal student loans in

the original aggregate principal amount of $6,117.00. Id. at Ex. 68; Def. Mot. at 3. In October

1986, the Michigan Department of Education found these loans to be in default. Compl. at~ 10,

1

The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint

("Comp I."); plaintiffs motion of default judgment ("Pl. Mot. of Default J."); the government's motion to

dismiss ("Def. Mot."); plaintiffs response to the government's motion to dismiss ("Pl. Resp."); and

plaintiffs sur-reply ("Pl. Sur-Reply"). Unless otherwise noted herein, the facts recited are undisputed.

2

Ex. 69; Def. Mot. at 3. Plaintiffs student loans were subsequently assigned to the DOE for

collection. Compl. at iii! 15, 20.

After a series of administrative proceedings, the DOE decided to garnish plaintiffs

Social Security disability benefit payments to satisfy the outstanding balance for the loans. Id. at

if 33, Exs. 12, 76. During the period July 2009 to November 2009, the DOE garnished $773.20

from plaintiffs Social Security disability benefit payments to repay these loans. Id. at if 87, Ex.

76; Def. Mot. at 3; Pl. Resp. at 12. During the period February 2013 to December 2015, the

DOE garnished an additional $9,408.00 from plaintiffs Social Security disability benefit

payments. Compl. at if 87; Pl. Mot. of Default J. at 6; Pl. Sur-Reply at Ex. 230.

On November 25, 2009, plaintiff challenged the DOE's decision to garnish his Social

Security disability benefit payments before the DOE. Compl. at Exs. 45-66; Def. Mot. at 3. On

March 18, 2010, the DOE denied plaintiffs challenge to the garnishment decision. Compl. at

Exs. 67-81. Thereafter, on May 19, 2015, the United States District Court for the Middle District

of Florida affirmed the DOE's garnishment decision. Topping v. Cohen, No. 2:14-CV-146-

FTM, 2015 WL 2383630, at *8 (M.D. Fla. May 19, 2015). 2 Subsequently, plaintiff commenced

this action.

B. Procedural Background

Plaintiff filed the complaint in this matter on November 5, 2015. See generally Compl.

Also on November 5, 2015, plaintiff filed a motion for leave to proceed in for ma pauperis. See

generally Pl. Mot. to Proceed In Forma Pauperis. After the government failed to file a timely

response to plaintiffs complaint, plaintiff also filed a motion styled as "motion for judgment of

default and petition for a partial writ of mandamus" on January 8, 2016. See generally Pl. Mot.

of Default J.; see also RCFC 55(a).

2

Plaintiff also filed numerous lawsuits in federal and state courts regarding the repayment of his federal

student loans. See, e.g., Topping v. United States Dep 't of Educ., No. 2:09-CV-396-FRM, 2011 WL

1158696 (M.D. Fla. Mar. 29, 2011); Topping v. United States Dep't of Educ., No. 2:09-cv-396-FTM-29,

2012 WL 397809 (M.D. Fla. Feb. 8, 2012), afj"d, 510 F. App'x 816 (11th Cir. 2013), cert. denied, 134 S.

Ct. 432 (2013); Topping v. United States, No. 2:12-cv-524-FTM-99SPC (M.D. Fla. Sept. 20, 2012);

Toppingv. United States, No. 2:12-cv-524-FTM-99SPC; Toppingv. Cohen, No. 2:14-CV-146-FTM,

2015 WL 2383630 (M.D. Fla. May 19, 2015). Plaintiff's claims were dismissed in each of these cases.

3

On January 11, 2016, the Court issued a Show Cause Order directing the government to

explain why defendant failed to file a timely response to the complaint. See generally Show

Cause Order, Jan. 11, 2016. On February 1, 2016, the government filed its response to the

Court's Show Cause Order and a motion to dismiss plaintiffs complaint. See generally Def.

Resp. to Show Cause Order; Def. Mot.

On February 19, 2016, plaintiff filed a response to the government's motion to dismiss.

See generally Pl. Resp. On February 26, 2016, plaintiff filed a supplemental response to the

government's motion to dismiss. See generally Pl. Supp. Resp. On March 11, 2016, the

government filed a reply in support of its motion to dismiss. See generally Def. Reply. On

March 18, 2016, plaintiff filed a motion for leave to file a sur-reply to the government's motion

to dismiss. See generally Pl. Mot. for Leave to File. On March 28, 2016, the Court granted

plaintiffs motion for leave to file a sur-reply. See generally Order Granting Sur-Reply. On

April 11, 2016, plaintiff filed a sur-reply to the government's motion to dismiss. See generally

Pl. Sur-Reply. The government's motion to dismiss having been fully briefed, the Court

addresses the pending motion.

III. STANDARD OF REVIEW

A. Pro Se Litigants

Plaintiff is proceeding in this matter prose, without the benefit of counsel. And so, the

Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x 919,

925-26 n.2 (Fed. Cir. 2013). When determining whether a complaint filed by a prose plaintiff is

sufficient to survive a motion to dismiss, this Court affords more leeway under the rules to pro se

plaintiffs than to plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519,

520 (1972) (holding that prose complaints, "however inartfully pleaded," are held to "less

stringent standards than formal pleadings drafted by lawyers."); Matthews v. United States, 750

F.3d 1320, 1322 (Fed. Cir. 2014).

But, there "is no duty on the part of the trial court to create a claim which [plaintiff] has

not spelled out in his pleading." Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (brackets

existing; citations omitted). And so, while "a pro se plaintiff is held to a less stringent standard

than that of a plaintiff represented by an attorney, ... the pro se plaintiff, nevertheless, bears the

burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v.

4

United States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359

(Fed. Cir. 2002)). Given this, the Court may excuse ambiguities, but not defects, in the

complaint. See Colbert v. United States, 617 F. App'x 981, 983 (Fed. Cir. 2015); see also

De mes v. United States, 52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded prose litigants

with respect to mere formalities does not relieve them of jurisdictional requirements.") (citation

omitted).

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

When deciding a motion to dismiss upon the ground that the Court does not possess

subject-matter jurisdiction pursuant to RCFC 12(b)(l), this Court must assume that all

undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the

non-movant's favor. Erickson v. Pardus, 55 l U.S. 89, 94 (2007); see also RCFC 12(b)(l). But,

plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so by a

preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject

matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and "possess[ es] only that power authorized by Constitution and statute .... " Kokkonen v.

Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994) . The Tucker Act grants the Court

jurisdiction over:

[A]ny claim against the United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(l). The Tucker Act, however, is a "jurisdictional statute; it does not create

any substantive right enforceable against the United States for money damages .... [T]he Act

merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the

substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a

substantive right against the United States under the Tucker Act, a plaintiff must identify and

plead a money-mandating constitutional provision, statute, or regulation; an express or implied

contract with the United States; or an illegal exaction of money by the United States. Cabral v.

United States, 317 F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d

5

1167, 1173 (Fed. Cir. 2005)). "[A] statute or regulation is money-mandating for jurisdictional

purposes if it 'can fairly be interpreted as mandating compensation for damages sustained as a

result of the breach of the duties [it] impose[s]."' Fisher, 402 F.3d at 1173 (quoting United

States v. Mitchell, 463 U.S . 206, 219 (1983)).

C. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief

may be granted pursuant to RCFC l 2(b)( 6), this Court must also assume that all undisputed facts

alleged in the complaint are true and draw all reasonable inferences in the non-movant's favor.

Erickson, 551 U.S . at 94; see also RCFC 12(b)(6). To survive a motion to dismiss pursuant to

RCFC 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is

plausible on its face ." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). When the complaint fails to "state a claim to relief that is

plausible on its face," the Court must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation

omitted). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should

assume their veracity" and determine whether it is plausible, based upon these facts, to find

against defendant. Id. at 679 .

D. Fifth Amendment Takings

The United States Court of Federal Claims has exclusive jurisdiction to consider Fifth

Amendment takings claims in excess of $10,000. 28 U.S.C. § 1491(a); see also Acceptance Ins.

Cos. Inc. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007). The Takings Clause of the

Fifth Amendment guarantees just compensation whenever private property is "taken" for public

use. U.S. Const. amend. V. In order to have a cause of action for a Fifth Amendment takings, a

plaintiff must point to a protectable property interest that is asserted to be the subject of the

takings. See Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) ("Because the

Constitution protects rather than creates property interests, the existence of a property interest is

determined by reference to 'existing rules or understandings that stem from an independent

source such as state law."') (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577

(1972)). While takings claims are within the jurisdiction of this Court, a takings can only result

"when the underlying governmental action is valid and authorized." Wagstaff v. United States,

105 Fed. Cl. 99, 110 (2012); see also Eversleigh v. United States, 24 Cl. Ct. 357, 359 (1991) ("A

6

taking claim may only be based on the Government's rightful exercise of its property, contract,

or regulatory powers.") (citation omitted). And so, to establish a cognizable takings claim, a

plaintiff must concede the validity of the government's action in order to proceed. Tabb Lakes,

Ltd v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993).

E. Breach Of Contract Claims Against The United States

Lastly, the Tucker Act grants this Court jurisdiction to consider claims based "upon any

express or implied contract with the United States." 28 U.S.C. § 1491(a)(l). The Court does

not, however, possess jurisdiction to consider claims against the United States "based on

contracts implied in law." Mitchell, 463 U.S. at 218 (citing Merritt v. United States, 267 U.S.

338, 341 (1925)); see also Aboo v. United States, 86 Fed. Cl. 618, 626 aff'd, 347 F. App'x 581

(Fed. Cir. 2009). And so, to bring a valid contract claim against the United States under the

jurisdiction of this Court, the underlying contract must be either express or implied-in-fact.

Aboo, 86 Fed. Cl. at 626-27. In addition, to establish the existence of either an express or

implied-in-fact contract with the United States, a plaintiff must show: (1) mutuality of intent; (2)

consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind

the government in contract on the part of the government official whose conduct is relied upon.

Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012). A plaintiff must support this

claim with well-plead allegations going to each element of a contract. See Crewzers Fire Crew

Transp. Inc. v. United States, 741F.3d1380, 1382 (Fed. Cir. 2014) (holding that to invoke the

jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded allegation

that asserts its claims arose out of a valid contract with the United States); see also RCFC 9(k)

("In pleading a claim founded on a contract or treaty, a party must identify the substantive

provisions of the contract or treaty on which the party relies.") .

IV. DISCUSSION

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

The government has moved to dismiss plaintiff's complaint upon two grounds. First, the

government argues that the Court does not possess subject-matter jurisdiction to consider any of

plaintiffs claims, because the claims are not based upon any substantive source of law that

would create a right for plaintiff to recover money damages from the United States. Def. Mot. at

6-8. The government also moves to dismiss the complaint for failure to state a claim upon which

7

relief may be granted, because plaintiff does not allege any facts in the complaint that would

entitle him to recover money damages from the government. Id. at 8-9. For the reasons

discussed below, the Court does not possess subject-matter jurisdiction to consider plaintiffs

claims and the complaint also fails to state a plausible takings claim. And so, the Court must

dismiss the complaint. RCFC 12(b)(l); RCFC 12(b)(6).

1. Plaintiff's Tort Claims Are Jurisdictionally Precluded

As an initial matter, the Court must dismiss plaintiffs tort law claims for lack of

subject-matter jurisdiction. RCFC 12(b)(l). In the complaint, plaintiff seeks to recover

monetary damages from the government as compensation for "life altering and limiting medical

consequences" that arose from the "extreme situational stress" that was "intentionally inflicted"

upon him by government employees as part of the "malicious defense of the [DOE's] choices

contrary to law." Compl. at Prayer for Relief,~ C. Plaintiff also alleges that his life has been

"altered and shortened," his "enjoyment of life destroyed," his "credit and reputation" ruined,

and his "business interests" destroyed, as a result of the government's actions. Id. at Prayer for

Relief,~ F.

The Court may not entertain plaintiffs claims because these claims clearly sound in tort.

McCauley v. United States, 38 Fed. Cl. 250, 265 (1997), aff'd, 152 F.3d 948 (Fed. Cir. 1998)

("Plaintiffs claims for monetary damages, which arise out of [the government's] alleged

negligent and wrongful conduct ... are claims clearly sounding in tort."); Ancman v. United

States, 77 Fed. Cl. 368, 373 (2007) ("Claims for pain and suffering, emotional distress, and

mental anguish sound in tort, and this court does not possess jurisdiction over tort claims.")

(citation omitted). It is well established that the Tucker Act explicitly places tort claims beyond

the jurisdiction of this Court. 28 U.S.C. § 1491(a) ("The United States Court of Federal Claims

shall have jurisdiction to render judgment upon any claim against the United States ... not

sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010) ("[T]he Tucker Act

expressly excludes tort claims, including those committed by federal officials, from the

jurisdiction of the United States Court of Federal Claims.") (citation omitted). And so, the Court

must dismiss plaintiffs tort claims for lack of subject-matter jurisdiction. RCFC 12(b)(l).

8

2. Plaintiff's Due Process And Equal

Protection Claims Are Also Jurisdictionally Precluded

The Court is similarly without jurisdiction to entertain plaintiffs claims alleging

violations of the Due Process and Equal Protection Clauses of the Fifth and Fourteenth

Amendments. See generally Compl. This Court has long recognized that it does not possess

jurisdiction to consider claims based upon the Fifth Amendment's Due Process Clause, as this

provision is not a money-mandating provision of law. LeBlanc v. United States, 50 F.3d 1025,

1028 (Fed Cir. 1995); see also McCullough v. United States, 76 Fed. Cl. 1, 4 (2006) ("[T]he

Fifth Amendment is not a source that mandates the payment of money to plaintiff."). The Court

is similarly without jurisdiction to consider plaintiffs equal protection and due process claims

brought pursuant to the Fourteenth Amendment. See LeBlanc, 50 F.3d at 1028 (finding the Due

Process and Equal Protection Clauses of the Fourteenth Amendment do not constitute "a

sufficient basis for jurisdiction because they do not mandate payment of money by the

government"); see also Quailes v. United States, 25 Cl. Ct. 659, 664, aff'd, 979 F.2d 216 (Fed.

Cir. 1992) ("This court does not have jurisdiction ... because neither the due process or equal

protection clauses of the Constitution 'obligate the United States to pay money damages."')

(citation omitted). Because the Due Process and Equal Protection Clauses of the Fifth and

Fourteenth Amendments do not create a right to recover money damages from the United States,

plaintiff has not met his burden to establish that the Court possesses jurisdiction to consider his

constitutional claims. 3 RCFC l 2(b )(1 ). And so, the Court must also dismiss these claims.

3. The Court May Not Consider Plaintiff's APA

Claim And Claims For Injunctive And Declaratory Relief

To the extent that plaintiff asserts a claim under the Administrative Procedure Act

("APA"), the Court also does not possess subject-matter jurisdiction to consider this claim. In

the complaint, plaintiff alleges that the DOE's decision to garnish his Social Security disability

benefit payments is "arbitrary, capricious, without factual support, and contrary to law." Compl.

at~~ 1, 69. And so, plaintiff appears to seek judicial review of the DOE' s decision under the

3

Plaintiff also alleges a violation of the Fifth Amendment "as it relates to discrimination upon gender."

Compl. at~~ 112-18. It is well established that the Court does not possess jurisdiction to consider matters

involving gender discrimination. See Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) ("[T]here is

no Tucker Act jurisdiction in the Court of Federal Claims to entertain claims involving race, sex, and age

discrimination or other claims involving civil rights violations.") (citation omitted).

9

AP A. Id. The APA, however, grants exclusive jurisdiction to United States district courts to

review final agency decisions. See, e.g., Faison v. United States, 102 Fed. Cl. 637, 641 (2012);

Vereda, Ltda. v. United States, 271F.3d1367, 1374 n.8 (Fed. Cir. 2001) ("[T]he Court of

Federal Claims lacked the general federal question jurisdiction of the district courts, which

would have allowed it to review the agency's actions and to grant relief pursuant to the

Administrative Procedure Act, 5 U.S.C. §§ 701-706."). And so, the Court does not possess

jurisdiction to entertain plaintiffs AP A claim. RCFC l 2(b)(1 ).

In addition, the Court may not entertain plaintiffs requests for declaratory and injunctive

relief related to his challenge of the DO E's garnishment decision. As discussed above, plaintiff

seeks a declaratory judgment finding that the DOE's garnishment decision was arbitrary,

capricious, without factual support, and contrary to law. Compl. at~ 1. Plaintiff also requests

that the Court enter a declaratory judgment finding that title 20, United States Code, section

1095(a), which allows federal guaranty agencies to garnish student loan debtors' disposable

wages, is unconstitutional. Id.

It is well established that this Court may only grant general equitable relief in limited

circumstances involving certain bid protest matters and matters in which the equitable relief

requested is tied to a money judgment. See 28 U.S.C. § 1491(b)(l) (allowing the Court to grant

equitable relief in certain bid protest cases); see also James v. Caldera, 159 F.3d 573, 580 (Fed.

Cir. 1998) ("[T]he Court of Federal Claims has no power 'to grant affirmative non-monetary

relief unless it is tied and subordinate to a money judgment.'") (citation omitted). No such

circumstances exist here, because the relief that plaintiff seeks-the cancellation of his student

loan debt and a declaration that section 1095(a) is unconstitutional-does not constitute

monetary relief. See Johnson v. United States, 105 Fed. Cl. 85, 96 (2012) (finding that because

the cancellation of a debt does not constitute monetary damages, plaintiffs request for injunctive

and declaratory relief falls outside the jurisdiction of the Court of Federal Claims); see also

Wagstaff, 105 Fed. Cl. at 110 (dismissing plaintiffs request for injunctive and declaratory relief

because the Court does not have jurisdiction to enjoin the DOE's debt collection practices). And

so, the Court must also dismiss plaintiffs claims seeking injunctive and declaratory relief.

RCFC l 2(b )(1 ).

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4. The Court Must Dismiss Plaintiffs Contract Claim

Finally, to the extent that plaintiff alleges a breach of an implied-in-fact contract claim

against the United States, the Court also must dismiss this claim for lack of subject-matter

jurisdiction. RCFC 12(b)(l). In his response to the government's motion to dismiss, plaintiff

alleges for the first time that he entered into an implied-in-fact contract with "the Judge and the

litigants" and the DOE's administrative hearing officer during the administrative and court

proceedings in which he challenged the DOE's garnishment decision. Pl. Resp. at 4, 9; see also

Pl. Sur-Reply at 13. To bring a valid implied-in-fact contract claim against the United States,

plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer

and acceptance; and (4) actual authority to bind the government in contract on the part of the

government official whose conduct is relied upon. Kam-Almaz, 682 F.3d at 1368. He must also

support this claim with well-plead factual allegations going to each element of a contract in the

complaint. See Crewzers Fire Crew Transp. Inc., 741 F .3d at 13 82 (holding that to invoke the

jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded allegation

asserting that his or her claims arose out of a valid contract with the United States); see also

RCFC 9(k) ("In pleading a claim founded on a contract or treaty, a party must identify the

substantive provisions of the contract or treaty on which the party relies.").

Plaintiff does not allege any of the elements of an implied-in-fact contract with the

United States in the complaint, or in his other filings. See generally Compl.; Pl. Resp.; Pl. Sur-

Reply. In fact, the complaint is devoid of any factual allegations to show that plaintiff entered

into a contract with the United States. See generally Compl. Given this, plaintiff has not

presented well-plead allegations that his claim arose out of a valid implied-in-fact contract with

the United States. Crewzers Fire Crew Transp. Inc., 741 F.3d at 1382; see also Toon v. United

States, 96 Fed. Cl. 288, 300 (2010) (finding plaintiff failed to invoke the jurisdiction of the Court

to consider his implied-in-fact contract claim because he did not allege the requisite elements of

a contract between himself and the United States). And so, dismissal of plaintiffs breach of

contract claim is also warranted. RCFC 12(b)(l).

B. The Court Must Also Dismiss Plaintiffs Takings Claims

The Court must also dismiss plaintiffs takings claims regarding the garnishment of his

Social Security disability benefit payments for lack of subject-matter jurisdiction and for failure

11

to state a claim upon which relief may be granted. In the complaint, plaintiff alleges that the

government engaged in the "unlawful takings" of his Social Security disability benefit payments

during the periods July 2009 to November 2009 and February 2013 to December 2015. Compl.

at~~ 33, 87; see also Pl. Sur-Reply at 2 ("The takings referenced in the complaint were Social

Security disability payments, not regular Social Security payments."). But, it is well established

that "[t]his Court does not hear claims for Social Security benefits, even when the plaintiff

alleges entitlement to relief under the U.S. Constitution." Thurman v. United States, No. 04-

1532T, 2005 WL 2065312, at * 1 (Fed. Cl. July 20, 2005); see also Marcus v. United States, 909

F.2d 1470, 1471 (Fed. Cir. 1990) (rejecting a plaintiffs claims for Social Security benefits

because the Claims Court lacked subject-matter jurisdiction under the Tucker Act). In this

regard, the Court has specifically held that a takings claim involving Social Security disability

benefit payments does not fall within the jurisdiction of this Court. See Brown v. United States,

No. 14-121C, 2014 WL 3686140, at *3 (Fed. Cl. July 16, 2014), aff'd, 607 F. App'x 983 (Fed.

Cir. 2015) (finding the Court lacked jurisdiction to consider plaintiffs takings claim for the

taking of his Social Security disability benefit payments); see also Treece v. United States, 96

Fed. Cl. 226, 231 (2010) ("Although the court of Federal Claims has jurisdiction over Fifth

Amendment takings claims under the Tucker Act, the court does not have jurisdiction over

plaintiffs claim because his claim amounts to an appeal of a denial of Social Security benefits.")

(citation omitted). And so, dismissal of plaintiffs takings claim related to his Social Security

disability benefit payments is also appropriate here. RCFC 12(b)(l).

Dismissal of plaintiff's takings claims for failure to state a claim upon which relief may

be granted is also warranted, because plaintiff fails to identify any authorized government action

that could have resulted in a takings in the complaint. RCFC 12(b)( 6). Rather, plaintiff alleges

in the complaint that the takings of his Social Security disability benefit payments occurred as a

result of unauthorized actions on the part of certain DOE employees. Compl. at~~ 6, 99-106

(alleging DOE employees conducted "kangaroo courts," "willfully delay[ed] an investigatory

hearing-for decades," made "false statements to lend credence to a fictional loan debt,"

concealed and tampered with witnesses, and made threats against plaintiff, all to "legitimize

takings of [plaintiffs] private property"). To properly bring suit under the Tucker Act, plaintiff

must concede the validity of the government action that is the basis of his takings claim. Tabb

12

Lakes, Ltd., 10 F.3d at 802. Because plaintiff does not do so here, he fails to state a plausible

takings claim in the complaint. RCFC 12(b)(6). 4

C. Plaintiff's Motion For Judgment Of Default

And Petition For A Partial Writ of Mandamus Is Moot

Plaintiff has also filed a motion styled as "motion for judgment of default and petition for

a partial writ of mandamus." See generally PI. Mot. of Default J. Because the Court has

determined that it must dismiss plaintiffs complaint for lack of subject-matter jurisdiction and

for failure to state a claim upon which relief may be granted, the Court denies plaintiffs motion

as moot. See, e.g., Wojtczak v. United States, No. 12-449C, 2012 WL 4903025, at *4 (Fed. Cl.

Oct. 17, 2012) ("Because plaintiff still has not raised allegations over which this court has

jurisdiction, the court denies these motions as moot."); Nathan v. United States, No. 15-708C,

2015 WL 6756515, at *4 (Fed. Cl. Nov. 4, 2015) (denying plaintiffs motion of default judgment

as moot after dismissing the case for failure to state a claim and for lack of jurisdiction).

D. Plaintiff's Motion For Leave to Proceed

In Forma Pauperis Satisfies The Statutory Requirement

As a final matter, plaintiff has also filed a motion to proceed in forma pauperis and he

requests a waiver of the Court's filing fee. See generally PI. Mot. to Proceed In Forma Pauperis.

The Court may authorize commencement of a suit without prepayment of fees when a person

submits an affidavit including a statement of all assets, a declaration that he or she is unable to

pay the fees, and a statement of the nature of the action and a belief that he or she is entitled to

redress. See 28 U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due to the Court's summary

disposition of this case, and plaintiffs pro se status, the Court finds that plaintiff satisfies the

statutory requirements to proceed in forma pauperis for the purpose of resolving the

government's motion to dismiss. And so, the Court grants plaintiffs motion to proceed informa

pauperis for this purpose.

4

Plaintiffs claims clearly sound in tort. See Earnest v. United States, 33 Fed. Cl. 341, 344 (1995)

("Claims based on unauthorized acts (wrongdoing) by government officials sound in tort."). As discussed

above, the Comi does not possess jurisdiction to consider claims sounding in tort. Hernandez, 96 Fed. Cl.

at 204.

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V. CONCLUSION

In sum, when read in the light most favorable to plaintiff, the complaint clearly

demonstrates that the Court does not possess subject-matter jurisdiction to consider any of

plaintiffs tort, constitutional, APA, or breach of implied-in-fact contract claims. In addition, the

Court does not possess jurisdiction to consider plaintiffs requests for declaratory and injunctive

relief.

The Court must also dismiss plaintiffs takings claim involving his Social Security

disability benefit payments, because the Court does not possess jurisdiction to consider such a

claim and plaintiff fails to state a plausible takings claim in the complaint.

Because the Court has determined that the complaint must be dismissed for lack of

subject-matter jurisdiction and for failure to state a claim upon which relief can be granted, the

Court also denies plaintiffs motion for judgment of default and petition for a partial writ of

mandamus as moot.

Finally, because of plaintiffs pro se status-and plaintiffs representation that he is

unable to pay the Court's filing fee-plaintiff may proceed in this matter in forma pauper is for

the limited purpose of resolving the jurisdictional issues raised by the complaint.

And so, for the foregoing reasons, the Court:

(1) GRANTS defendant's motion to dismiss;

(2) DENIES as moot plaintiffs motion for judgment of default and petition for a

partial writ of mandamus; and

(3) GRANTS plaintiffs motion to proceed informapauperis.

The Clerk's Office is directed to ENTER final judgment in favor of the government,

DISMISSING the complaint. No Costs.

IT IS SO ORDERED.

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