Howard v. United States

ORIGINAL

3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaints

No. 16-1302C

Filed October 17, 2016

FILED

NOT FOR PUBLICATION OCT 1 7 2016

) U.S. COURT OF

MILLIE HOWARD, ) FEDERAL CLAIMS

)

Plaintiff, )

) Pro Se; Rule 12(h)(3), Subject-Matter

v. ) Jurisdiction.

)

THE UNITED ST ATES, )

)

Defendant. )

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

Millie Howard, New Richmond, OH, plaintiff prose.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff pro se, Millie Howard, brought this action challenging the decision of the United

States District Court for the Southern District of Ohio to dismiss her claim for retirement benefits

under the Railroad Retirement Act, 45 U.S.C. § 231, et seq. See generally Compl. For the reasons

set fmih below, the Court DISMISSES plaintiff's claim for lack of subject-matter jurisdiction,

pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims ("RCFC").

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual And Procedural Background

Plaintiff prose, Millie Howard, commenced this action on October 6, 2016, challenging the

decision of the United States District Court for the Southern District of Ohio to dismiss her claim

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The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint ("Compl.");

plaintiffs complaint before the United States District Court for the Southern District of Ohio ("Complaint,

Howard v. United States R.R. Reth·ement Board, No. 15-679 (S.D. Ohio Oct. 19, 2015)"); and the Opinion

and Order issued by the United States District Comt for the Southern District of Ohio, dated September 15,

2016 ("Opinion and Order, Howard v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Sept. 15,

2016)").

for retirement benefits under the Railroad Retirement Act. See generally Comp!. In the complaint,

plaintiff alleges that she is entitled to receive a widow annuity under the Railroad Retirement Act,

due to her deceased husband's employment with the Norfolk Southern Railroad. Id. at I. Plaintiff

further alleges that the United States Railroad Retirement Board ("USRRB") improperly denied her

claim for these benefits and that she was "fraudulently transferred to the Social Security

Administration." Id.

Prior to commencing this action, plaintiff filed litigation in the United States District Court

for the Southern District of Ohio challenging the USRRB's decision to deny her benefits.

Complaint, Howard v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Oct. 19, 2015).

The district court dismissed plaintiffs claim on September 15, 2016. Opinion and Order, Howard

v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Sept. 15, 2016). In addition, the

district court denied plaintiffs motion to transfer the case to this Court on September 15, 2016. Id.

In this litigation, plaintiff seeks a review of the district court's decisions to dismiss her claim

and to deny her motion to transfer. Comp!. at 2. Plaintiff also requests that the Comi appoint a

special prosecutor "to examine the merits, the record, documentary evidence, and applicable

statutory law and render a decision." Id.

III. ST AND ARDS OF REVIEW

A. Pro Se Litigants

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

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

925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.

2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to survive a

motion to dismiss, this Court affords more leeway under the rules to prose plaintiffs than plaintiffs

who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro

se complaints, "however imuifully 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 [the plaintiff] has not

spelled out in his pleadings." Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (brackets

existing; internal quotation omitted).

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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 Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)). And so, the

Court may excuse ambiguities, but not defects, in the complaint. Colbert v. United States, No.

2014-5029, 2015 WL 2343578, at *1 (Fed. Cir. May 18, 2015); see also Demes v. United States, 52

Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere formalities

does not relieve them of jurisdictional requirements.")

B. The Tucker Act And RCFC 12(h)(3)

The United States Court of Federal Claims is a comt of limited jurisdiction and "possess[ es]

only that power authorized by Constitution and statute .... " Kokkonen v. Guardian Life Ins. Co. of

Am., 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 depmtment, or upon any express

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

in cases not sounding in to1t.

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 Comt 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 1167, 1173 (Fed. Cir.

2005)); Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005). "[A] statute or regulation

is money-mandating for jurisdictional purposes ifit '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, 217 (1983)).

Specifically relevant to this matter, it is well established that the Court "does not have

jurisdiction to review the decisions of district comts or the clerks of district comts relating to

proceedings before those courts." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)); see

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also Jones v. United States, No. 15-1044, 2016 WL 447144, *l (Fed. Cl. Feb. 4, 2016). And so, the

Court must dismiss a claim seeking to review the decisions of district courts for lack of subject-

matter jurisdiction. Id.

It is also well established that '"subject-matter jurisdiction, because it involves a comi's

power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H Corp., 546 U.S. 500,

514 (2006) (citations omitted). "[F]ederal comis have an independent obligation to ensure that they

do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional

questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 434 (2011) (citations omitted). "[A] comi has a duty to inquire into its

jurisdiction to hear and decide a case." Special Devices, Inc., v. OEA Inc., 269 FJd 1340, 1342

(Fed. Cir. 2001) (citations omitted).

In addition, "[a] court may and should raise the question of its jurisdiction sua sponte at any

time it appears in doubt." Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988)

(citation omitted). To that end, the Comi may not allow any matter to proceed that alleges a basis

for jurisdiction '"so attenuated and unsubstantial as to be absolutely devoid of merit."' Kroll v.

Finnerty, 242 FJd 1359, 1362 (Fed. Cir. 2001) (quoting Hagans v. Lavine, 415 U.S. 528, 536-37

(1974)). And so, should the Court determine at any stage during litigation that it lacks subject-

matter jurisdiction, the Comi must dismiss the action. RCFC 12(h)(3).

IV. DISCUSSION

A. The Court Does Not Possess

Jurisdiction To Consider Plaintiff's Claim

When read in the light most favorable to plaintiff, the complaint demonstrates that the Court

does not possess subject-matter jurisdiction to entertain plaintiffs claim. RCFC 12(h)(3). In the

complaint, plaintiff requests that the Court review the decision of the United States District Comi

for the Southern District of Ohio to dismiss her claim for railroad retirement benefits. See generally

Comp!. Plaintiff also requests that the Court review the district court's decision to deny her motion

to transfer that claim to this Comi. Id. at 1-2.

The United States Comi of Appeals for the Federal Circuit has held that the United States

Court of Federal Claims does not possess jurisdiction to review the decisions of district comis

relating to proceedings before those courts. Joshua, 17 F.3d at 380. Because plaintiff

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acknowledges in her complaint that this is precisely the relief that she seeks here, the Court does not

possess subject-matter jurisdiction to consider plaintiff's claim. And so, the Court must dismiss the

complaint for lack of subject-matter jurisdiction. RCFC 12(h)(3).

V. CONCLUSION

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

demonstrates that the Court does not possess subject-matter jurisdiction to entertain plaintiff's

claim. And so, the Court DISMISSES the complaint pursuant to RCFC 12(h)(3).

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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