Sherman v. United States

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No. 17-1830C

Fifed: August 20,20'18

FILED

i< + {. * * * * * * * * * * * * * * **

AU6 2 0 20t8

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.

,1. * * * * + 1. !t :* * * * * * * * * **

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