Gulley v. United States

In the United States Court of Federal Claims

No. 19-1816C

(Filed: October 19, 2020)

)

CARL L. GULLEY, )

RCFC 12(b)(1); RCFC 12(b)(6); RCFC

)

Plaintiff, 12(h)(3); RCFC 10(a); RCFC 41(b);

)

mootness; failure to prosecute; Tucker

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v. Act claims; illegal exaction claims;

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money-mandating claims; takings

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THE UNITED STATES, claims; federal education loan

)

discharge.

)

Defendant. )

Carl L. Gulley, Little Rock, AR, pro se.

Russel J. Upton, United States Department of Justice, Civil Division, Washington, DC, for

defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General,

Civil Division, Robert E. Kirschman, Jr., Director, and Tara Hogan, Assistant Director,

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

Washington, DC.

OPINION AND ORDER

SOLOMSON, Judge.

On November 19, 2019, Plaintiff, Mr. Carl L. Gulley, proceeding pro se, filed a

Complaint with this Court. ECF No. 1 (“Compl.”). The Complaint alleges primarily

that “the U.S. Department of the Treasury, and the U.S. Department of Education

[‘DOE’], intentionally or willfully deprived [Mr. Gulley] of part of his Social Security

Disability Income (‘SSDI’)” and improperly used it to pay for Mr. Gulley’s overdue,

government student loans. Id. at 4.

On January 17, 2020, the Court granted the government’s motion for extension of

time to file its answer. ECF No. 10. On February 19, 2020, the Court granted

Mr. Gulley’s motion for leave to file an amended complaint, ordering that it be filed on

or before March 9, 2020. ECF No. 11. The Court subsequently extended the time for

Mr. Gulley to file his amended complaint, to and including March 25, 2020. ECF No. 12.

The Court further instructed the government to file its answer to the original Complaint

if Mr. Gulley failed to file his amended complaint in a timely manner “and [that] no

further leave to amend the complaint [would] be granted absent good cause shown.”

Id. Mr. Gulley never filed an amended complaint.

On May 11, 2020, the government filed its motion to dismiss Mr. Gulley’s

original Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United

States Court of Federal Claims (“RCFC”). ECF No. 14 (“Def. Mot.”). Mr. Gulley,

however, never filed a response to the government’s motion. Id. at 3 n.1. For the

reasons explained below, the government’s motion to dismiss Mr. Gulley’s Complaint

hereby is GRANTED and Mr. Gulley’s Complaint is DISMISSED.

I. FACTUAL BACKGROUND

In March 2016, Mr. Gulley received two Federal Direct Student Loans totaling

$6,333.00, to attend Diesel Driving Academy. ECF No. 1-2 (“Compl. Exh.”) at 3; see Def.

Mot. at 2. When Mr. Gulley failed to repay his student loans in a timely manner, his

loans were declared in default. Def. Mot. at 2. Thereafter, Mr. Gulley’s DOE student

loan servicer, Nelnet, transferred his account to DOE’s Default Resolution Group

(“DRG”). Compl. Exh. at 3. On April 15, 2019, Mr. Gulley’s loans first appeared in

DOE’s Debt Management Collection System database for possible collection. Id.

On April 18, 2019, DOE informed Mr. Gulley that, if his outstanding student

loans were not repaid within 65 days, his debt would be referred to the U.S.

Department of the Treasury’s (“Treasury”) Bureau of the Fiscal Service, Debt

Management Services, for offset of his SSDI payments. Compl. Exh. at 4. DOE

informed Mr. Gulley that as long as any offset did not reduce his SSDI payments below

$750.00 per month, Treasury could offset Mr. Gulley’s debt by taking up to 15% of his

SSDI payments, pursuant to 31 U.S.C. § 3716(c)(3)(A). Compl. Exh. at 4. Even after

DOE sent Mr. Gulley the April 18, 2019 notice, Mr. Gulley still did not repay his

outstanding student loan debt, and DOE thus referred Mr. Gulley’s account to Treasury

for offset. Id.

On August 2, 2019, Treasury notified Mr. Gulley that funds would be withheld

from his SSDI payments beginning in October 2019. Compl. Exh. at 1. Shortly

thereafter, on August 16, 2019, Mr. Gulley sent Treasury a letter in which he argued that

“he, ‘Carl L. Gulley,’ and the corporate entity, ‘CARL L. GULLEY,’ are not the same,

that only the corporate entity is responsible for his student loan debt, that the debt

should be discharged, and that the SSDI payment offsets should stop.” Def. Mot. at 3;

see Compl. Exh. at 2. On September 20, 2019, Treasury sent Mr. Gulley a written

response, explaining why Treasury could collect the debt from him, personally. Compl.

Exh. at 5. Following that, beginning in October 2019 and ending in January 2020,

Treasury offset Mr. Gulley’s SSDI payments on four occasions. See Def. Mot. at 50.

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Mr. Gulley’s Complaint requests various forms of relief, which the Court

identifies and references throughout this opinion, for ease of reference, as specific

“Counts.” Compl. at 7-8 (“Relief Sought”). First, Mr. Gulley requests that this Court

find that “plaintiff Carl L. Gulley, and corporate entity CARL L. GULLEY, are single,

separate beings or individuals,” Id. at 7-8, and thus hold that any student loan debt is

“indebted to the corporate entity . . . and not to [Mr. Gulley.]” Id. at 8 (Counts 1–3).

Second, Mr. Gulley seeks monetary damages for what he characterizes as a “taking” of

parts of his SSDI payments. Id. at 6, 8 (Count 4). Third, Mr. Gulley claims that the

defendants have committed various due process and civil rights violations. Id. (Counts

5 & 7). Fourth, Mr. Gulley seeks an injunction to stop the offsets of his SSDI payments.

Id. (Count 6). Finally, Mr. Gulley asks that this Court award him punitive damages in

the amount of $3,000,000.00. Id. at 8-9 (Count 7).

Before Mr. Gulley even filed his Complaint, however, President Trump signed an

executive order that adopted a “process . . . to facilitate the swift and effective discharge

of the Federal student loan debt of totally and permanently disabled [(‘TPD’)]

veterans.” Discharging the Federal Student Loan Debt of Totally and Permanently

Disabled Veterans, 84 Fed. Reg. 44,677 (Aug. 21, 2019) (”the Executive Order”). On

November 26, 2019, DOE updated its regulations consistent with the Executive Order.

See Total and Permanent Disability Discharge of Loans Under Title IV of the Higher Education

Act, 84 Fed. Reg. 65000, 65005 (Nov. 26, 2019) (codified at 34 C.F.R. §§ 674.61, 682.402,

685.213) (“As a result of this automated process . . . there will no longer be a need for,

nor will the Department have the discretion to require, a separate application from

identified borrowers.”).

Thus, as the government represents in its motion, “prior to Mr. Gulley filing his

complaint in this Court, efforts already were underway to determine whether

numerous veterans (including Mr. Gulley) were eligible for TPD discharges of their

Federal student loans.” Def. Mot. at 4. On January 12, 2020, the Department of

Veterans Affairs (“VA”) provided DOE with the necessary documentation so that the

latter could determine whether Mr. Gulley was eligible for a TPD discharge of his

Federal student loans. Def. Mot. at 52-54. The next day, on January 13, 2020, DOE

notified Mr. Gulley that, in fact, he was eligible for a TPD discharge of his Federal

student loans. Def. Mot. at 47-49. In its notice, DOE informed Mr. Gulley that:

[T]he [] balance of your loans will be forgiven. In addition, all

payments on your loans received after 10/31/2008, including

payments collected through wage garnishment or Treasury

offset, will be refunded. . . . We will automatically discharge

your federal student loans . . . unless you tell us that you do

not want to have your loans discharged.

Id. at 47 (emphasis added). DOE’s notice thus made clear that, unless Mr. Gulley notified

DOE otherwise, DOE would discharge Mr. Gulley’s loans on March 14, 2020. Id.

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Mr. Gulley never notified DOE that it should not discharge his loans. DOE

accordingly discharged all of Mr. Gulley’s outstanding Federal student loans on March

14, 2020. Def. Mot. at 56-57. Treasury thereafter processed refunds for the offsets of Mr.

Gulley’s SSDI payments, Def. Mot. at 59, and issued four separate refund checks (Def.

Mot. at 60-67), for a total refund of $544.05. Def. Mot. at 50. The government included

with its Motion to Dismiss copies of checks that Mr. Gulley apparently received,

“endorsed [], and deposited[] on April 3, 2020[] into his [personal] bank account.” Def.

Mot. at 5; see id. at 59-67. Thus, “all of the offsets of Mr. Gulley’s SSDI payments have

been refunded and his student loan debt fully discharged.” Id.

II. THE JURISDICTION OF THE U.S. COURT OF FEDERAL CLAIMS

This Court has a duty to ensure that it has jurisdiction over any claim presented

before it. See, e.g., St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir.

2019); RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). As a threshold matter, “[a]bsent a

waiver, sovereign immunity shields the Federal Government and its agencies from

suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Accordingly, “except as Congress has

consented to a cause of action against the United States, ‘there is no jurisdiction in the

Court of [Federal] Claims more than in any other court to entertain suits against the

United States.’” United States v. Testan, 424 U.S. 392, 400 (1976) (quoting United States v.

Herwood, 312 U.S. 584, 587-588 (1941)). Generally, “the jurisdiction of the Court of

Federal Claims is defined by the Tucker Act, which gives the court authority to render

judgment on certain monetary claims against the United States.” RadioShack Corp. v.

United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009). In pertinent part, the Tucker Act

provides:

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. § 1491(a)(1).

Thus, the Tucker Act vests this Court with jurisdiction and waives the sovereign

immunity of the United States “[f]or actions pursuant to contracts with the United

States, actions to recover illegal exactions of money by the United States, and actions

brought pursuant to money-mandating statutes, regulations, executive orders, or

constitutional provisions[.]” Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004).

The Tucker Act, however, “does not create a substantive cause of action[.]” Fisher v.

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United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). Moreover, “[n]ot every

claim invoking the Constitution, a federal statute, or a regulation is cognizable under

the Tucker Act.” United States v. Mitchell, 463 U.S. 206, 216 (1983).

Courts treat a pro se plaintiff’s pleadings with less scrutiny and give them a more

liberal construction than pleadings prepared by counsel. See Castro v. United States, 540

U.S. 375, 381 (2003). “[E]ven pro se plaintiffs,” however, “must persuade the court that

[its] jurisdictional requirements have been met[.]” Hale v. United States, 143 Fed. Cl. 180,

184 (2019) (citing Bernard v. United States, 59 Fed. Cl. 497, 499 (2004), aff’d, 98 F. App’x

860 (Fed. Cir. 2004)).

III. MR. GULLEY’S COMPLAINT MUST BE DISMISSED

Taking into consideration Mr. Gulley’s pro se status by broadly construing his

arguments, and even assuming that all of his plausible factual allegations are true, as the

Court must at this stage,1 this Court nevertheless holds that all of Mr. Gulley’s claims

either fall outside of this Court’s jurisdiction or fail to state a claim upon which relief

can be granted as a matter of law. In either case, Mr. Gulley’s claims must be dismissed.

1 The government’s motion to dismiss challenges the factual basis for the Court’s subject-matter

jurisdiction (i.e., in arguing that Mr. Gulley’s claims have been rendered moot by the Executive

Order and as a result of his funds having been refunded to him). Accordingly, for the purposes

of resolving that motion, “the allegations in the complaint are not controlling.” Cedars-Sinai

Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (citing KVOS, Inc. v. Associated Press, 299

U.S. 269, 277–79 (1936)). Rather, the Court has accepted as true “only uncontroverted factual

allegations” and has made factual findings regarding the “controverted jurisdictional

allegations.” Id. at 1583–84. The government also moves to dismiss the Complaint for failure to

state a claim. For the purposes of resolving that motion, this Court assumes, as it must, that the

factual allegations – but not legal conclusions – contained in Mr. Gulley’s Complaint are true.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[F]or the purposes of a motion to dismiss we must

take all of the factual allegations in the complaint as true.” (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)). The Court also has considered “matters incorporated by reference or

integral to the claim, items subject to judicial notice, [and] matters of public record[]” –

particularly the Exhibits which the government attached to its motion to dismiss – which the

Court properly may consider without converting the motion to dismiss into a motion for

summary judgment. Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015)

(quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.

2004)). Nonetheless, the Court has derived the above factual background section from the

allegations contained in Mr. Gulley’s Complaint.

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A. Mr. Gulley’s Complaint Is Subject to Dismissal For Failure To Prosecute

Before addressing the government’s pending motion to dismiss, the Court notes

that Mr. Gulley never filed an opposition to that motion. As such, this Court would be

justified in dismissing Mr. Gulley’s Complaint for failure to prosecute. RCFC 41(b) (“If

the plaintiff fails to prosecute . . . the court may dismiss on its own motion[.]”); see Cerf

v. United States, 621 F. App’x 651, 652 (Fed. Cir. 2015) ( “[Plaintiff] failed to file an

opposition to the government’s motion to dismiss by the trial court’s . . . deadline.

Accordingly, . . . the court dismissed [plaintiff’s] complaint for failure to prosecute.”).

In some cases, this Court’s dismissal for failure to prosecute pursuant to RCFC

41(b) is triggered by a government motion. See, e.g., Coakley & Williams Constr., Inc. v.

United States, 2012 WL 2866291, at *1 (Fed. Cl. July 13, 2012) (dismissing case pursuant

to RCFC 41(b) where the government sought “dismissal of plaintiff’s complaint with

prejudice for failure to prosecute”). In other cases, this Court has first ordered the

plaintiff to show cause for failing to respond to the government’s motion before

dismissing for failure to prosecute. E.g., Reaves v. United States, 2005 WL 6112619, at *1

(Fed. Cl. Aug. 5, 2005) (“Defendant filed a motion to dismiss, which Plaintiff failed to

timely oppose. . . .[Then], the Court entered an Order to Show Cause directing Plaintiff

to demonstrate why the Court should not dismiss his complaint for failure to

prosecute.”).

Here, the government did not move to dismiss Mr. Gulley’s Complaint for

failure to prosecute, and this Court did not issue a show cause order, directing

Mr. Gulley to respond to the government’s motion to dismiss. Accordingly, although

Mr. Gulley “did not timely respond to the government's motion to dismiss this case” –

which warrants dismissal in its own right – the Court concludes infra that “even if

[Plaintiff] had responded, the case still would have been dismissed[,]” either for lack of

jurisdiction, or on the merits for failure to state a claim. Thomas-Bey v. United States,

2018 WL 415684, at *1 (Fed. Cl. Jan. 11, 2018).

B. Mr. Gulley’s Complaint Improperly Identifies Individual Defendants

Mr. Gulley’s Complaint does not comply with this Court’s rules. Pursuant to

RCFC 10(a), “the United States [must be] designated as the party defendant.” This

means not only that the United States must be included as a party defendant, but also

that it must be the sole defendant named in a plaintiff’s complaint. Kemp v. United

States, 124 Fed. Cl. 387, 392-93 (2015) (“The only proper defendant for any matter before

this court is the United States, not its officers, nor any other individual.” (emphasis

added)). Mr. Gulley’s Complaint included as defendants a list of other government

agencies and officials, including two Executive Branch cabinet members. Compl. at 1-2.

Such individuals, however, are not proper defendants in this Court, regardless of any

potential connection between those officials and the claims at issue. See RCFC 10(a).

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Failure to follow this Court’s Rules may, in some instances, independently

warrant dismissal of an action. See RCFC 41(b) (providing for sua sponte dismissal “[i]f

the plaintiff fails . . . to comply with these rules”); Whiting v. United States, 99 Fed. Cl. 13,

17 (2011) (citing Kadin Corp. v. United States, 782 F.2d 175, 176–77 (Fed. Cir. 1986), for the

proposition that although “dismissal of a claim is a harsh action, especially to a pro se

litigant, it is justified when a party fails to pursue litigation diligently and disregards

the court’s rules”).

Although the Court does not rely upon RCFC 10(a) here to dismiss Mr. Gulley’s

Complaint in its entirety, his claims against individual government officials and specific

agencies must be dismissed pursuant to RCFC 12(b)(1) and 12(h)(3). Claims against

individuals – even in their official capacity as government officials – fall outside of this

Court’s jurisdiction, as this Court only possesses jurisdiction to decide suits against the

United States. See Sherwood, 312 U.S. at 588 (“[I]f the relief sought is against others than

the United States the suit as to them must be ignored as beyond the jurisdiction of the

court.”). To the extent Mr. Gulley’s Complaint includes claims seeking relief against

individual defendants, the Court lacks jurisdiction over such claims, which hereby are

DISMISSED pursuant to RCFC 12(b)(1) and 12(h)(3).

C. Mr. Gulley’s Primary Claims Are Moot Because His Student Loan Debt Has

Been Discharged And Any Offsets Have Been Refunded

The government, in its motion, argues that, even if Mr. Gulley’s allegations could

support a takings claim or an illegal exaction claim, this case is moot and should be

dismissed. Def. Mot. at 8. In particular, because of regulatory and policy changes

arising from the Executive Order regarding student loan debt, all of Mr. Gulley’s loan

debt has been discharged, and any previous garnishment of his SSDI payments have

been refunded. Id. As such, the government contends that there is no justiciable case or

controversy before this Court. Id. Additionally, because the Executive Order

discharged Mr. Gulley’s loan debts entirely, the government maintains that there is no

risk of future garnishment that this Court might remedy through any other relief. Id.

Indeed, as of today, all of Mr. Gulley’s student loan debt apparently has been

discharged, any offsets have been halted, and all of Mr. Gulley’s previous SSDI

payment offsets have been refunded. Def. Mot. (ECF No. 14) at 56-57. Accordingly, the

government is correct: Mr. Gulley’s claims are moot, and his Complaint should be

dismissed for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1). Myers

Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)

(“[M]ootness . . . is a threshold jurisdictional issue.”); CBY Design Builders v. United

States, 105 Fed. Cl. 303, 328 (2012) (“[M]ootness of a case is properly the subject of an

RCFC 12(b)(1) motion.”).

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Federal courts lack the power to decide questions that cannot affect the rights of

litigants in the case before them. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); see Monk

v. Shulkin, 855 F.3d 1312, 1316 (Fed. Cir. 2017). This doctrine, commonly referred to as

“mootness,” derives from the Constitutional requirement that Federal courts may only

exercise judicial power when a “case or controversy” exists. U.S. Const., art. III, sec. 2,

cl. 1. Thus, if a decision on the merits of the case is incapable of “affect[ing] the rights of

the litigants in the case before” a federal court, there is no justiciable case or

controversy. Liner v. Jafco, Inc., 375 U.S. 301, 306 (1964).

This Court applies Article III case or controversy requirements. See Starr Int’l Co.,

Inc. v. United States, 856 F.3d 953, 964 (Fed. Cir. 2017) (“’The Court of Federal Claims,

though an Article I court . . . applies the same standing requirements enforced by other

federal courts created under Article III.’” (quoting Anderson v. United States, 344 F.3d

1343, 1350 n.1 (Fed. Cir. 2003))); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359

(Fed. Cir. 2009); Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1562 (Fed. Cir. 1990).

Particularly, this Court has held that:

The better view is not that [mootness] is a matter of prudence,

but rather that a ‘case or controversy,’ 28 U.S.C. §§ 2517, 2519,

which Congress has placed under the jurisdiction of both our

Court and the Federal Circuit, must necessarily meet the

Article III justiciability requirements. . . .It may be a matter of

choice, but the choice was made by Congress, not our Court[.]

Tech. Innovations, Inc. v. United States, 93 Fed. Cl. 276, 278 (2010) (citations omitted); see

Tender Years Learning Corp. v. United States, 128 Fed. Cl. 265, 270 (2016) (“Although

mootness is part of the ‘case or controversy’ requirement in Article III of the United

States Constitution . . . the doctrine also applies in this Article I Court.”); see also Indus.

for the Blind, Inc. v. United States, 120 Fed. Cl. 132, 135 (2015); Brookfield Relocation Inc. v.

United States, 113 Fed. Cl. 74, 77 (2013).

In defining the contours of this doctrine, the Federal Circuit has held that “[t]he

party asserting mootness bears the burden of demonstrating that (1) there is no

reasonable expectation that the alleged violation will recur, and (2) interim relief or

events have completely and irrevocably eradicated the effects of the alleged violation.”

Sumecht NA, Inc. v. United States, 923 F.3d 1340, 1345 (Fed. Cir. 2019) (quotations

omitted). “’Simply stated, a case is moot when the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest in the outcome.’” Yingbin-Nature

(Guangdong) Wood Indus. Co. v. Int’l Trade Comm’n, 535 F.3d 1322, 1329 (Fed. Cir. 2008)

(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). In the present case, both of

these requirements have been met.

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First, the Executive Order and the government’s implementation of that order

has eliminated the alleged harm regarding which Mr. Gulley complains. In addition to

DOE’s having discharged Mr. Gulley’s loans, the Treasury also has refunded previously

garnished SSDI payments. Def. Mot. at 60-67. In that regard, the government’s reliance

on Robinson v. United States, 2017 WL 1808117 (Fed. Cl. May 5, 2017), is well-placed. In

Robinson, which also involved a plaintiff challenging the garnishment of SSDI

payments, this Court held that because the plaintiff “ha[d] obtained all other relief she

sought, her complaint [was] moot.” Id. at *1. Here too, the government repaid the

funds previously garnished from Mr. Gulley and thus has mooted any alleged injury.

Moreover, the fact that a live case or controversy was present when Mr. Gulley filed his

Complaint is immaterial, as “to avoid dismissal for mootness, an actual controversy

must remain at all stages, not merely at the time the complaint is filed.” Gerdau

Ameristeel Corp. v. United States, 519 F.3d 1336, 1340 (Fed Cir. 2008) (citing Steffel v.

Thompson, 415 U.S. 452, 460 n.10 (1974)); see Tech. Innovations, 93 Fed. Cl. at 278 (

“mootness is an exception to ‘the long-standing rule in the Federal courts that

jurisdiction is determined at the time the suit is filed and, after vesting, cannot be

ousted by subsequent events, including action by the parties[]’” (quoting F. Alderete

Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed. Cir. 1983))).

Second, even assuming the government improperly garnished or otherwise took

Mr. Gulley’s SSDI payments, there is no reasonable expectation that the taking or

garnishment will occur again. This is because, once a loan has been discharged, the

lender can no longer assert rights to the previously due funds. See Discharge, Black’s

Law Dictionary (11th ed. 2019) (defining the term “discharge” to mean “[a]ny method

by which a legal duty is extinguished; esp., the payment of a debt or satisfaction of

some other obligation[]”); cf. Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440,

(2004) (“The discharge order releases a debtor from personal liability with respect to

any discharged debt by voiding any past or future judgments on the debt and by

operating as an injunction to prohibit creditors from attempting to collect or to recover

the debt”); Helman v. Bank of Am., 685 F. App’x 723, 728 (11th Cir. 2017) (“The discharge

also protects you from any efforts by anyone to collect this discharged debt as a

personal liability of the debtor.”). Because the Executive Order discharged Mr. Gulley’s

loans, he no longer owes the sums at issue to the government. As such, even if the

Executive Order were rescinded, the government would be unable to garnish

Mr. Gulley’s SSDI payments in the future. At least one other federal court has reached

this same conclusion. See Bourg v. Dept. of Treasury Financial Management Service, Inc.,

2009 WL 890666, at *1 (E.D. La. Mar. 31, 2009) (holding that because the “offset against

[plaintiff’s] disability payment was reversed upon the Government’s receipt of his

discharge application, collection actions have been suspended, and . . . [plaintiff] has

been granted a total and permanent discharge of his student loans[,] . . . there is no basis

for the Court to conclude that [plaintiff’s] disability benefits risk a future offset relative

to his now discharged student loans[]”).

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Because Mr. Gulley’s loan debt has been entirely discharged and all previous

garnishments of his SSDI payments have been fully refunded, the government’s

implementation of the Executive Order (and the subsequent actions of DOE and

Treasury) have remedied Mr. Gulley’s alleged injury. Accordingly, whether

Mr. Gulley’s Complaint is understood as asserting a takings claim, an illegal exaction

claim, or any other kind of claim for funds withheld, such allegations are moot, and the

Complaint hereby is DISMISSED pursuant to RCFC 12(b)(1).

D. Even If Mr. Gulley’s Case Were Not Moot, The Court Does Not Possess

Subject-Matter Jurisdiction Over Counts 1–3 And Counts 5–7 of

Mr. Gulley’s Complaint

At the outset, the Court notes that “[i]n Tucker Act jurisprudence, [the] neat

division between jurisdiction and merits has not proved to be so neat[,] [as] [i]n these

cases, involving suits against the United States for money damages, the question of the

court’s jurisdictional grant blends with the merits of the claim[] [and] [t]his mixture has

been a source of confusion for litigants and a struggle for courts.” Fisher, 402 F.3d at

1171–72; see Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (“Courts

frequently confuse or conflate the distinction between subject matter jurisdiction and

the essential elements of a claim for relief.”). The undersigned highlighted this

difficulty in a recent decision. See Perry v. United States, 149 Fed. Cl. 1, 10-11 (2020).

Thus, the Court reiterates that, in reviewing a plaintiff’s complaint, our jurisdictional

determination is not governed by the plaintiff’s characterization of its claims and

“[t]hreadbare recitals of [claim] elements . . ., supported by mere conclusory

statements” do not suffice. Crow Creek Sioux Tribe v. United States, 900 F.3d 1350, 1354-

55 (Fed. Cir. 2018). With that in mind, the Court holds that the bulk of Mr. Gulley’s

claims fall outside of this Court’s subject-matter jurisdiction in at least four respects.

First, as noted, for a statutory or constitutional provision to serve as the basis for

a claim within this Court’s jurisdiction, the provision must either be money-mandating

or support a claim for an illegal exaction. See Testan, 424 U.S. at 398; Contreras v. United

States, 64 Fed. Cl. 583, 588 (2005). With respect to “money-mandating” claims, in

particular,2 a statute — or other provision of law — creates a right capable of grounding

a claim within the waiver of sovereign immunity if, but only if, it “can fairly be

interpreted as mandating compensation by the Federal Government for the damage

sustained.” Mitchell, 463 U.S. at 217 (quoting Testan, 424 U.S. at 400) (internal quotation

marks omitted); see also Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327

(2020). With the exception of Mr. Gulley’s takings claim pursuant to the Fifth

Amendment (which the Court addresses infra), none of the other statutory provisions

that Mr. Gulley cites in his Complaint bring his claims within this Court’s jurisdiction.

2 The Court separately addresses whether Mr. Gulley has sufficiently pleaded a claim for an

illegal exaction, see infra Part III.D.

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In particular, the due process clause of the U.S. Constitution and 42 U.S.C. § 1983

(both of which Mr. Gulley cites in his Complaint) are not money mandating sources of

law. Harris v. United States, 868 F.3d 1376, 1381 (Fed. Cir. 2017) (quoting In re United

States, 463 F.3d 1328, 1335 n.5 (Fed. Cir. 2006), for the proposition that “‘because the Due

Process Clause is not money-mandating, it may not provide the basis for jurisdiction

under the Tucker Act[]’”);3 Ramirez v. United States, 239 F. App’x 581, 583 (Fed. Cir.

2007) (citing District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973), for the proposition

that “the Court of Federal Claims does not have jurisdiction over [plaintiff’s] claims of

civil rights violations under section[] 1983 . . . of Title 42; the general civil rights claims

alleged are not based on any money-mandating provisions, and those statutes do not

give rise to liability for the United States[]”).

Second, Mr. Gulley’s claim alleging that DOE was engaged in an “underhanded

scheme” which caused Mr. Gulley “severe distress[,]” Compl. at 7, sounds in tort, and

thus fall outside of the Tucker Act’s express grant of this Court’s jurisdiction. 28 U.S.C.

§ 1491(a)(1) (“not sounding in tort” (emphasis added)); see U.S. Marine, Inc. v. United

States, 722 F.3d 1360, 1371–72 (Fed. Cir. 2013).

Third, Mr. Gulley’s allegation that DOE or other individuals committed various

crimes, such as pursuant to 18 U.S.C. § 242, similarly falls outside of this Court’s

subject-matter jurisdiction. Sanders v. United States, 252 F.3d 1329, 1335 (Fed. Cir. 2001)

(quoting Kania v. United States, 650 F.2d 264, 268 (Cl. Ct. 1981), for the proposition that

the “‘function of enforcing and policing the criminal law is assigned to the courts of

general jurisdiction and not to [the Court of Federal Claims]’”).

Finally, Mr. Gulley’s further requests for relief similarly fall outside of this

Court’s subject-matter jurisdiction. For example, punitive damages, see Compl. at 9, are

“not available in this court.” Rig Masters, Inc. v. United States, 42 Fed. Cl. 369, 373 (1998);

see Greene v. United States, 65 Fed. Cl. 375, 379 (2005). Similarly, this Court also may not

grant the injunctive relief that Mr. Gulley seeks, see Compl. at 8, as “the Court of Federal

Claims has no power to grant affirmative non-monetary relief unless it is ‘tied and

subordinate to a money judgment[.]’” Ute Indian Tribe of Uintah and Ouray Indian

Reservation v. United States, 145 Fed. Cl. 609, 632 n.17 (2019) (quoting James v. Caldera, 159

F.3d 573, 580 (Fed. Cir. 1998)).

3

One potential exception to this rule is a claim for an illegal exaction. E.g., Casa de Cambio

Comdiv S.A. de C.V. v. United States, 48 Fed. Cl. 137, 143-48 (2000) (holding “that this court has

jurisdiction to consider whether the alleged violation of the regulations led to an illegal exaction

violative of the Due Process Clause, despite the fact that clause does not contain compensation

mandating language”), aff’d, 291 F.3d 1356, 1363 (Fed. Cir. 2002) (“[T]here is no jurisdiction

under the Tucker Act over a Due Process claim unless it constitutes an illegal exaction.”

(emphasis added)). The Court addresses Mr. Gulley’s possible illegal exaction claim, infra.

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Accordingly, even if Mr. Gulley’s Complaint were not moot, Counts 1-3 and

Counts 5-7 of Mr. Gulley’s Complaint fall outside of this Court’s subject-matter

jurisdiction, and hereby are DISMISSED, pursuant to RCFC 12(b)(1) and 12(h)(3).

E. Mr. Gulley’s Takings Claim Falls Outside Of This Court’s Subject-Matter

Jurisdiction Or, Alternatively, Fails To State A Claim Upon Which Relief

Can Be Granted As A Matter Of Law

Although the government seeks dismissal of Mr. Gulley’s putative takings claim

pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief can be granted

as a matter of law, see Def. Mot. at 1, the Court questions whether Mr. Gulley’s

Complaint contains sufficient non-conclusory, factual allegations so as to vest this Court

with jurisdiction. Monzo v. United States, 2013 WL 6235608, at *3 (Fed. Cl. Nov. 27, 2013)

(holding that even if a complaint alleges the violation of “a statute or regulation [which]

does mandate the payment of money[,]” in order “to trigger jurisdiction . . . plaintiff

[must] show[] that he is within the class of plaintiffs entitled to recover under the

money-mandating source”) (quotations and citation omitted); see Crow Creek Sioux Tribe,

900 F.3d at 1354–55. Notably, this Court and all “federal courts 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); see

RCFC 12(h)(3); Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348 (Fed. Cir. 2010).

“It is undisputed that the Takings Clause of the Fifth Amendment is a money-

mandating source for purposes of Tucker Act jurisdiction.” Jan’s Helicopter Serv., Inc. v.

FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). Thus, where a plaintiff “[1] allege[s] a taking

[2] of their property [3] by the government” and is “within the class of plaintiffs entitled

to recovery if a takings claim is established,” the Court of Federal Claims has subject-

matter jurisdiction over the plaintiff’s takings claim. 525 F.3d at 1309. On the other

hand, a complaint that “fails to mention the Takings Clause or the Fifth Amendment at

all” or that “fails to allege facts sufficient to establish responsibility of the United States

for [the] acts” or that is founded upon the premise “‘that the United States has taken

unlawful action’” is insufficient to invoke this Court’s jurisdiction. Landreth v. United

States, 797 F. App’x 521, 523 (Fed. Cir. 2020) (quoting Moody v. United States, 931 F.3d

1136, 1142 (Fed. Cir. 2019)).

To be clear, Mr. Gulley cannot invoke this Court’s subject-matter jurisdiction

over his Complaint merely by employing the magic word “taking.” See Barksdale v.

United States, 582 F. App’x 890, 892 (Fed. Cir. 2014) (per curiam) (“Despite the use of the

word ’taking,’ these are claims under the First and Fourteenth Amendment, which the

Claims Court properly ruled [were] outside its jurisdiction.”). Thus, Mr. Gulley’s

repeated references throughout his Complaint to the government’s “taking” of his SSDI

payments, Compl. at 6-8, standing alone, do not vest this Court with jurisdiction.

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Moreover, a plaintiff seeking compensation for a taking “‘must concede the

validity of the government action which is the basis of the . . . claim.’” Mahoney v.

United States, 129 Fed. Cl. 589, 593 (2016) (quoting Tabb Lakes, Ltd. v. United States, 10

F.3d 796, 802 (Fed. Cir. 1993)); see also Gahagan v. United States, 72 Fed. Cl. 157, 161-62

(2006) (citing Fla. Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed. Cir. 1986), for

the proposition that a plaintiff’s insistence that the government’s alleged taking was

“unlawful . . . places the claim outside a takings context”); Acadia Tech., Inc. v. United

States, 458 F.3d 1327, 1330 (Fed. Cir. 2006) (explaining that a “takings claim” pursuant to

the Tucker Act is “separate from a challenge to the lawfulness of the government’s

conduct”). Here, Mr. Gulley clearly challenges the validity of the government’s action

in alleging that “defendants . . . unfairly, unjustly, [and] injuriously . . . are actually

taking” his SSDI payments “for the purpose of cheating or defrauding plaintiff[.]”

Compl. at 8. As such, Mr. Gulley does not “concede the validity” of Treasury’s offset,

and thus Mr. Gulley’s claim falls outside of this Court’s jurisdiction and must be

dismissed pursuant to RCFC 12(b)(1). Tabb Lakes, 10 F.3d at 802; see Milgroom v. United

States, 651 F. App’x 1001, 1005 (Fed. Cir. 2016) (explaining that, “[w]hile the Claims

Court does possess jurisdiction to consider certain takings claims under the Fifth

Amendment, it may only exercise that jurisdiction when the claimant ‘concede[s] the

validity of the government action’” (quoting Tabb Lakes, 10 F.3d at 802–03)); Whiteford v.

United States, 148 Fed. Cl. 111, 120 n.3 (2020) (dismissing takings claims based upon

alleged unlawful agency action for lack of subject-matter jurisdiction). This Court also

“has specifically held that a takings claim involving Social Security disability benefit

payments does not fall within [our] jurisdiction[.]” Topping v. United States, 2016 WL

3606059, at *7 (Fed. Cl. June 29, 2016); see Brown v. United States, 2014 WL 3686140, at *3

(Fed. Cl. July 16, 2014), aff’d, 607 F. App’x 983, 984 (Fed. Cir. 2015) (affirming this

Court’s decision to dismiss for lack of jurisdiction plaintiff’s claim for the taking of his

Social Security disability benefit payments).

In light of the above, and given the Court’s duty to ensure that it possesses

jurisdiction over any of Mr. Gulley’s claims, the Court holds that even if his takings

claim were not rendered moot, it still would be dismissed for lack of jurisdiction

pursuant to RCFC 12(h)(3).

Admittedly, though, Mr. Gulley’s putative takings claim presents a closer call as

to whether Mr. Gulley’s Complaint should be dismissed on RCFC 12(b)(1) grounds or

pursuant to RCFC 12(b)(6) for the simple reason that this Court generally does possess

jurisdiction over takings claims pursuant to the Tucker Act. Thus, the Court considers

whether Mr. Gulley’s takings claim, should be dismissed, in the alternative, pursuant to

RCFC 12(b)(6). Carter v. Homeward Residential, Inc., 794 F.3d 806, 808 (7th Cir. 2015). In

that regard, even if this Court had jurisdiction to consider Mr. Gulley’s takings claim,

the government is correct that Mr. Gulley’s Complaint nevertheless must be dismissed

pursuant to RCFC 12(b)(6). Def. Mot. at 1.

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To state a takings claim upon which relief can be granted, a plaintiff “must

demonstrate . . . a property interest to assert and that the government physically or by

regulation infringed on that interest[.]” Craig Patty & Craig Thomas Expeditors, LLC v.

United States, 136 Fed. Cl. 211, 214 (2018). Once a plaintiff identifies a “legally

recognized property interest[,]” Freese v. United States, 221 Ct. Cl. 963, 964–65 (1979), a

plaintiff must also “identify an[] authorized government action that could have resulted

in a taking[.]” Topping, 2016 WL 3606059, at *7 (citing RCFC 12(b)(6)). As such, the facts

that Mr. Gulley presents in his Complaint, i.e., that Treasury improperly “took” portions

of his SSDI payments “do not give rise to a legal remedy.” Indian Harbor Ins. Co. v.

United States, 704 F.3d 949, 954 (Fed. Cir. 2013); see also Drury v. United States, 52 Fed. Cl.

402, 404 (2002) (“None of [plaintiff’s tort-based] allegations rise[] to the magnitude

necessary to support a takings claim.”). Accordingly, even if this Court possessed

jurisdiction over Mr. Gulley’s takings claim, and even had such claim not been rendered

moot, the government is correct that Mr. Gulley’s takings claim still must be, and

hereby is, DISMISSED pursuant to RCFC 12(b)(6).

F. Mr. Gulley’s Illegal Exaction Claim, If Any, Falls Outside Of This Court’s

Subject-Matter Jurisdiction Or, Alternatively, Fails To State A Claim Upon

Which Relief Can Be Granted As A Matter Of Law

The government, in its motion, generously reads Mr. Gulley’s takings claim as

being “better characterized as a claim of illegal exaction.” Def. Mot. at 13.

Nevertheless, the “[d]etermination of [this Court’s] jurisdiction starts with the

complaint, which must be well-pleaded in that it must state the necessary elements of

the plaintiff’s claim, independent of any defense that may be interposed.” Holley v.

United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). Thus, as explained supra, Mr. Gulley

cannot invoke this Court’s jurisdiction to adjudicate his grievances merely by invoking

Tucker Act language, such as “taking” or “illegal exaction.” In that regard, Mr. Gulley’s

generalized, conclusory allegations that the government acted in an improper manner

when garnishing his SSDI payments are insufficient, without more, to allege a claim for

an illegal exaction within this Court’s jurisdiction. Cf. Stephanatos v. United States, 306 F.

App’x 560, 564 (Fed. Cir. 2009) (noting that plaintiff’s references in a footnote to his

appellate brief to the terms “illegal exaction or wrongful exaction” were insufficient to

allow the Federal Circuit to consider such claims because he had failed to sufficiently

plead a claim for an illegal exaction in his original complaint (quotations omitted)).

Accordingly, and as explained infra, even if Mr. Gulley’s claims were not moot, the

Court would dismiss Mr. Gulley’s putative claim for an illegal exaction for lack of

jurisdiction. In light of the Federal Circuit’s recent decision in Boeing Co. v. United

States, 968 F.3d 1371 (Fed. Cir. 2020), however, the Court addresses at greater length the

government’s arguments regarding Mr. Gulley’s putative illegal exaction claim.

To allege an illegal exaction within this Court’s subject-matter jurisdiction, a

complaint must contain nonfrivolous factual allegations that the plaintiff is entitled to

recover money for the government’s purported illegal action. See Harris v. United States,

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2014 WL 10936253, at *1 (Fed. Cl. Apr. 16, 2014) (dismissing illegal exaction claim for

lack of subject-matter jurisdiction based on a finding that “there [was] no nonfrivolous

illegal exaction claim in this suit”); Reid v. United States, 2020 WL 2764753, at *19 (Fed.

Cl. May 8, 2020) (denying motion to dismiss illegal exaction claim based on alleged

illegal actions of the Federal Housing Finance Agency (“FHFA”), and finding that

plaintiffs’ allegations “that the FHFA is unconstitutionally structured” and that it

“violat[ed] . . . its own regulations” are “sufficient to establish . . . an illegal-exaction

claim”). Nevertheless, unlike a takings claim, where a plaintiff must concede the

validity or legality of an agency’s action, an illegal exaction claim typically is premised,

in contrast, upon “the absence of statutory authorization.” Aerolineas Argentinas v.

United States, 77 F.3d 1564, 1578-79 (Fed. Cir. 1996); see Reid, 2020 WL 2764753, at *19

(“When the government expropriates property, a plaintiff can obtain relief under either

a takings theory or an illegal-exaction theory, . . . but not both. . . . [A] takings claim

requires lawful conduct, while an illegal-exaction claim is premised on unauthorized

conduct.” (internal citations omitted)).

Notably, as the undersigned recently observed, an illegal exaction claim need not

be premised upon a money-mandating provision of law:

In Virgin Islands Port Auth. v. United States, Senior Judge

Bruggink described the “two classes of non-contractual

[Tucker Act] claims” and held that a “[p]laintiff need not

point to a money-mandating provision” to support the

existence of an illegal-exaction claim “because the necessary

remedy to the government improperly using its authority to

place a citizen’s money in its pocket is a return of that sum.”

136 Fed. Cl. 7, 13-14 (2018), aff’d, 922 F.3d 1328 (Fed. Cir. 2019);

see also 136 Fed. Cl. at 14 (“We see no further obligation under

. . . illegal exaction claims[] for a plaintiff to point to anything

in the statute or regulation on which the government relies

that anticipates an abuse of the statute and authorizes the

plaintiff to sue for return of the monies.”). That is, “[a]n

exaction claim provides an independent basis for jurisdiction

and is a type of claim that the Tucker Act and the Little Tucker

Act were designed to address.” Allegheny Techs. Inc. v. United

States, 144 Fed. Cl. 126, 136 (2019)[.]

Perry, 149 Fed. Cl. at 31. Accordingly, “a plaintiff need not identify a money-mandating

provision of law to invoke this Court’s jurisdiction for an illegal exaction claim.” Id. at

32. The Federal Circuit reached that same conclusion in Boeing, 968 F.3d at 1383-84, thus

“definitively resolv[ing] this issue,” consistent with this Court’s decision in Perry. 149

Fed. Cl. at 32.

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In Boeing, plaintiff, The Boeing Company, alleged that the government forced it

to pay $1,064,773 to cover various increased costs caused by changes “in direct violation

of 41 U.S.C. § 1503(b), which requires that the Government may not recover costs

greater than the aggregate increased cost to the Federal Government.” 968 F.3d at 1383

(citation and quotations omitted). In other words, “Boeing alleged that the government

[] demanded and [took] Boeing’s money in violation of a statute.” Id. Relying on

Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005), the trial court had held that

Boeing had to “show that 41 U.S.C. § 1503(b) is money-mandating to establish

jurisdiction for its illegal exaction claim.” Boeing Co. v. United States, 143 Fed. Cl. 298,

304 (2019) (holding that the Court of Federal Claims thus lacked jurisdiction over

Boeing’s illegal exaction claim), rev’d and remanded, 968 F.3d 1371 (Fed. Cir. 2020). The

Federal Circuit reversed, holding as follows:

The trial court read more into the Norman statement than is

proper given the otherwise-clear law, from Eastport S.S. [v.

United States, 178 Ct. Cl. 599, 605-06 (1967)] through Testan

through later cases of this court, applying the requirement of

a “money-mandating” statute only to claims for money

damages for government action different from recovery of

money paid over to the United States under an illegal

exaction.

Boeing, 968 F.3d at 1383. To resolve any remaining ambiguity in the law, the Federal

Circuit explained that “[w]e have, since Norman, assumed jurisdiction over statutory

illegal exaction claims with no regard for whether the statutes were ‘money-

mandating[]’ [and] we will not interpret Norman as having erased the distinction

between the two types of claims.” Id. at 1384. The fact that illegal exactions constitute a

distinct type of claim which may be brought against the government pursuant to the

Tucker Act is now the unambiguous law in this Court. See, e.g., Sanford Health Plan v.

United States, 969 F.3d 1370, 1378 n.3 (Fed. Cir. 2020) (citing Boeing and referring to “the

‘illegal exaction’ branch of Tucker Act jurisdiction”); see also Perry, 149 Fed. Cl. at 25-36.

Following Boeing, and in line with Perry, 149 Fed. Cl. at 31, the Court concludes that

Mr. Gulley was not required to identify a money-mandating source of law to support

his putative illegal exaction claim. The Court thus rejects the government’s argument to

the contrary. Def. Mot. at 13-14.

That said, for a plaintiff to plead an illegal exaction within this Court’s subject-

matter jurisdiction, a complaint must allege nonfrivolous facts demonstrating that the

plaintiff is entitled to recover money for the government’s purported illegal action.

Harris, 2014 WL 10936253, at *1 (dismissing illegal exaction claim for lack of subject-

matter jurisdiction based on a finding that “there [was] no nonfrivolous illegal exaction

claim in this suit”). This means that although this Court may exercise jurisdiction over

a putative illegal exaction claim “with no regard for whether the [asserted] statutes [are]

‘money-mandating[,]’” Boeing, 968 F.3d at 1383, a plaintiff must still allege sufficient

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facts to demonstrate that “money was taken by the government and [that] the exaction

violated a provision of the Constitution, a statute, or a regulation[.]” Piszel v. United

States, 121 Fed. Cl. 793, 801 (2015), aff’d, 833 F.3d 1366 (Fed. Cir. 2016). In other words, a

plaintiff must “make a non-frivolous allegation that the government, in obtaining the

money, has violated the Constitution, a statute, or a regulation.” Boeing, 968 F.3d at

1383 (emphasis added).

By way of illustration, the Federal Circuit’s decision in Aerolineas Argentinas

shows what kinds of facts are typically needed to plead an illegal exaction claim within

this Court’s subject-matter jurisdiction. 77 F.3d at 1578. There, the Federal Circuit held

that the Court of Federal Claims incorrectly dismissed plaintiff’s illegal exaction claim.

Id. Specifically, the Federal Circuit highlighted the manner in which the airline’s

complaint detailed particular factual assertions that were sufficient to support an illegal

exaction claim within this Court’s Tucker Act jurisdiction. Id. (“The Service improperly

required the airlines to take custody, pending processing and decision of asylum

petitions, of aliens who were in ‘stowaway’ status because they destroyed or concealed

their travel documents.”). The Federal Circuit further stressed that the airline’s

complaint relied upon specific sources of law in support of its illegal exaction claim. 77

F.3d at 1578 (highlighting that plaintiff specifically claimed that the government

“misappli[ed] [] 8 C.F.R. § 235.3(d) to impose on the airlines the cost of long-term

detention of excludable aliens, after repeal of [the Immigration and Nationality Act]

§ 233”).

On the other hand, if a plaintiff does not even allege facts that could potentially

support an illegal exaction claim within this Court’s jurisdiction (i.e., if a plaintiff does

not even point to an alleged statute that was violated, or to money that was taken), this

Court lacks jurisdiction to consider such a claim at all. Harris 2014 WL 10936253, at *1

n.4 (“Notwithstanding plaintiff’s ambiguous statements regarding the presence of an

illegal exaction claim in the complaint, the court must agree with defendant that there is

no nonfrivolous illegal exaction claim in this suit.”).

Mr. Gulley’s Complaint appears to be far more analogous to the “ambiguous”

complaint which this Court held falls outside of our subject-matter jurisdiction, Harris

2014 WL 10936253, at *1 n.4, rather than the claim at issue in Aerolineas Argentinas which

was comprised of particularized factual allegations. While Mr. Gulley’s Complaint

likely fails to allege sufficient facts to plead an illegal exaction within this Court’s

subject-matter jurisdiction, the preferred approach, as explained supra, is to dismiss the

claim on the merits pursuant to RCFC 12(b)(6). See Carter, 794 F.3d at 807; see also

Fireman v. United States, 44 Fed. Cl. 528, 535 (1999) (“[This] Court should hesitate before

- 17 -

ruling that it lacks subject matter jurisdiction over a claim of illegal exaction”).4 Thus,

the government is correct that “even if the Court views Mr. Gulley’s insufficiently

alleged takings claim to be one of illegal exaction, such a claim should be dismissed for

failure to state a claim[] [pursuant to] RCFC 12(b)(6).” Def. Mot. at 14.

To assert a valid illegal exaction claim that will survive a motion to dismiss

pursuant to RCFC 12(b)(6), a plaintiff’s complaint “must show that: (1) money was

taken by the government and (2) the exaction violated a provision of the Constitution, a

statute, or a regulation.” Piszel 121 Fed. Cl. at 801; see Aerolineas Argentinas, 77 F.3d at

1572 (emphasizing that for a plaintiff to properly plead an illegal exaction claim the

plaintiff must seek “recovery of monies that the government has required to be paid

contrary to law.”(emphasis added)); Casa de Cambio Comdiv S.A., de C.V., 291 F.3d at 1363

(“An illegal exaction . . . exists only if money has been ‘improperly exacted or retained’

by the government” (quoting Testan, 424 U.S. at 401)). Mr. Gulley’s putative illegal

exaction claim does not meet this two-part illegal exaction pleading standard.

Indeed, in this case, the government retained Mr. Gulley’s funds – thus satisfying

the first prong of a proper illegal exaction claim. But, as noted supra, Mr. Gulley does

not identify in his Complaint a particular statute or other facts which demonstrate that

the government held his money contrary to law. Thus, Mr. Gulley has failed to plead an

illegal exaction claim supported by the requisite factual allegations. The mere fact that

Mr. Gulley generally alleges that the government improperly retained his SSDI

payments does not suffice for the purposes of surviving the government’s RCFC

12(b)(6) motion to dismiss. See Perry, 149 Fed. Cl. at 34 (citing Virgin Islands Port Auth.

922 F.3d at 1337, for the proposition that “a plaintiff cannot allege merely that he or she

paid money to the government; rather, a plaintiff also must assert sufficient facts to

demonstrate that such payment was made pursuant to a requirement that is contrary to

law[.]” (quotations omitted)).

Accordingly, even if the Court possessed jurisdiction over Mr. Gulley’s illegal

exaction claim, he has failed to state such a claim as required by RCFC 12(b)(6), thus

warranting dismissal of that claim on the merits.5

4

See, e.g., Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (noting that “as a general rule

. . . when . . . [a] party is appearing pro se” courts should reach the merits); cf. Armstrong v. Office

of Pers. Mgmt., 314 F. App’x 269, 271 (Fed. Cir. 2008) (noting that the court will “construe [pro se

plaintiff’s] pleadings liberally . . . [to] reach the merits of her case[]”).

5 As noted, Mr. Gulley is a pro se litigant, and thus, as noted supra, his Complaint is entitled to a

liberal construction. Nevertheless, even after multiple careful reviews of his Complaint, the

Court cannot identify specific factual allegations supporting his illegal exaction claim. To the

extent that any such facts are present in the Complaint, the Court emphasizes that, despite

Mr. Gulley’s pro se status, his “[a]rguments . . . are not fleshed out” and thus “are not

preserved.” Stephanatos, 306 F. App’x at 564.

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CONCLUSION

For the foregoing reasons, the government’s motion to dismiss hereby is

GRANTED and Mr. Gulley’s Complaint is DISMISSED pursuant to RCFC 12(b)(1) or,

in the alternative, pursuant to RCFC 12(b)(6). No costs. The Clerk is directed to enter

judgment accordingly.

It is so ORDERED.

Matthew H. Solomson

Matthew H. Solomson

Judge

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