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In the United States Court of Federal Claims

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(Fii@d; Juiy 16, 2014)

FREDERICK BROWN, JUL 1 6 2014

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THE UNITED STATES,

Defendant.

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ORDER

Plaintiff, appearing pro se, alleges that the government wrongfully
confiscated his disability benefits Defendant has moved to dismiss, arguing
that the court lacks subject matter jurisdiction Also pending are plaintiffs
motion to transfer and motion for leave to amend the complaint. For the
reasons set forth below, we grant defendant’s motion to dismiss and deny
plaintiff s motion to transfer and motion for leave to amend the complaint.‘

I. Background

On February 27, 2012, plaintiff submitted a claim to the Social Security
Administration ("SSA") for the payment of benefits withheld since 2001
pursuant to a garnishment. He alleged that the garnishment was improper
because the garnishment order did not contain his correct Social Security
Number.

On February ll, 2014, plaintiff filed his complaint here for the alleged
theft of his Social Security disability benefits. Plaintiff alleges that agents and

‘ Defendant also attempted to file an untimely motion for an extension of time
within which to file its reply in support of its motion to dismiss. We allow that
motion to be filed and deny it as moot.

employees of the federal government committed negligent and wrongful acts
and omissions in violation of the Federal Torts Claims Act ("FTCA"), 28
U.S.C. § l346(b) (2012). Plaintiff also alleges violations of his civil rights
under the First, Fourth, Fifth, and Fourteenth Amendments.

On April 4, 2014, before defendant responded to the complaint, plaintiff
filed a motion to transfer, requesting that the court determine whether to
transfer his case to district court. The motion states that, if the court decides
not to hear the case because it “may or may not have a tort component," then
the case should be transferred to district court pursuant to 28 U.S.C. § 1631
(2012).

Def`endant opposes the motion to transfer on the grounds that the
district court would not have jurisdiction, as required by 28 U.S.C. § 1631,
arguing that the true nature of plaintiffs claim is a challenge to the SSA’s
garnishment actions. Thus, in defendant’ s view, the district court does not have
jurisdiction under the FTCA because a challenge to the SSA’s garnishment
actions is not a tort claim. Defendant also argues that plaintiff could not
challenge the SSA’s garnishment action because 42 U.S.C. § 405(h) (20l2)
provides that "[t]he findings and decision of the Commissioner of Social
Security after a hearing shall be binding." On May 2l, 2014, defendant filed
a motion to dismiss pursuant to Rule l2(b)(l), focusing on plaintiff’s FTCA
claims and arguing that the court lacks subject-matter jurisdiction over tort
claims.

In a filing he styles "Plaintiff’s Response to Defendant’s Response to
Plaintiff`s Motion to Transf`er," plaintiff now concedes that the district court
would not have jurisdiction in this case, but this court does because he had an
implied contract with the government that was breached when he no longer
received social security benefits. He also argues that his Fifth Amendment
rights were violated when the government took his right to receive social
security benefits.

On June 6, 2014, plaintiff filed a motion to amend his complaint,
adding a conspiracy claim and clarifying that he was "not filing a tort claim."
Plaintiff filed a subsequent memo in which he claimed that he had an implied
contract with the government that was breached. Plaintiff argues in that
document for the first time that an independent right to money damages arose
when he was prevented from traveling to l\/lexico because the State
Department refused to re-issue his passport on the allegedly false grounds that
plaintiff owed child support.

On June l6, 2014, plaintiff responded to defendant’ s motion to dismiss,
explaining that the implied contract referred to in his motion to amend
originates through his participation in the SSA’s Ticket to Work program. In
addition, he claims the taking of his disability benefits constituted a violation
of the Takings Clause of the Fifth Amendment.z

In his final filing, "Plaintiff`s Memorandum In Support of The
Supplement to Plaintiff’s Response to Defendant’s Motion to Dismiss,"
plaintiff argues that the govemment took his money in violation of his due
process rights under the Fifth Amendment. He also argues again that his
participation in the Ticket to Work program created a contract with the
government.

II. Jurisdicti0n

Jurisdiction is a threshold matter. See Steel C0. v. Citizerzsfor a Betz‘er
Env ’t, 523 U.S. 83, 94-95 (1998). The court may raise the issue sua sponte at
any time. Fola’en v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). The
plaintiff has the burden of establishing jurisdiction. Wagstayj”v. United Staz‘es,
105 Fed. Cl. 99, 108 (20 l2). Although plaintiff is appearing pro se, and pro se
litigants are afforded latitude, that cannot excuse jurisdictional failings. See
Kelly v. US. Sec ’y ofDep ’t ofLabor, 8 l 2 F.2d 1378, l3 80 (Fed. Cir. l987) ("a
court may not similarly take a liberal view of that jurisdictional requirement
and set a different rule for pro se litigants only").

The Tucker Act, 28 U.S.C. § l49 l , is the principal statute goveming the
jurisdiction of the Court of Federal Claims. Under the Tucker Act, this court
has jurisdiction primarily over claims "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. § l49l(a) (20 l2). A plaintiff must either claim a breach of contract
by the United States or identify a constitutional provision, statute, or regulation
which mandates that plaintiff be paid money by the federal govemment. See
United States v. Testan, 424 U.S. 392, 398 (l976). Tucker Act jurisdiction is
preempted, however, where Congress "has enacted a precisely drawn,

2 Defendant has not yet replied to plaintiffs response. We need not wait for
defendant file its reply because it is clear that we lack jurisdiction over
plaintiff’ s complaint.

comprehensive and detailed scheme of review in another forum." St. Vincem‘ ’s
Medz`cal Center v. United Sz‘ates, 32 F.3d 548, 550 (Fed. Cir. 1994). In
deciding a motion to dismiss under Rule l2(b)(l) of the Rules of the United
States Court of F ederal Claims ("RCFC"), the court must assume that all
factual allegations in the complaint are true and draw all reasonable inferences

in plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. l995).
The court does not have jurisdiction over any of plaintiffs claims.

A. Tort Claims

As to plaintiffs tort allegations under the FTCA, this court does not
have jurisdiction over cases sounding in tort. 28 U.S.C. § 1491 (excluding
cases "sounding in tort"); Gable v. UnitedStates, 106 Fed. Cl. 294, 297 (2012)
("The United States Court of Federal Claims does not have jurisdiction to
adjudicate tort claims.").3 The FTCA grants exclusive jurisdiction to the
district courts to hear claims arising under it. 28 U.S.C. § l346(b)(l).
Plaintiff’s tort claims must be dismissed for lack of jurisdiction.

B. Constitutional and Civil Rights Claims

Plaintiff s allegations of civil rights violations, including his Fifth
Amendment due process rights, also belong in the district courts. See Wz`ll is v.
United States, 96 Fed. Cl. 467, 470 (2011) ("It is well settled that jurisdiction
for civil rights claims . . . lies exclusively in the district courts."). To the extent
that plaintiff cites the Constitution as a source of jurisdiction, he must allege
a violation of a provision that is money-mandating Hernandez v, United
States, 93 Fed. Cl. 193, 197-99 (2010). Plaintiff identifies the First, Fourth,
and Fourteenth Amendments but does not discuss how they apply to his
allegations. ln any event, the First Amendment does not mandate the payment
of money and is therefore not a basis for jurisdiction in this court. United
States v. Connolly, 716 F.Zd 882, 887 (Fed. Cir. 1983). Nor does the Fourth
Amendment mandate a payment of money by the United States. Fry v. United

3 Plaintiff also alleges a conspiracy by SSA employees and departments of the
federal government to harm him. Claims resting on the acts of individual
employees or agents of the United States fall outside of the court’s jurisdiction
because "the only proper defendant for any matter before this court is the
United States, not its officers, nor any other individual." Stephenson v. United
States, 58 Fed. Cl. 186, 190 (2003).

States, 72 Fed. Cl. 500, 507 (2006) ("As a matter of law, the Fourth
Amendment’s prohibition on unreasonable search and seizure . . . [is] not
money-mandating."). The Fourteenth Amendment applies only to states and

cannot support a claim against the federal government. L0we v. United States,
79 Fed. Cl. 218, 231 n.ll (2007).

C. Implied-in-Fact Contract

Plaintiff alleges that his participation in the SSA’s Ticket to Work
program created an implied contract with the government that was breached
when the SSA garnished his disability benefits and thus did not allow him to
participate in the Ticket to Work program. He correctly notes that the court’s

Tucker Act jurisdiction includes claims based on an implied-in-fact contract
with the government. See Unz'tea’States v. Mitchell, 463 U.S. 206, 215 (1983)
(citing 28 U.S.C. § 1491).

individuals entitled to social security disability benefits can choose to
participate in the Ticket to Work program to receive help finding and retaining
employment. See 20 C.F.R. § 41l.105 (2014) (stating the purpose of the
Ticket to Work program). An individual in the Ticket to Work program
receives a ticket from the SSA to then give to an employment network or state
vocational rehabilitation agency. 20 C.F.R. § 411.120. The SSA then agrees
to pay an employment network or state vocational rehabilitation agency to
which the individual’s ticket is assigned to help the individual obtain
employment. Id. An individual’s ticket is terminated when he or she is no
longer eligible to participate in the Ticket to Work program, which occurs
when the individual is no longer eligible for disability benefits. 20 C.F.R. §
41 1 . 155.

P1aintiff has not, nor could he, allege a contractual relationship with the
United States for his social security benefits. The relationship between Mr.
Brown and the United States in this regard is statutory in nature, controlled by
the Social Security Act. Pursuant to that statutory framework, he has been
previously considered eligible for certain disability benefits. As we explain
below, vindication of those rights is provided for by statute in the district court.
Cf Jackson v. United States, 80 Fed. Cl. 560, 567 (2008) (holding that
plaintiff s claim for veterans benefits was not a contractual claim and belonged
under the comprehensive administrative scheme provided for in other forums).

D. Social Security Claims

The Social Security Act provides for review in district courts to
challenges of a final decision by the Commissioner of the SSA. 42 U.S.C. §
405(g) (2()12); Aa’a'ams-More v. Urziz‘ed States, 81 Fed. Cl. 312, 315 (20()8)
("The Court of Federal Claims does not have jurisdiction over claims arising
from the Social Security Act."). This court therefore does not have jurisdiction
over plaintiffs claims regarding the Ticl<et to Work program or any other
social security benefits allegedly denied plaintiff. Furthermore, we do not have
jurisdiction over plaintiffs claims for compensation under the Fifth
Amendment for the taking of his social security disability benefits. See
Marcus v. Um`tedStates, 909 F.2d 147(), 1471 (Fed. Cir. 1990) ("We hold that
the Claims Court has no jurisdiction under the Tucker Act . . . over claims to
social security benefits, even considering appellant’s assertions that he is
entitled to relief under the Constitution.") (citing Weinberger v. Salfi, 422 U.S.
749, 756-67 (1982)). To the extent that plaintiff seeks review of child support
orders, we note that such claims belong in state court.‘l

E. Other Claims

Plaintiff correctly notes that the Tucker Act is only a jurisdictional
statute and that there must be an independent source of substantive law which
creates a right to money damages. Fisher v. United States, 402 F._°>d 1167,
1172 (Fed. Cir. 2005). Plaintiff argues that an independent right to money
damages was created when he could not travel to his company in Mexico
because the State Department refused to re-issue his passport on the allegedly
false grounds that plaintiff owed child support. The right to money damages
must come from a breach of contract or a statute, regulation, or constitutional
provision that can fairly be interpreted as mandating compensation by the
Federal Government." Mitchell, 463 U.S. at 216-17; Testan, 424 U.S. at 400.
Plaintiff did not have a contract with the government to give him a passport
and has not identified a substantive related right mandating compensation.
Therefore, the court does not have jurisdiction over plaintiff s claims regarding
the State Department’s interference with his travel to Mexico. The State
Department’s reluctance to issue plaintiff a passport does not give rise to a

"Under limited circumstances not applicable here, such questions can be heard
in district court if certified by the Secretary of Health and Human Services. See
42 U.S.C. § 660 (2()14).

claim cognizable under the Tucker Act.$

III. Amendment

Rule l5(a) of the Rules of the United States Court of Federal Claims
allows a party to amend a

pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has not been
placed upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise a party may
amend the party’s pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given
when justice so requires.

RCFC l5(a). "The decision to grant or deny an amendment lies within the
reasonable discretion of the trial court." Emerald Coast Fz`nest Proa’uce Co. v
Um`z‘ed States, 76 Fed. Cl. 445, 450 (2007). A motion to amend may be denied
for "undue delay, bad faith, or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962)
(emphasis added). Plaintiff is too late for amendment as a matter of course,
and it would be futile to allow him to amend now because the court does not
have jurisdiction over any of the allegations raised in the proposed amendment.
Therefore, plaintiffs motion to amend is denied.

IV. Transfer

To transfer a case, the transferor court must lack jurisdiction, the
transfer must be in the interest of justice, and the transferee court must be one
in which the action could have been brought at the time the claim was filed. 28
U.S.C. § l63l; see Rodriguez v. Um`ted Staz‘es, 862 F.Zd 1558, 1559-60 (Fed.
Cir. 1988). The decision to transfer rests within the sound discretion of the

transferor court. Siegel v. Um'tea’ States, 38 Fed. Cl. 386, 390 (1997). While
we clearly lack jurisdiction, it is far from clear that the district court has

5To the extent that any of plaintiff’ s numerous allegations are not addressed
specifically in this order, we are satisfied that they do not fall within this
court’s jurisdiction.

jurisdiction. Jurisdiction under the FTCA is contingent on a timely filing after
denial of an administrative claim. See 28 U.S.C. § 2401(b) (2012) ("A tort
claim against the United States shall be forever barred unless it is presented in
writing to the appropriate federal agency within two years after such claim
accrues or unless action is begun within six months after the date of mailing
. . . of notice of final denial of the claim by the agency to which it was
presented"); In Re Franklz`n's Sav. Corp., 385 F.3d 1279, 1287 (l()th Cir.
2004) ("[T]he district court lacks subject matter jurisdiction to proceed under
the FTCA if a plaintiff fails to satisfy the FTCA’s timing requirements set
forth in § 240l(b)."). It is not clear from plaintiffs complaint whether
plaintiff timely raised his tort claims to the Social Security Administration and
it appears likely that an appeal to district court at this time would be untimely.

A similar problem arises with regard to plaintiffs social security
claims. Those claims must first be made administratively to the agency and
then later appealed to the district courts. See 42 U.S.C. § 4()5(g) (2()12).
Although it appears that plaintiff raised at least some claims to the SSA, it is
not clear whether plaintiff would fall within the window of time for appealing
to the district court. Ia’. ("Any individual, after any final decision by the
Commission of Social Security made after a hearing . . . may obtain a review
of such decision by a civil action commenced within sixty days after mailing
to him of notice of such decision . . . .").

The facts are unclear as to whether plaintiff has exhausted his
administrative relief procedures or if his claims would be considered timely in
the district court. We therefore conclude that it would not be in the interest of
justice to transfer plaintiff s case to the district court.

V. Conclusion
This court lacks jurisdiction over any of plaintiff s claims. Accordingly,
the case must be dismissed for lack of jurisdicti0n. Plaintiff s motions to

amend and transfer are denied. Defendant’s motion to dismiss is granted. The
Clerk of Court is directed to dismiss the complaint without prej udice. No costs.

ERIC G. BRUGGINK -

Judge

