                    NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                      2006-5071

                            JAMES ALFRED MILLER, JR.,

                                                      Plaintiff-Appellant,

                                           v.

                                  UNITED STATES,

                                                      Defendant-Appellee.

                           ___________________________

                             DECIDED: October 3, 2006
                           ___________________________




Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.

PER CURIAM.

      Plaintiff-Appellant James Miller (“Mr. Miller”) seeks review of a decision by the

United States Court of Federal Claims (“Court of Federal Claims” or the “trial court”)

denying Mr. Miller’s claim for costs associated with this case. Both parties agree that

the Court of Federal Claims lacked subject matter jurisdiction in this case and that the

complaint was properly dismissed. On appeal, Mr. Miller seeks recovery of his filing
fees and related equitable relief. We have considered Mr. Miller’s claims and find them

without merit. We therefore affirm the judgment of the trial court.

                                     BACKGROUND

       Mr. Miller is a former federal employee receiving Civil Service Retirement annuity

benefits from the Government.         On August 10, 2005, the Office of Personnel

Management (“OPM”) notified Mr. Miller that his annuity was reduced from $362 per

month to $353 per month because he had performed federal service prior to October 1,

1982, for which no retirement deductions had been made.               The OPM, however,

provided that Mr. Miller could return his annuity payments to the $362 per month rate if

he remitted to the OPM a deposit of $1,159.           This sum represented the missed

deductions plus interest on those deductions to the date of retirement.

       Mr. Miller sent the OPM a check for $1,167 and a letter stating that the deposit

was made “Under Protest”. Specifically, Mr. Miller objected to paying interest on the

missed deductions. In the letter, on behalf of “all Others Similarly Situated”, Mr. Miller

asked the OPM to “specify the next step in Exhaustion of Administrative Remedies; and

the time requirements appertaining, there to.”

       Upon receiving the check, the OPM restored Mr. Miller’s annuity payment to

$362 per month, with a one-time adjustment payment of $34.50. The OPM also sent Mr.

Miller a letter noting the restored rate. This letter, however, did not specify a “next step”

as Mr. Miller had requested.

       On November 21, 2005, Mr. Miller filed a complaint in the Court of Federal

Claims, seeking recovery or adjustment of the interest paid. Mr. Miller did not seek




2006-5071                                    2
costs, filing fees, or related relief in his complaint. The OPM suspended consideration

of Mr. Miller’s protest pending the outcome of this case.

       The Government filed a motion to dismiss for lack of subject matter jurisdiction,

arguing that Mr. Miller’s claim should have been raised before the OPM and Merit

Systems Protection Board (“MSPB”) rather than in the Court of Federal Claims. See

5 U.S.C. § 8347(b), (d)(1). In response to the motion to dismiss, Mr. Miller demanded

recovery of his filing fees “for future use in the specified United States Court of Appeals

for the Federal Circuit.” Mr. Miller also asked the trial court to order OPM to provide him

with information on the next step in the appeals process.

       The Court of Federal Claims dismissed Mr. Miller’s complaint and denied his

demand for costs. Miller v. United States, No. 05-1220C (Ct. Fed. Cl. Mar. 21, 2006).

The trial court also advised Mr. Miller of the proper procedure:

       The Civil Service Reform Act requires individuals wishing to dispute their
       civil service retirement benefits to seek relief from the OPM. If the
       individual is dissatisfied with the OPM’s decision, the individual may
       appeal to the Merit Systems Protection Board (‘MSPB’). The MSPB’s
       decision may then be appealed to the United States Court of Appeals for
       the Federal Circuit.

Id. (citations omitted).

       On appeal, Mr. Miller does not challenge the trial court’s determination that it

lacked jurisdiction to hear his complaint. Rather, Mr. Miller argues that, by failing to

provide “the next step in Exhaustion of Administrative Remedies,” the OPM caused him

to file in the wrong forum and therefore should pay his filing fees.       Mr. Miller also

repeats his demand that the OPM be ordered to provide him with information on the

next step in the appeals process.




2006-5071                                   3
                                       DISCUSSION

                                          A. Costs

       This court reviews the denial of costs under an abuse of discretion standard.

See Neal & Co. v. United States, 121 F.3d 683, 684 (Fed. Cir. 1997). “Such abuses

must be unusual and exceptional,” and this court will not simply substitute its judgment

for that of the trial court. Id. (quoting PPG Indus., Inc. v. Celanese Polymer Specialties

Co., 840 F.2d 1565, 1572 (Fed. Cir. 1988) (Bissell, J., additional views)). Furthermore,

unless a court possesses jurisdiction to hear the underlying action, that court cannot

award costs to the plaintiff. See Burkhardt v. Gober, 232 F.3d 1363, 1368 (Fed. Cir.

2000) (requiring court to have jurisdiction in order to award costs under the Equal

Access to Justice Act).

       Mr. Miller argues that the trial court failed to specifically respond to his demand

for costs. The trial court held and both parties agree, however, that the Court of Federal

Claims lacked subject matter jurisdiction in this case. See generally 5 U.S.C. § 8347(b),

(d)(1); Contreras v. United States, 64 Fed. Cl. 583, 587 (Ct. Fed. Cl. 2005) (holding that

where a federal employee has an appeal to the MSPB, his cause of action is not

cognizable in the Court of Federal Claims). The trial court further held that “[n]o costs

shall be awarded.” Miller, No. 05-1220C (Ct. Fed. Cl. Mar. 21, 2006). The trial court

thereby addressed Mr. Miller’s demand.        Without jurisdiction to hear the underlying

complaint, the trial court could not award costs to Mr. Miller.

       Additionally, under the Rules of the Court of Federal Claims (“RCFC”) and the

Equal Access to Justice Act, a party must demonstrate that it was the “prevailing party”

to recover costs from the United States. See 28 U.S.C. § 2412(a)(1) (2006) (“[Costs]




2006-5071                                    4
may be awarded to the prevailing party in any civil action brought by or against the

United States . . . in any court having jurisdiction of such action.”) (emphases added);

RCFC 54(d)(1) (“Costs . . . may be awarded to the prevailing party.”) (emphasis added).

Because Mr. Miller’s complaint was dismissed without any favorable rulings, Mr. Miller is

not a “prevailing party.” Mr. Miller cites no law to support the proposition that a plaintiff

in his position, having filed a premature complaint in an incorrect forum, should be

entitled to recover costs from the defendant upon dismissal of the complaint.

       Mr. Miller’s argument that the OPM caused him to file in the wrong forum is

without merit. The OPM never suggested that Mr. Miller should file suit in the Court of

Federal Claims. The OPM likewise never suggested that Mr. Miller’s right to appeal

would soon expire. The decision to immediately file suit in the Court of Federal Claims

was entirely Mr. Miller’s own initiative. Notably, a union benefits specialist twice advised

him of the correct procedure. Mr. Miller ignored this advice and acted, without further

counsel, based on his own misinterpretation of the law.

       Accordingly, the OPM is not responsible for Mr. Miller’s action. Given that both

parties agree that the Court of Federal Claims lacked jurisdiction in this matter, the

denial of costs was not an abuse of discretion.

                                      B. Other Relief

       Mr. Miller also repeats his demand that the OPM be ordered to provide him with

information on the next step in the appeals process and that it do so in response to all

future requests from any person.

       Both parties agree, however, that the trial court lacked jurisdiction in this case.

Accordingly, the trial court could not extend equitable or other relief to Mr. Miller. See,




2006-5071                                    5
e.g., UNR Indus. Inc. v. United States, 962 F.2d 1013 (Fed. Cir. 1992). Moreover, the

Court of Federal Claims generally does not possess jurisdiction over claims for

declaratory relief. See First Hartford Corp. v. United States, 194 F.3d 1279, 1294 (Fed.

Cir. 1999). With limited exceptions, there is no provision in the Tucker Act authorizing

the Court of Federal Claims to order equitable relief. See United States v. King, 395

U.S. 1, 4 (1969). But see 28 U.S.C. § 1491(b)(2) (permitting the Court of Federal

Claims to grant declaratory and injunctive relief in actions regarding government

solicitations).

       Therefore, the denial by the Court of Federal Claims of Mr. Miller’s additional

equitable relief was correct.

                                      CONCLUSION

       Because the Court of Federal Claims properly denied Mr. Miller’s demand for

costs and other equitable relief, we affirm.

       No costs.




2006-5071                                      6
