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                                                                                                           No. 15-226
                                                                                                                                                      FILED
                                                                                                       Filed: July 6, 2015
                                                                                                      TO BE PUBLISHED                                JUL _ 6   2015

                                                                                                                                                  U.S. COURT OF
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ROGERHAYNES,                                                 I[,                                                                Jurisdiction;
                                                                                                                                Motion To Dismiss,
                   Plaintiff, pro se,                                                                                              RCFC 12(bX1);
                                                                                                                                Pro se.


THE UNITED STATES,

                   Defendant.


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Roger Haynes,                                    III, Wichita, Kansas, pro                                         se.


Alexander V. Sverdlov, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.


                                                              MEMORANDUM OPINION AND FINAL ORDER

I.                 RELEVANTFACTUALBACKGROUND.'

       From October 1972 to September 1987, as well as in July 1988, Roger Haynes III
("Plaintiff') worked in the railroad industry. Gov't App'x A, at 2. On an unspecified date, Plaintiff
was found "totally and permanently disabled." Gov't App'x A, at 2. On March 1, 1990, Plaintiff
began receiving aa annuity, as calculated under the rules of the Railroad Retirement Act. Compl.
at PDF 4-5; see also Railroad Retirement Act of 1974,45 U.S.C. $ 231 etseq. ("RRA')

       On September 6,2013, the Railroad Retirement Board ("RRB") reissued Plaintiff s
annuity, effective August l, 2013, in the amount of $2,119.90 per month. Gov't App'x B, at 2.


                    I
        The relevant facts were derived from Plaintiff s March 3, 2015 Complaint and the
unnumbered Exhibits attached thereto ("Compl.") and the Appendix to the Government's May 4,
2015 Motion To Dismiss ("Gov't App'x A-B").
The RRB's decision included a statement stating that any appeal must be filed "WITHIN 60
DAYS," if Plaintiff wanted reconsideration. Gov't App'x B, at 2.

        On December 17, 2013-102 days later-Plaintiff appealed the RRB's initial decision
regarding the amount of his annuity. Gov't App'x B, at 2. On January 3,2014,the RRB directed
Plaintiffto show "good cause for his untimely request." Gov't App'xB, at2. In response, Plaintiff
contended that his appeal should be considered, because he "did not see the appeal rights on the
back of the agency's letter." Gov't App'x A, at 3 (internal quotations omitted). On January 31,
2014, the RRB notified Plaintiffthat, since he did not request an appeal within the sixty day period
or showing "good reason for the delay," it would not review the initial decision. Gov't App'x B,
at 3.

        On February 3,2014, Plaintiff filed a petition for appeal with the United States Merit
Systems Protection Board ("MSPB"), Denver Field O{fice, to challenge the RRB's initial decision
and request reconsideration. Gov't App'x B, at 1. On March 7, 2015, the MSPB dismissed the
appeal for lack ofjurisdiction. Gov't App'x B, at l.

        On an unspecified date, Plaintiffpetitioned for reconsideration and on October 8, 2014,the
MSPB denied Plaintiff s petition for review and affirmed the RRB's initial decision. Gov't App'x
A, at   11. The MSPB concluded that it did not have authority to review retirement benefits
decisions made by the RRB. Gov't App'x A, at 3. The MSPB concluded that the United States
Court of Appeals for the Federal Circuit has sole jurisdiction to review any final actions of the
RRB. Gov't App'x A, at 4 (citing 5 U.S.C. $ 7703(bX1XA).             '?




II.     PROCEDURALHISTORY.

        On March 3,2015, Plaintiff filed a Complaint in the United States Court of Federal Claims.

        On March     17 .2015. Plaintiff filed   a   Motion To Proceed In Forma Pauperrs that the court
granted on    April 7,2015.

        On May, 4,2015, the Government filed a Motion To Dismiss ("Gov't Mot."), pursuant to
Rule 12(bX1) of the United States Court of Federal Claims (.'RCFC). OnMay20,20l5, Plaintiff
filed a Response ("P1. Resp."). On June 8, 2015, the Govemment filed a Reply ("Gov't Reply").




        '   Section 7703, in relevant part, provides:

        [A] petition to review a final order or final decision of the Board shall be filed in
        the United States Court of Appeals for the Federal Circuit. Notwithstanding any
        other provision of law, any petition for review shall be filed within 60 days after
        the Board issues notice ofthe final order or decision ofthe Board.

5 U.S.C. $    7703(bXrXA).
ilL      DISCUSSION.

         A.     Jurisdiction.

         The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.
$   1491, "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. $ la9l(a)(1). The Tucker Act, however, is "a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages . . .  .  [T]he Act merely confers jurisdiction upon [the United States Court of Federal
Claimsl whenever the substantive right exists." UnitedStates v. Teslan,424U.5.392,398 (1976).

        To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, Constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
identifu a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisher v. United States, 402 F .3d 1167, 1172 (Fed. Cir. 2005) (en banc) (The
TuckerAct... does not create a substantive cause ofaction; ... a plaintiff must identify a separate
                                                                           .
 source of substantive law that creates the right to money damages. . . [T]hat source must be
 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
 law that he relies upon "can fairly be interpreted as mandating compensation by the Federal
 Govemment[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
 846F.2d746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
 in question . . . . [the plaintiffl bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.").

         B.        Standard Of Review For Pro   ^Se
                                                      Litigants,

        Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States,4l2F.2d 1285,
 1292 (Cr. Cl. 1969). Nevertheless, while the court may excuse ambiguities rn a pro se plaintiff s
complaint, the court "does not excuse [a complaint's] failures." Henke v. United States,60F.3d
795,799 (Fed. Cir. 1995).

         C.        Standards For Motion To Dismiss Pursuant RCFC 12(bxl).

         A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas ofsubstantive law . . . . is properly raised by a [Rule] l2(bX1) motion[.]" Palmer v.
united States,l68 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(bX1) ("Every defense to
a claim for reliefin any pleading must be asserted in the responsive pleading . . . . But a party may
assert the following defenses by motion: (1) lack ofjurisdiction over the subject matter[.]"). When
considering whether to dismiss an action for lack of subject matter jurisdiction, the court is
"obligated to assume all factual allegations of the complaint to be true and to draw all reasonable
inferences in plaintiff s favor." Henke,60F.3dat797.

       D.      The Government's May 4, 2015 Motion To Dismiss.

               1.      The Government's Argument.

        The Govemment argues that the court does not have jurisdiction over the March 30, 2015
Complaint. Gov't Mot. at3; see also Gov't Reply at 1. According to 5 U.S.C. $ 7703, MSPB
decisions may be appealed only at the United States Court of Appeals for the Federal Circuit.
Gov't Mot. at   3.  As such, the court does not have subject matter jurisdiction to adjudicate
Plaintiff s March 3, 2015 Complaint. Gov't Mot. at 3.

        Evenif, arguendo, the court had jurisdiction over this matter, Plaintiffs attempt to review
the MSPB's October 8,2014 decision is outside the statutory appeal period. Gov't Mot. at 4.
Because a challenge to the MSPB's October 8, 2014 decision must have been filed within sixty
days-by December 2014-the March 3,2015 Complaint is untimely. Gov'tMot.at4. Therefore,
even if the court had jurisdiction, Plaintiffs claims would be barred by the statute of limitations.
Gov't Mot. at 4.

               2.      PlaintifflsResponse,

      Plaintiff s May 20, 2015 Response was comprised ofa disparate collection of grievances,
hand written notes, court documents, and letters that did not address the merits of the
Govemment's arguments.

               3.      The Court's Resolution.

       The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.
See Estelle v. Gamble,429 U.5.97,106 (197 6) (holding that the "pro se document is to be liberally
construed"). B:ut, pro se plaintiffs must still "comply with the applicable rules of procedural and
substantive law." Llalsh v. United States, 3 Cl. Ct. 539,541 (1983). The court cannot simply
excuse a complaint's failures. See Henke,60 F.3d at799.

        As a threshold matter, a plaintiff must establish that the court hasjurisdiction to adjudicate
an alleged claim. ,See Trusted Integrdtion, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.
201 1) (holding that the plaintiff "bears the burden of establishing the court's jurisdiction over its
claims by a preponderance ofthe evidence"). The United States Court of Federal Claims may only
issue judgments for money damages against the United States, if the cause of action is grounded
in a contract, a money-mandating statute, or the Takings Clause of the Fifth Amendment. See 28
U.S.C $ 1491; see also Testan, 424 U.S. at 398 (holding that the Tucker Act "does not create a
substantive right enforceable against the United States for money damages" and that it "merely
confers jurisdiction upon it whenever the substantive right exists"). This burden is not relieved
because a plaintiff is pro se. See Henke, 60 F.3d at 799 (Fed. Cir. 1995) (holding that the court
"does not excuse [a complaint's] failures").
        The March 3,2015 Complaint does not satisfy this threshold. The United States Court of
Appeals for the Federal Circuit is the proper venue for Plaintiffs appeal, as was advised in the
October 8, 2014 MSPB decision. Gov't App'x A, at 5 (providing the address to the United States
Court of Appeals under a bolded heading stating "NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS"). This is supported by statute and precedential case law.
,See 5 U.S.C. $ 7703(bXlXA) ("[A] petition to review a final order or final decision of the [MSPB]
shall be filed in the United States Court of Appeals for the Federal Circuit."); U.S.C. $ 1295(a)(9)
("The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction . . .
of an appeal from a final order or final decision of the [MSPB], purswurt to sections
7703(b)(1)[.]"); see also Lindahl v. Office of Pers. Mgmt.,470U.5.768,792 (1985) (holding that,
rather than granting appellate jurisdiction to the United States Court of Federal Claims, "Sections
 1295(a)(9) and 7703(b)(l) together appear to provide for exclusive jurisdiction over MSPB
decisions in the Federal Circuit, and do not admit any exceptions[.]").

        As such, this court does not have the subject matter jurisdiction to adjudicate the claims in
Plaintiff s March 3, 2015 Complaint.

Iv.    CONCLUSION.

     For these reasons, the Govemment's May 4,2015 Motion To Dismiss is granted. Sae
RCFC 12(bX1). The Clerk is directed to dismiss the March 3,2015 Complaint.


       IT IS SO ORDERED.
