     In the United States Court of Federal Claims
                                No. 13-49 C
                           (Filed: April 22, 2013)



**********************

RICHARD LEE PAIVA,

                     Plaintiff,

v.

THE UNITED STATES,

                     Defendant.

**********************

                                  ORDER 1

        Plaintiff, Richard Lee Paiva, is a prisoner within the Rhode Island
Department of Corrections. He filed his complaint here on January 18, 2013.
In it he challenges a Social Security Administration (“SSA”) decision to
suspend his benefits. SSA recently informed plaintiff that it cannot pay him
until he is released from prison, citing the No Social Security Benefits for
Prisoners Act of 2009, Pub. L. No. 111-115, 123 Stat. 3029 (2009) (hereinafter
“the Act”). Plaintiff asserts that before the Act took effect, SSA determined
that it owed him benefits, and it made a payment. He contends the Act
therefore does not apply to him. Before the court is defendant’s motion to
dismiss for lack of jurisdiction.2



1
 The facts are drawn from the complaint and plaintiff’s motion to amend the
complaint.
2
  After defendant filed its motion, plaintiff filed a motion to amend the
complaint. The proposed changes do not invoke the court’s jurisdiction. The
plaintiff’s motion to dismiss is denied as moot.
        Defendant correctly notes that only United States district courts have
jurisdiction to review claims for Social Security benefits. See 42 U.S.C. §
405(g), (h) (2006). The Tucker Act grants the Court of Federal Claims
jurisdiction to hear claims against the United States for money, 28 U.S.C.
1491(a)(1) (2006), but the court “has no jurisdiction under the Tucker Act over
claims to social security benefits.” Marcus v. United States, 909 F.2d 1470,
1471 (Fed. Cir. 1990) (internal citation omitted). We therefore do not have
jurisdiction over plaintiff’s complaint.

        Nor will we transfer the complaint. A transferee court, in this case the
district court, must have jurisdiction for that to be appropriate. See 28 U.S.C.
§ 1631. Although district courts have subject matter jurisdiction over these
types of claims, jurisdiction only attaches under limited circumstances not
alleged here. The claimant either must obtain a final decision from SSA, see
42 U.S.C. 405(g),3 file a mandamus petition, see 28 U.S.C. § 1361, or assert
a constitutional violation, see Califano v. Sanders, 430 U.S. 99, 109 (1977).4

       The court also notes that transfer would appear to be futile in any event.
In Fowlkes v. Thomas, 667 F.3d 270 (2d Cir. 2012), a prisoner appealed the
denial of his post-judgment motion. The prisoner, who became entitled to
benefits before the Act took effect, had requested an order that would force
SSA to pay him. Id. at 270-71. The court of appeals held that SSA could not
make “any payment to an incarcerated individual.” Id. at 271. Those prisoners
are “covered by the Act, regardless of when the underlying obligation to pay
the individual arose.” Id.

      Accordingly, defendant’s motion to dismiss is granted. The plaintiff’s
motion to dismiss is denied as moot. The Clerk of Court is directed to dismiss


3
  A court may grant a waiver of the final decision requirement. See
Weinberger v. Salfi, 422 U.S. 749, 766-67 (1975). That waiver must be
granted by the district court.
4
 Plaintiff states that he has no administrative remedy with SSA because the
agency only suspended his benefits rather than made a formal decision that
denied them. The regulations provide, however, that “[n]onpayment of your
benefits . . . because of your confinement in a jail, prison, or correctional
facility,” 20 C.F.R. § 404.902(t) (2012), is an “[i]nitial determination . . .
subject to administrative and judicial review.” Id. § 404.902.


                                       2
the complaint for lack of jurisdiction and enter judgment for defendant. No
costs.


                                         ___________________
                                         ERIC G. BRUGGINK,
                                         Judge




                                     3
