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                                                 Pro Se
                                             No.   15-66C
                                                                                          FILED
                                        (Filed: August 4,2015)
                                                                                         AUG   - 4 2015
                                                   )                                   U.S. COURT OF
 YVONNE HICKMAN,                                   )                                  FEDERALCLAIMS
                                                   )
                       Plaintiflf,                 )    Tucker Act; 28 U.S.C. $ 1491; Subject
                                                   )    Matter Jurisdiction; RCFC 12(b)(1);
                                                   )    Veterans Benefits; Motion for Recusal; 28
                                                   )    U.S.C. $ ass(a)
 THE LINITED STATES OF         AMERICA,            )
                                                   )
                       Defendant.                  )
                                                   )
                                                   )
                                                   )


       Yvonne Hickman, Glen Bumie, MD,         plaintiff pro   se.


       Matthew P. Roche, T'ial Attomey, with whom were Reginald T. Blades, Jr.,
       Assistant Director, Robert E. Kirschman, Jr.,DirecIor, Benjamin C. Mizer, Acling
       Assistant Attorney General, Commercial Litigation Branch, Civil Division,
       United States Department of Justice, Washington, D.C., for defendant.

                                     OPINIONAND ORDER

       The  plaintiff in this case, Yvonne Hickman, appearing p1q se, contends that the
government engaged in a pattern and practice ofcivil rights violations and conspired to deprive
her of due process of law and equal protection under the Fourteenth Amendment ofthe United
States Constitution. Compl. fl 3. According to Ms. Hickman, the United States Department of
Veterans Affairs ("VA"), relying on what she claims was a fraudulently obtained divorce from
her service-disabled husband, wrongfully denied or interiered with her "marital property rights,
spousal benefits and apportionment pay." Compl. fl 4. She claims entitlement to monetary
damages pursuant to the Federal Torts Claims Act (.'FTCA'), 28 U.S.C. S$ 1346(b), 2671-80, as
well as damages for interfering with her civil rights pursuant to 28 U.S.C. $ 1343(a)(1)-(a) and
42 U.S.C $ 1985(3). Compl. flll 3, 8.

        This case is currently before the Court on plaintiff s motion for recusal of the
undersigned judge and the govemment's motion to dismiss plaintiff s complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) ofthe Rules of the Court ofFederal Claims
C'RCFC'). For the reasons   set forth below,         motion seeking recusal is DENIED, and
                                               plaintiff   s
the govemment's motion to dismiss for lack of subject matter jurisdiction is GRANTED.T

                                        BACKGROUND2

       On September 10,2007, the plaintiff manied Nathaniel Hickman. Compl. Ex. B at 1'
Mr. Hickman is a veteran of the Vietnam war who receives disability compensation benefits
from the VA for 100% service-connected post-traumatic stress disorder. Id. at 2. On December
4,2009, Ms. Hickman separated from Mr. Hickman. Id. at 4.

       Thereafter, Ms. Hickman filed a claim for an apportionment of Mr. Hickman's VA
benefits. See Compl. Ex. A at 1 (VA letter acknowledging claim dated February 22'2010). On
March 8, 2010, Ms. Hickman submitted a request that the VA appoint a guardian to assist Mr'
Hickman in the handling of his affairs with the VA. Id. at 3 (Application for appointment of
guardian). In a statement submitted in support of her request, she alleged that Mr. Hickman was
not competent to manage his finances due to drug addiction and mental health problems. Id.

       On April 1,2010, the VA's Atlanta Regional Office awarded Ms. Hickman $ 150 per
month as an apportionment of Mr. Hickman's VA benefits. Id. at 5. Thereafter, however, on
August 4, 2010, Mr. Hickman sued Ms. Hickman for a divorce in the Superior Court of Glynn
 County, Georgia. Compl. Ex. B at 4-8 ("Domestic Relations Financial Affidavit"). Ms.
 Hickman did not appear for a final hearing on Mr. Hickman's divorce action, and a final
judgment and decree ofdivorce was entered on September 13,2011. Id. at 13.

        In the meantime, before the divorce decree was issued, Ms. Hickman filed a claim for an
increased apportionment of Mr. Hickman's benefits. Compl. Ex. A at 6 (August 29, 201 1 letter
from Atlanta Regional Office of the VA requesting additional information in connection with the
claim for an increased apportionment). This increase was not granted; instead, in light ofthe
Hickmans' divorce, the VA terminated Ms. Hickman's marital apportionment of Mr. Hickman's
benefits. Comp. Ex. A at 9-11.

         On October 15,2012, the VA sent Ms. Hickman a letter providing her with an
opportunity to dispute the termination of her marital apportionment. Id. After Ms' Hickman
unsuccessfully appealed the termination with the VA's Atlanta Regional Office, id. at 12, Ms.
Hickman sought review in the Board of Veterans' Appeals ('BVA). Id. at 14. The disposition
of that request for review is not apparent from the complaint or its accompanying attachments.
On October 30, 2014, however, the VA Civilian Health and Medical program denied her claim
for medical benefits because she was not eligible on the date that the service was claimed.
Compl. fl 9; Compl. Ex. B at 14.

       r Ms. Hickman has filed a motion to proceed in forma pauperis. The Court GRANTS
that motion for purposes ofdeciding the pending motion to dismiss.
       2
         The facts set forth in this section are based on the allegations in the complaint and the
exhibits attached to the complaint, which are all accepted as true for putposes ofdeciding the
sovernment's motion to dismiss.
        On January 23, 2015, Ms. Hickman filed this action. The govemment filed its motion to
dismiss on March26,2015, ECF No. 6, to which Ms. Hickman responded on April 17 '2015,
ECF No. 7. After the goveDment filed its Reply Brief, ECF No. 8, Ms' Hickman sought to file a
document styled "Plaintiff s Response to Defendant's untimely Reply." The court directed the
clerk to retum this document to Ms. Hickman, in light of the fact that the courl's rules do not
provide a right to file a surreply and Ms. Hickman had not sought leave ofthe court to file such
a document. Order 1, May 22,2015, ECF No. 9. Plaintiff filed a response to the Court's order
in which she contended that the defendant had been permitted to file a second motion to dismiss
on April 8,2015 without the Court's leave. Pl.'sOpp'ntoCt. Order at l,June 15,2015, ECF
No. 10. Thereafter, on June 26,2015, Ms. Hickman filed a motion requesting that the
undersigned recuse herself from this case. Pl.'sNoticeto Recuse Judge Kaplan, ECFNo. 11
[hereinafter "Recusal Mot."].

                                           DISCUSSION

L   Plaintiff   s   Motion for Recusal

         As noted above, the plaintiff has filed a motion requesting that the undersigned recuse
herself from this case. A judge must recuse herself "in any proceeding in which [the judge's]
impartiality might reasonably be questioned." 28 U.S.C. $ 455(a). This includes not only when
there is actual bias or prejudice, but also when there is the appearance ofpartiality. Id. This is
an objective test that mandates recusal "when a reasonable person, knowing all the facts, would
question the judge's impartiality." Allphin v. United States, 758 F.3d 1336, 1344 (Fed. Cir-
2014) (quoting Hewlett-Packard Co. v. Bausch & Lomb, Inc. , 882F.2d 1556, 1568 (Fed. Cir'
 1989)).

         A judge is presumed to be impartial, and plaintiff bears a "heavy burden" ofproving
otherwise. See Baldwin Hardware Com. v. Franksu Enter. Corp., 78 F.3d 550, 557 (Fed. Cir'
1996) (concluding appellants did not carry "the heavy burden" necessary to prove their recusal
claim). In that regard, "judicial rulings alone almost never constitute a valid basis for a bias or
parliality motion. . . . Almost invariably, they are proper grounds for appeal, not for recusal'"
Liteky v. United States, 510 U.S. 540, 555 (1994).

        In this case, Ms. Hickman has requested recusal on the grounds that the undersigned
committed "intentional" legal error in "accept[ing] Defendant's untimely second motion without
leave ofcourt" and "fail[ing] to sanction Defendant's counsel as appropriate for his fraud upon
the court" pursuant to RCFC 11(b). Recusal Mot. 1. According to plaintifl these actions
establish that the undersigned judge "cannot carry out the duties ofadjudicating Plaintiff s case
without committing a fraudulent act." Id.

         Although not entirely clear, plaintiffs motion for recusal appears to have been provoked
by the Court's May 22,2015 order directing the retum to plaintiff of the document lodged with
the Clerk and styled "Plaintiff s Response to Defendant's Untimely Reply." See Order 1; Pl.'s
Opp'n to Ct. Order at 1 . Thus, she asserts that while the defendant was allegedly permitted to
file a second motion to dismiss on April 8, 2015, without requesting the leave ofcourt, plaintiff
was not given a similar opporlunity when she responded to "corect the record" in her "Response
io Defendant's Untimely Reply" which the court directed the clerk to retum to her unfiled. Pl.'s
Opp'n to Ct. Order at l.

        Plaintiff s basis for requesting recusal-that the defendant was allowed to file a second
motion to dismiss on April 8, 2015 or file pleadings out of time-is not supported by the record.
The government has frled only one motion to dismiss in this action and that motion was timely
filed under the rules of this Courl.l

        In any event, as noted above, priorjudicial rulings alone "almost never constitute a valid
basis for a bias or partiality motion." Litekv, 510 U.S. at 555. Because a reasonable person
would not question the undersigned's impartiality based on the matters raised by the plaintiff, the
undersigned will not recuse herself from this case. Therefore, plaintiff s motion seeking recusal
is   DENIED.

II.   Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

             A.   Standard of Review for Motion to Dismiss

        In deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court
presumes all undisputed factual allegations to be true and conshues all reasonable inferences in
favor ofthe plaintiff. Scheuer v. Rhodes,416 U.S.232,236 (1974). Jurisdiction is a threshold
issue, and as such, "a court must satisff itselfthat it hasjurisdiction to hear and decide a case
before proceeding to the merits." Ultra-Precision Mfg.. Ltd. v. Ford Motor co., 338 F.3d 1353,
1356 (Fed. Cir.2003). The plaintiff bears the burden of establishing subj ect matter jurisdiction,
Alder Terrace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998), and must do so by a
preponderance ofthe evidence. Brandt v. united states, 710 F.3d 1369,1373 (Fed. Cir. 2013)'
If defendant challenges jurisdiction, the plaintiff cannot merely rely upon allegations in the
complaint, but must instead bring forth relevant, competent proofto establish jurisdiction by a
preponderance of the evidence. McNutt v. Gen. Motors Acceptance Com , 298 U.S. 178' 189
(1936); see also Cedars-Sinai Medical Ctr. V. Watkins, 11 F.3d 1573,1584 (1993).

        While a pro se plaintiff s pleadings are held to "less stringent standards than formal
pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519,520 (1972), even pro se plaintiffs
must persuade the Court that jurisdictional requirements have been met. Bemard v. United
states, 59 Fed. Cl. 497 ,500 (2004), affd, 98 F. App'x 860 (Fed. cir. 2004).


         3
          Plaintiff filed her complaint on J anuary 23,2015, and the defendant filed a motion to
dismiss pursuant to RCFC 12(b)(1) on March 26, 20i5 in accordance with RCFC 12(a)(l),
which allows the defendant 60 days to file a responsive pleading to plaintiffs complaint. Under
RCFC 7.2(bX1), plaintiff had 28 days to file a response to defendant's motion, which she timely
filed on April 17,2015. Under RCFC 7.2(b)(2), defendant had 14 days to file a reply to
plaintiff s response, which defendant timely filed on May 4, 2015. As stated in the Court's May
22,2015 order, the rules do not provide for any other pleadings in connection with a motion to
dismiss. Thus, plaintiff was required to ask the permission ofthe Court to file a response to the
govemment's reply, which she did not do.
           B. Application   of Standard in This Case

         The Court ofFederal Claims has jurisdiction under the Tucker Act to hear "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. $
1a91(a)(1) (2012). The Tucker Act waives the sovereign immunity of the United States to allow
a suit for money damages, United States v. Mitchell, 463 U.S. 206'212 (1983), but it does not
confer any substantive rights. united states v. Testan,424U.5.392,398 (1976). Therefore, a
plaintilf seeking to invoke the court's Tucker Actjurisdiction must identify an independent
source ofa substantive right to money damages from the United States arising out ofa contract,
statute, regulation or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation
Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).

        "Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act." Mitchell, 463 U.S. at 216. "[T]he claimant must demonstrate
that the source of substantive law he relies upon 'can fairly be interpreted as mandating
compensation by the Federal Govemment for the damages sustained."' ld at216-l1 (quoting
Testan,424 U.S. at 400). In this case, Ms. Hickman has failed to meet her burden of
demonstrating this Court's jurisdiction over her claims.

        Ms. Hickman's prima.ry contention is that the VA wrongfully terminated her marital
apportionment and other VA benefits based on what she claims is an invalid divorce decree.
compl. fl 7. Pl.'s Resp. 5-6. Specifically, she contends that the divorce decree was fraudulent
because her husband lacked legal capacity to represent himself at the time of the divorce and that
the court granting the divorce was a lawyer sitting pro hac vice. Id.; Compl. t| 7; see also Ga.
Code Ann $ 15-6- 14 (201 5) (authorizing an attorney who is not a judge to "exercise all functions
of ajudge" in specified circumstances).

         This Court, of course, lacks jurisdiction to review the validity of a divorce decree issued
by a Georgia court under Georgia law. More to the point, this Court lacks jurisdiction over
veterans' benefits claims. See 38 U.S.C. $ 511(a) (stating that decisions by the Secretary are
"final and conclusive and may not be reviewed by any other official or by any court," subject to
certain exceptions); see also Trevino v. United States, 1 13 Fed. Cl. 204,209 (2013) (holding that
the United States Court ofFederal Claims does not have jurisdiction over claims for denial of
veterans' benefits), af?d,557 Fed. App'x 995 (Fed. Cir.2014). Instead, denial of an application
for benefits may only be appealed to the BVA. See 38 U.S.C. $ 710a(a) ("All questions in a
matter which under section 51 1(a) ofthis title is subject to decision by the Secretary shall be
 subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made
by the [BVA]."). BVA decisions, in tum, may only be appealed to the United States Court of
Appeals for Veterans Claims. See 38 U.S.C. $ 7252(a) ("The Court of Appeals for Veterans
 Claims shall have exclusive jurisdiction to review decisions of the [BVA]."). Decisions ofthat
 court are then reviewable by the United States Court of Appeals for the Federal Circuit. See 3 8
 U.S.C. $ 7292(c) (grriing the United States Court ofAppeals for the Federal Circuit exclusive
jurisdiction to review the denial of veterans' benefits by the United States Court ofAppeals for
Veterans Claims).
        Nor does this Court have jurisdiction over Ms. Hickman's claims based on the Federal
Tort Claims Act ("FTCA"). See Compl. fl 2 (alleging that "this court has the authority to grant
monetary relief under 28 U.S.C. $ 1346(b)'). Although the FTCA "waives sovereign immunity
as to claims arising in tort," it expressly vests federal district courts with "exclusive jurisdiction"
to entertain those claims. Awad v. United States, 301 F.3d 1367,1372 (Fed. Cir. 2002); see also
28 u.s.c. $ 1346(b).

         Similarly, this Court does not possess jurisdiction to entertain Ms. Hickman's remaining
tort claims on any other basis. See Compl. fl 5 (accusing the VA of conspiracy to commit fraud,
as well as fraudulent misrepresentation and concealment). "The plain language of the Tucker
Act excludes from the Court of Federal Claims jurisdiction claims sounding in tort'" Rick's
Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.2008) (citing 28 U.S.C. $
 1491(a)(l). Indeed, the Tucker Act expressly limits this Court's jurisdiction to claims for
damages "not sounding in tort." 28U.S.C. $1491(a)(l). See Shearin v. United States,992F.2d
 1195,1197 (Fed. Cir. 1993). Ms. Hickman's various tort claims of misrepresentation, fraud, and
conspiracy must, therefore, be dismissed for lack of subject-matter jurisdiction. See Berdick v.
United States, 612F.2d 533, 536 (Fed. Cir. 1979) (conspiracy is a torl); Jumah v. United States,
 90 Fed. Cl. 603, 607-08 (2009) (misrepresentation is a tort that falls outside this Court's
jurisdiction); Phang v. United States, 87 Fed. Cl. 321, 325 (2009) (no jurisdiction over fraud
 claims that sound in tort).

         Ms. Hickman's claims under the Due Process and Equal Protection Clauses are similarly
beyond this Court's j urisdiction as those constitutional provisions are not money mandating. See
LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) (holding that "alleg[ed] violations
of [plaintiff s] rights under the Due Process Clauses ofthe Fifth and Fourteenth Amendments,
 [and] the Equal Protection Clause ofthe Fourteenth Amendment" are not "a sufficient basis for
jurisdiction because they do not mandate payment of money by the Govemment"); Camrth v.
United States, 627 F .2d 1068, 1081 (Ct. CI. 1980) (holding that the Court does not possess
jurisdiction "over claims based upon the Due Process and Equal Protection guarantees of the
Fifth Amendment, because these constitutional provisions do not obligate the Federal ovemment
to pay money damages").4

         Finally, this Court does not possess jurisdiction to entertain claims for damages based on
civil rights violations brought pursuant to 28 U.S.C. $ 13a3(a)Q)-(a) and 42 U.S.C' S 1985(3),
because jurisdiction over such claims resides exclusively in the district courts. See 28 U.S.C.
$ 13a3(a) (stating that "district courts shall have original jurisdiction" over civil claims brought
pursuant to 42 U.S.C. $ 1985); Del Rio v. United States, 87 Fed. Cl. 536, 540 (2009); Marlin v.

        4
          In her response to plaintiff s motion to dismiss, Ms. Hickman alleged for the first time
that the government violated her First Amendment rights. Pl.'s Resp. 8 ("Plaintiffl'sl claims are
pursuant to the U.S. Constitution involving the First Amendment, the prohibited practice that
prevented Plaintiff the right to petition the government in redress regarding a pro hac vice
divorce."). The Court also lacks jurisdiction over this claim. The First Amendment is not a
money mandating provision of the Constitution. United States v. Connolly,716 F.2d 882, 886-
87 (Fed. Cir. 1983) ("We agree with the Court of Claims that the first amendment, standing
alone, cannot be so interpreted as to command the payment of money.").
United States, 63 Fed. Cl. 475,476 (2005). Thus, to the extent that Ms. Hickman relies on 42
U.S.C. $ 1985(3) in conjunction with 28 U.S.C. $ l3a3(a)(l)-(a) as a source of substantive law
that provides a right to money damages, her reliance on those provisions is misplaced. See
Shame v. United States, 112 Fed. CL 468,476 (2013) (holding that ,,jwisdiction to hear such a
claim belongs exclusively to the district courts, and the Court of Federal Claims is not a district
court" (intemal citations omitted)).

                                         CONCLUSION

        For the reasons set forth above, plaintiff s motion for the undersigned judge to recuse
herself is DENI[,D, the govemment's motion to dismiss under RCFC 12(bX1) is GRANTED,
and plaintiff s complaint is DISMISSED without prejudice for lack of subject matter
jurisdiction. Each side shall bear its own costs. The clerk of the court is directed to enter
judgment accordingly.

       IT IS SO ORDERED.

                                                             L/L
                                                     ELAINE D. KAPLAN
                                                                            -
                                                     Judge
