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     lln                  tt:e           @nite! btuteg {,,ourt of ;felerst @lsimg
                                                                                                           No. l8-454
                                                                                                   Filed: September 21, 2018
                                                                                                                                                                FILED
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                                                                    :1.



                                                                                                                                                               SEP 2 1 2OE
DARLENE BENNETT,                                                                                                                                              U.S. COURT OF
                                                                                                                                                             FEDERAL CLAIMS
                       Dlointiff              nra       ca




THE LTNITED STATES,

                       Defendant.

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Darlene Bennett, Suitland, Maryland, Plaintiff, pro se'

Joshua A. Mandelbaum, United States Department of Justice, Civil Division, Washington, D.C',
Counsel for the Govemment.

                                                        MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Senior Judge.

I.                     RELEVANTFACTUALBACKGROUND.'

        on November 9, 201',7 ,Ms. Darlene Bennett submitted an Income-Driven Repayment Plan
Request (.,lDR Request") to the United states Department of Education (the "DoE"). Compl.
at 2. "Income-drivin repayment . . . plans are designed to make [a bonower's] student loan debt
more manageable by reducing [the] monthly payment amount." see FenEn,cL STUDENT AtD, AN
OFFTCE oF rue U.S. Drpenrvpur oF EDUcArloN, INCoME-DRIVEN REPAYMENT (IDR) PLAN
REeSEST, https://studentloans.gov/myDirectloan/ibrlnstructions.action (last visited Sept. 19'
2018). Question 17 of the IDR Request asks: "Has your income significantly changed since you
filed your last federal income tax retum." compl. Ex.2 at6. If the borrower's response is "no,"
the IDR Request requires the borrower to "[p]rovide [her] most recent federal income tax retum
or transcript." compl. Ex. 2 at 6. Ms. Bennett responded "no" to Question 17 of the IDR Request,
but did noi submit her most recent federal income tax retum or transcript. Compl. Ex. 2 at 6.




         I The facts herein were derived from the March 27, 2018 Complaint ("Compl.") and
 attached exhibits thereto ("Cornpl. Exs. 1-2").



                                                                                                                                                  ?0t   a 00rr0 0001 1353 3e1,5
        On November 14,2017, Fedloan Servicing2 sent Ms. Bennett an e-mail stating that her
federal student loans were in default. compl. Ex. 2 at 14 (e-mail from Fedloan Servicing to
Darlene Bennett). The November 14,2017 e-mail informed Ms. Bennett that she had "30 days to
contact Fedloan Servicing to review [her] options or [her] loans may be transferred to the [DOE]'s
Default Resolution Group." Compl. Ex.2 at 14.

        on November 21, 2017, Fedloan Servicing sent Ms. Bennett an e-mail acknowledging
receipt of her IDR Request. Compl. Ex. 2 at 15 (e-mail from Fedloan Servicing to Darlene
Bennett).

        On February 6, 2018, the DOE sent Ms. Bennett a letter to inform her that, "Action
Financial Services, LLCt3l . . . has commenced collection efforts" concerning her federal student
loan debt. Compl. Ex. 2 at 9 (letler from the DOE to Darlene Bennett). The February 6, 2018
letter also stated that "the entire unpaid balance of [Ms. Bennett's] loan is due and payable."
Compl. Ex. 2 at 9.

       on February 24,2018, Fedloan Servicing     sent Ms. Bennett an e-mail providing her with
..information that                                                         to answer . . . Billing
                   [Fedloan Servicing's] customers have found most helpful
& Payment questi;ns." compl. Ex. 2 at 13 (e-mail from Fedloan Servicing to Darlene Bennett).

      on March 12, 2018, Ms. Bennett contacted the DoE Inspector General's office twice
conceming her IDR Request. Compl. at 4. On that same day, Fedloan Servicing sent Ms. Bennett
          -acknowledging
an e-mail                receipt oi "[Ms. Bennett's] complaint about [the IDR Request], which
was submitted before [Ms. Bame$'s] loans defaulted" and stating that Fedloan Servicing was
"working with the appropriate experts to research this issuef' consequently, Ms. Bennett',s "loans
                                                               Compl' Ex 2 at 3
[were] rJquested foi i reinstatement back to good standing'"

        on March    19, 2018, Fedloan Servicing sent Ms. Bennett a letter stating that it could not
restore her defaulted loans to good standing, bicause her IDR Request was incomplete,-although
it was received prior to the loin transfer date.a Compl. Ex.2 aI2 (letter from Fedloan Servicing
to Darlene Bennett) (..Although your IDR [Request] was received . . . , [it] was incomplete. You
did not provide the required supporting documentation[.]"). Therefore, even if Ms- Bennett
submittei a complete fnR nequist, nevlfiheless, she must continue making scheduled monthly
student loan payments, becauie "there was no General Forbearance time available on [her]
account[.],' iompl. Ex. 2 at 2. After receiving this information, Ms. Bennett again contacted
Fedloan Servicing. ComPl. at 4.




          2 Fedloan Servicing is a commercial enterprise operated by the Pennsylvania_ Higher
                                                                                                     WE
 Education Assistance Agency, that services fedelal student loans. FpOLO,A.N SERVICING, WHO
 Ane,' http://myfedloan.oig/general/about/who-we-are         (last visited Sept' 19' 2018)'
          3^Action Financiai Services, LLC is a private company that collects federal student loan
 debt on behalf of the DOE. ,See AcrIoN FINANcIAL SERVIcES, LLC, ABour Us,
 http://actionfinancialservices.neVaboutus.html      (last visited Sept' 19,2018)'
    ^ 4                          this letter to reflect that Ms. Bennett's federal student loan account
            The court construes
 with Fedloan Servicing was transferred to Action Financial Services, LLC'
       On March 23, 2018, Fedloan Servicing informed Ms. Bennett in an e-mail that it is "unable
to take action on [Ms. Bennett's] concem due to procedural policy and goveming regulation."
Compl. Ex. 2 at 1 (e-mail from Fedloan Servicing to Darlene Bennett).

II.    PROCEDURALHISTORY.

        On March 27, 2018, Ms. Darlene Bennett ("Plaintiff') frled apro se Complaint ("Compl'")
in the United States Court of Federal Claims alleging that her federal student loan account "was
wrongly defaulted, closed[,] and given to a collection agency for collection'" Compl. at       l The
March27,2018 Complaint requests     "[r]elief of [Plaintiff s] student loan through the student loan
forgiveness program" and "monetary relief at the judge[']s discretion for unnecessary
harassment[,] because [Plaintiffl is not able to pay, being ignored, stress for having to eontinue to
revisit this hard issue as well as any court cost and legal fees for attomey[,] ifone is hired." compl.
at 3.

        on May 1,2018, the Govemment filed an Unopposed Motion For Extension of Time for
an additional twenty-one days to file a response to Plaintiff s March 27,2018 Complaint. On May
4,2018, the court issued an Order granting the Govemment's May 1, 2018 Unopposed Motion.
On May 8, 2018, Plaintiff filed a Notice of a conversation with the Govemment's Counsel
concerning jurisdiction and the possibility of settlement.

        on June 19. 2018, the Govemment filed a Motion To Dismiss ("Gov. Mot."), pursuant to
Rules of the United States Court of Federal Ctaims l2(b)(1) and 12(bX6). On June 26,2018'
plaintiff filed a,,Motion opposing Defendant's Motion To Dismiss" ("P1. Resp.").' on July 13,
2018, the Govemment filed a Reply ("Gov't Reply.").

       On August 22,2018, Plaintiff filed a Notice, together with an attached copy of Plaintiff s
Fedloan Servicing account summary, stating that a payment in that account was due on August 24,
2018. The Auguit 22, 2018 Notice also stites that the Govemment's Counsel informed Plaintiff
in May 2018 that plaintiffs account was "placed on indefinite hold and that all interest and late
fees had been removed."

III.    DISCUSSION.

        A. Jurisdiction,
        The United States Court of Federal Claims has jurisdiction under the Tucker Act,
28 U.S.C. g 1491, to adjudicate "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
                                                                                     jurisdictional
cases not sounding in tort." 28 U.S.C. $ 1a91(a)(l). The Tucker Act, however, is "a
statute; it does noi 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
Claimlsl whenevir ihe substantive right exists." UnitedStatesv. Testan,424U 5.392'398 (1976).


         5
          The court construes Plaintiff s J:u|ire26,2018 Motion as a Response to the Govemment's
 June 19, 201 8 Motion To Dismiss.
         To pursue a substantive right under the Tucker Act, a plaintiff must identifr and plead an
independent eontractual relationship, Constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. Uniled States,
386 F.3d 1091, 1094 (Fed. Cir. 2004) ("lJ]urisdiction under the Tucker Act requires the litigant to
identify a substantive right for money damages against the United States separate from the Tucker
Act[.]"). Specifically, a plaintiff must demonstrate that the source of substantive law upon which
he relies "can fairly be interpreted as mandating compensation by the Federal Government."
 (Jnited states v. Mitchell,463 u.s. 206,216 (1983) (quoting Testan,424 U.S. at 400). Plaintiff
must also make "a non-frivolous allegation that [he] is within the class of plaintiffs entitled to
recover under the money-mandating source." Jan's Helicopter Serv , Inc. v. F A A.,525 F.3d
 1299,1309 (Fed. Cir. 2008).

        B.   Standards Of Review.

                 i.   Standard Of Review For A Motion To Dismiss, Pursuant To Rule Of The
                      United States Court Of Federal Claims 12(bXl).

          A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas of substantive law            is properly raised by a [Rule] 12(b)(1) motion[.]"
Palmer v. {Jnited states, 168 F.3d 13 10, 13 13 (Fed. Cir. 1999); see a/so RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (1) lack of subject-matter
                                                                                   jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court
..must accept as1rue all undisputed facts asserted in the plaintiffs complaint and draw all
reasonable inferences in favor ofthe plaintiff." Trusted Integration, Inc.v. United States, 659 F .3d
 I 1 s9, I 163 (Fed. Cir. 201 I ).

                ii'StandardOfReviewForAMotionToDismiss,PursuantToRuleofThe
                      United States Court Of Federal Claims l2(b)(6)'

       A challenge to the United States Court ofFederal Claims' "[ability] to exercise its general
power with ,"gurd to the facts peculiar to the specific claim . . . is raised by a [Rule] l2(b)(6)
motion[.],' Palmer,768 F.3d at 1313; see also RCFC l2OX6) (authorizing a p€rty to move to
dismiss a comptaint for..failure to state a claim upon which reliefcan be granted").

       When considering whether to dismiss an action for failure to state a claim, the court must
assess whether "a claim has been stated adequately" and whether "it may be supported by [a]
showing [o1] any set of facts consistent with the allegations in the complaint" Bell Atl.
Corp. ul  i*i-bl,/, 550 U.S. 544, 563 (2007). The plaintiff s factual allegations must be
subitantial enough to raise the right to relief "above the speculative level." Id.at555. The court
must accept all factual allegations in the complaint as true and make all reasonable inferences in
 favor of the plaintiff. Id.
              iii.   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, 412 F.2d 1285,
 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffls
complaint, the court "does not excuse [a complaint's] failures." Henke v. United Slates,60 F.3d
795,799 (Fed. Cir. 1995). A pro se plaintiff must still establish the court's jurisdiction. See
Tindle v. United States,56 Fed. Cl. 337,341(Fed. Cl. 2003) ("The fact that plaintiff is proceeding
pro se, however, does not change the ultimate legal standard and plaintiff s burden of proof on
subject matter jurisdiction.").

       C. The Government's June 19' 2018' Motion To Dismiss.
                i.   The Government's Argument.

         The Govemment argues that the March2T ,201 8 Complaint should be dismissed, pursuant
to RCFC 12(bxl), because it "does not identify any source of law," as the basis for the claims
alleged therein. Gov't Mot. at 5. To the extent that the March 27,2018Complaint can be construed
as alleging a violation of the Administrative Procedure Act ("APA')' 5 U.S,C. $$ 701 et seq., any
such claim must be dismissed, because the APA is not a money-mandating statue. See
 Il'opsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) ("the APA does not authorized an
award of money damages at all"). To the extent the March27,2018 Complaint can be construed
as alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"), l5 U.S.C. $$ 1692 et
seq., any such claim must be dismissed, because Congress has authorized the United States District
Courts, with exclusive jurisdiction to adjudicate such claims. See 15 U.S.C. $ 1692k ("Any action
to enforce any liability created by this subchapter may be brought in any appropriate United States
[D]istrict [C]ourt").
        The March 27,2018 Complaint also should be dismissed' pursuant to RCFC 12(b)(l), to
the extent that it alleges tort claims. Gov't Mot. at 6. The Tucker Act provides that the court does
not have jurisdiction to adjudicate a claim "sounding in tort." 28 U.S.C. $ 1a91(a)(1). Since the
 March 2i,2018 Complaint also requests monetary relief for "unnecessary harassment," "being
ignored," and "stress for having to continue to revisit this hard issue." Gov't Mot. at 6 (citing
Compl. at 3). To the extent that the March 27,2018 Complaint alleges claims that sound in tort,
they also must be dismissed.

        To the extent the March 27,2018 Complaint requests relief from Plaintiffls obligation to
repay her student loans and an order to DoE employees to "do their job" (compl. at 9), the court
alio does not have jurisdiction to adjudicate claims for equitable relief, without an underlying
claim for money judgment. see James v. Caldera,l59 F.3d 573, 580 (Fed. cir. 1998) ("lt is true
that limited equitable relief sometimes is available in Tucker Act suits[, but] that equitable relief
must be incident of and collateral to a money judgment") (intemal quotation marks and citation
omitted); see also Stephanatos v. United Stares,8l Fed. Cl. 440, 445 (Fed. Cl. 2008) ("It is
rudimentary that the [United States] Court of Federal Claims lacks jurisdiction to grant general
equitable reliel"). Similarly, the court does not have jurisdiction to adjudicate claims alleged in
the March 27, 2018 Complaint, based on statutes and regulations goveming DOE's Public Service
Loan Forgiveness Program ("PSLF Program"), because they are not money-mandating' Gov't
Mot. at 7-8 (citing 20 U.S.C. $ 1087(e); 34 C.F.R. $ 685.219(c)(1)).

         In the alternative, the March 27 ,2018 Complaint should be dismissed, pursuant to RCFC
12(bX6), because it does not "validly plead[] a claim for violation ofthe statutes and regulations
goveming the PSLF [P]rogram," nor a claim for illegal-exaction. Gov't Mot. at 8-9. Under the
PSLF Program, the Secretary of Education "shall cancel the balance of interest and principal
due . . . and any eligible Federal Direct Loan not in default," ifa bonower has "made 120 monthly
payments" and "been employed in a public service j ob" when those 120 payments were made. See
20 u.s.c. $ 10s7e(m)(l); see also 34 c.F.R. $ 685.219(c)(1). The March 27,2018 Complaint
does not allege that Plaintiff made i20 monthly payments while employed in a public service
                                                                                               job.
Gov't Mot. it 8. Nor did the March 27,2018 Complaint plead a valid illegal-exaction claim, as it
does not allege that "either DOE, or the collection agency, has actually collected my money from
her." Gov't Mot. at 9 (italics in original).

               ii.    Plaintiff   s ResPonse.

       Plaintiff responds, that the claims alleged in the March 27 ,2018 complaint should not be
construed to be a ilaim under the APA, the Fair Debt Collection Practice Act, nor the Public
Service Loan Forgiveness Program. Pl. Resp. at 2 ("The complaint [does not allege a violation ofl
the Public Service Loan Forgiviness Program but against the Individual Driven Repayment Plan");
Pl. Resp. at 5 ("the APA does not matter if the case is against the United States."); Pl. Resp. at 6
(..The Flaintiff complaint cannot be construed with the Fair Debt Collection Practice Act or any
other Act."). Instead, the March 27 ,2018 Complaint "informs the court simply that somehow my
IDR   Request] was missed and not processed. Pl. Resp. at 2; Pl. Resp. at 5 ("Plaintiff had to file
a lawsuit in order to get the     [DOE]'s attention."),
        plaintiff also responds that the "[March 27, 201 8 C]omplaint . . . is not to be construed with
anything,' and that "Plaintiff is not in no way possible trying to exact or exto( an)'thing from the
Gov[enirnen]t." Pl. Resp. at 3. In addition, "[t]his court has full authority and the power to
entertain tort claims." Pl. Resp. at 5 (citing 42 U.S.C. $ 1983 ("Every person who, under color of
any [aw] of any state . . . rub;."tr . . . any citizen of the United states . . . to the deprivation of
uny .lgtttr, privileges, or immunities secured by the Constitution and laws, shall be liable to the
purty i.i*"i in an-action at law, suit in equity, or other proper proceeding for redress[.]")).

               iii.   The Government's RePlY.

        The Govemment replies that only the United States District Courts have jurisdiction to
 adjudicate claims alleged, fursuant to 42 U.S.C. g 1983. Gov't Reply at I (citing 42 U.S.C. $
 tf+:(aX+) (,,The district courts shall have original jurisdiction of any civil action authorized by
 law to be commended by any person . . . to ,""ou"r damages or to secure equitable or other relief
 under any Act of Congress providing for the protection of civil rights, including the right to vote"').
                iv.    The Court's Resolution.

         The Tucker Act provides:

         The United States Court of Federal Claims shall have jurisdiction to render
         judgment upon any claim against the United States founded either upon ihe
          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. $ la91(a)(1).

        The United States Supreme Court has held that, "[n]ot every claim invoking the
Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must
be one for money damages against the united States[.]" see united states v. Mitchell,463 u.s.
206,216 (1983). A statute or regulation is money-mandating when it "can fairly be interpreted as
mandating compensation by the Federal Govemment." See United Stales v Navajo Nation' 556
u.s.287 ,290 (2009) (intemal quotation marks and citation omitted). And, the money-mandating
source oflaw must be distinct from the Tucker Act itself. ,See ld (The Tucker Act does not create
"substantive rights; [it is a] jurisdictional provision[] that operate[s] to waive sovereign immunity
for claims premised on other sources of law[.]") (intemal quotation marks omitted).

        In this case, the M arch 27 ,2018 Complaint fails to allege a claim that Congress authorized
the United States Court of Federal Claims to adjudicate, as it does not identifu "an independent
contractual relationship, constitutional provision, federal statute, and/or executive agency
regulation that provides a substantive right to money damages." SeeTodd,386 F.3da1.1094. In
falt, th" l,larci 21,2018 Complaint does not identify any source of law as the basis for the
allegations contained therein. Compl. 1-4. Indeed, Plaintiffs June 26,2018 Response states,
                                                                                                  "for
the iecord that this claim is not to be construed with any statute, regulation, or program." Pl.
                                                                                                 Resp.

 ar2; see aiso Pl. Resp. at 3 ("Plaintiff['s March 27,2018 C]omplaint and stated allegation [are]
not io be construed with anyhing.'). iherefore, Plaintiff has not met the burden of establishing,
by a preponderance of the evidenie, that the court hasjurisdiction to adjudicate the claims alleged
in the March    2'7   ,2018 ComPlaint.

IV.       CONCLUSION.

          For these reasons, the Govemment's June I 9, 201 8 Motion To Dismiss is granted, pursuant
to RCFC     l2(bXl).     The Clerk ofCourt is directed to enter judgment accordingly

          IT IS SO ORDERED.



                                                                 G. BRADEN
