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                                                                                                                                                No.18-1309C
                                                                                                                           (Filcd:Fcbruary 12,2019)


ALEKSANDR BIBLE,                                                                                                                                  *
                                                                                                                                                            *

                                                                          Plainti鶴                                                                          *
                                                                                                                                                            *
                                                                                                                                                            *          Pro Sc Plaintitt RCFC 12(b)(1);SuttCCt
                          V.
                                                                                                                                                            *          Matter」 urisdiction;Offsets;I.R.C.§   6402
THE UNITED STATES,                                                                                                                                          *
                                                                                                                                                            *

                                                                          Defendant.                                                                        *
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Aleksandr Bible, San Pedro, CA, appearing pro                                                                                                                    se.


Margaret Sheer, United States Department of Justice, Washington, DC, for defendant.

                                                                                                                            OPINION AND ORDER

SWEENEY, Chief Judge

        This case arises out of pro se plaintiff Aleksandr Bible's efforts to recover portions of his
 2015,2016, and20l7 tax refunds that the United States Department of the Treasury Bureau of
Fiscal Service ("BFS") withheld to offset an overpayment of benefits from the California
Employment Development Department ("EDD"). Defendant moves to dismiss Mr. Bible's
complaint for lack of subject matter jurisdiction pursuant to Rule 12(bXl) of the Rules of the
United States Court of Federal Claims ("RCFC"). As explained below, the court lacks
jurisdiction to consider Mr. Bible's claims. Therefore, in addition to granting Mr. Bible's
application to proceed in formapauperis, the court grants defendant's motion and dismisses the
complaint.

                                                                                                                                     I. BACKGROUND
       On March 12,2074, a California state court granted the EDD's request for summary
judgment against Mr. Bible with respect to a claim that the department overpaid his
unemployment benefits.l Certificate Summ. J., Summ. J., and Notice of Entry of J., State of
Cal.. Emp't Dev. Dep't v. Bible, No. 2014-90007370-CV (Cal. Super. Ct., Sacramento, Mar. 12,

                          I
          The facts and allegations in this section are derived from Mr. Bible's complaint, related
state court proceedings, and statutes governing the BFS's authority to conduct offsets. See
Sebastian v. United States, 185 F.3d 1368, I374 (Fed. Cir. 1999) (permitting consideration of
public records when reviewing a motion to dismiss).
2014). A few years later, on August 24,2018, Mr. Bible filed the instant lawsuit in which he
claims that the BFS, acting pursuant to Section 6402 of the Internal Revenue Code ("I.R.C."),
improperly offset his tax refunds to pay his debt to the EDD.2 Specifically, he alleges that the
BFS offset $10,000 of his 2015,2016, and20l7 tax refunds after California, relying on the
aforementioned state court decision, notified BFS that Mr. Bible was indebted to EDD for
overpaid unemployment benefits. Mr. Bible avers, however, that the BFS should not have offset
his refunds because he was not overpaid by the EDD.

       Defendant moved to dismiss Mr. Bible's complaint for lack of subject matter jurisdiction
pursuant to RCFC 12(bX1). The motion is now fully briefed. The parties did not request oral
argument, and the court deems it unnecessary. Thus, defendant's motion is ripe for adjudication.

                                    II.   LEGAL STANDARDS

                                          A. RCFC       12(bX1)

         In determining whether subject matter jurisdiction exists, the court generally "must
 accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable
 inferences in favor of the plaintiff." Trusted Integration. Inc. v. United States, 659 F.3d I 159,
 I 163 (Fed. Cir. 201 I ). With respect to a motion to dismiss for lack of subject matter jurisdiction
pursuant to RCFC 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of
 evidence, that the court possesses subject matter jurisdiction. Id. However, the court is not
 limited to the pleadings in considering subject matter jurisdiction. Banks v. United States, 741
F.3d 1268, 1277 (Fed. Cir.2014); Pucciariello v. United States, 1 16 Fed. Cl. 390, 400 (2014).
 Further, the court has no subject matter jurisdiction over frivolous claims. Moden v. United
 States,404 F.3d 1335, 1340-41 (Fed. Cir. 2005). For example, there is no subject matter
jurisdiction over claims that are "so insubstantial, implausible, foreclosed by prior decisions . . . ,
 or otherwise completely devoid of merit as not to involve a federal controversy." Id. at I34l
 (internal quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25,33 (1992) ('[A]
 finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
 irrational or the wholly incredible . . . ."). If the court finds that it lacks subject matter
jurisdiction over a claim, RCFC 12(hX3) requires the court to dismiss that claim.

                                          B. Pro Se Plaintiffs

       Pro se pleadings are "held to less stringent standards than formal pleadings drafted by
lawyers" and are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89,94 (2007) (per
curiam) (internal quotation marks omitted). However, the "leniency afforded to a p1q-Se litigant

        2 In his complaint, Mr. Bible specifically alleges that the BFS and United States Internal
Revenue Service improperly offset his tax refund. The offset program, however, is only
conducted by the BFS. IRS, Tax Tip 2076-44, Tax Refund Offsets Pay Unpaid Debts (2016),
https://www.irs.gov/newsroom/tax-refund-offsets-pay-unpaid-debts [https://perma.cclB93E-
7XKVI. See generally 3l C.F.R. $ 285.8 (2018). The court, therefore, construes Mr. Bible's
allegations as pertaining to actions taken by the BFS.


                                                  -2-
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States, 75 Fed. Cl.249,253 (2007); accord Henke v. United States, 60 F.3d
795,799 (Fed. Cir. 1995) ("The fact that [the plaintiff] acted pro se in the drafting of his
complaint may explain its ambiguities, but it does not excuse its failures, if such there be."). In
other words, B pre_S9 plaintiff is not excused from his burden of proving, by a preponderance of
evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 7lg (1936); Banks, 741 F.3d at 1277 (citing Reynolds v. Army & Air Force Exch.
Serv., 846F.2d746,748 (Fed. Cir. 1988)).

                                 C. Subject Matter Jurisdiction

          Whether the court possesses jurisdiction to decide the merits of a case is a "threshold
matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). Subject matter
jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case'"
Arbaugh v. Y & H Com., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S'
 AZS, SiO Q002)). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
 is power to declare the law, and when it ceases to exist, the only function remaining to the court
 is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S' (7 Wall)
 506, 514 (1868). Therefore, it is "an inflexible matter that must be considered before proceeding
to evaluate the merits of a case." Matthews v. United States,72Fed. CL.274,278 (2006); accord
 K-Con Blde. Sys.. Inc. v. United States,778F.3d 1000, 1004-05 (Fed. Cir. 2015). Either pafiy,
 or the court sua sponte, h&y challenge the court's subject matter jurisdiction at any time.
 Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. CL.203,209-10 (2016)
 (collecting cases).

                                       D. The Tucker Act

        The ability of the United States Court of Federal Claims ("Court of Federal Claims") to
entertain suits against the United States is limited. "The United States, as sovereign, is immune
from suit save as it consents to be sued." United States v. Sherwood,312 U.S.584,586 (1941).
The waiver of immunity "may not be inferred, but must be unequivocally expressed." United
States v. White Mountain Apache Tribe, 537 U.S. 465,472 (2003). The Tucker Act, the
principal statute goveming the jurisdiction of this court, waives sovereign immunity for claims
against the United States, not sounding in tort, that are founded upon the United States
Constitution, a federal statute or regulation, or an express or implied contract with the United
States. 28 U.S.C. g la91(a)(1) (2012); White Mountain, 537 U.S. at472. However, the Tucker
Act is merely a jurisdictional statute and "does not create any substantive right enforceable
against the United States for money damages." United States v. Testan,424U.S.392,298
(1976). Instead, the substantive right must appear in another source of law, such as a "money-
mandating constitutional provision, statute or regulation that has been violated, or an express or
implied contract with the United States." Loveladies Harbor. Inc. v. United States,27 F.3d 1545,
 1554 (Fed. Cir. 1994) (en banc).
                                                  ●Ｄ
                                        III.   ANALYSIS

        The Court of Federal Claims has jurisdiction over requests for a tax refund provided that
certain requirements are met. Ledford v. United States,297 F.3d 1378, 1382 (Fed. Cir. 2002).
But Mr. Bible does not allege that he is entitled to a tax refund. Liberally construing his
complaint, Mr. Bible's claim concerns the propriety of an offset in conjunction with a debt he
purportedly owes to the EDD. Specifically, he avers that the offset was improper because the
basis for the aforementioned debt is the EDD's erroneous determination that it overpaid his
unemployment benefits. It is clear from Mr. Bible's pleading that the Court of Federal Claims
lacks jurisdiction to entertain his complaint.

         The BFS offset Mr. Bible's tax refund pursuant to I.R.C. $ 6402. Pursuant to subsection
(fl of that statute, the BFS must offset the amount of a tax refund by the amount the taxpayer
owes to a state for a covered unemployment compensation debt after the BFS receives notice of
such a debt from the state.3 I.R.C. $ 6402(0(1); see also id. $ 6402(f1(a) (defining "covered
unemployment compensation debt"). Congress, however, explicitly barred judicial review of
any action "brought to restrain or review a reduction authorized by subsection . . . (f)" and
further explained that "[n]o action brought against the United States to recover the amount of any
such reduction shall be considered to be a suit for refund of tax." Id. $ 6402(9); accord Ibrahim
v. United States, 112 Fed. Cl. 333, 337 (2013) ("[A] taxpayer cannot bring a claim against the
 fUnited States Department of the] Treasury based on unlawful offsets."). This bar is fatal to Mr.
Bible's claim because he does not plead any facts indicating that (l) the debt California claimed
he owed to the EDD failed to meet the requirements of LR.C. $ 6402(f), or (2) the BFS otherwise
violated the applicable provisions of I.R.C. I6402 when it offset his tax refunds. Therefore, the
jurisdictional bar imposed by I.R.C. $ 6a02(g) applies squarely to Mr. Bible's complaint, and the
court lacks jurisdiction to hear his claim. See also Hicks v. United States, 130 Fed. CL.222,230-
3l (2017) (concluding that the Court of Federal Claims lacked jurisdiction over plaintiff s
allegations that the BFS improperly offset the taxpayer's tax refunds to satisfy his debt to the
EDD).

                IV. APPLICATION TO PROCEED IN FORMA                  PAUPERIS

        Finally, the court tums to Mr. Bible's application to proceed in forma pauperis. To
proceed with a civil action in this court, a plaintiff must either pay $400 in fees-a $350 filing
fee plus a $50 administrative fee-or, like Mr. Bible, request authorization to proceed without
payment of fees by submitting a signed application to proceed in forma pauperis.o See 28 U.S.C.


        3 Congress assigned this responsibility to the Secretary of the United States Department
of the Treasury or the Secretary's delegate, LR.C. $ 6a02(a); see also id. $ 7701(A) (explaining
that "Secretary" means the "Secretary of the Treasury or his delegate"), who in turn delegated
the execution of the offset program to the BFS, see note2, supra.
        4 While the Court of Federal Claims is not generally considered to be a "court of the
United States" within the meaning of title 28 of the United States Code, 28 U.S.C. $ 451, the
court has jurisdiction to adjudicate applications to proceed in forma pauperis. See 28 U.S.C.
$$ 1915, 1926; RCFC 77(c); see also Waltner v. United States, 93 Fed. Cl. 139, l4I n.2 (2010)
(concluding that 28 U.S.C. $ 1915(a)(1) applies to both prisoners and nonprisoners alike).
Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that (1) lists all of their
assets, (2) declares that they are unable to pay the fees, and (3) states the nature ofthe action and
their belief that they are entitled to redress. 28 U.S.C. $ 1915(a)(1). Evaluation of a plaintiff s
ability to pay is "left to the discretion of the presiding judge, based on the information submitted
by the plaintiff." Alston-Bullock v. United States,l22Fed. Cl. 38, 45 (2015).

         Mr. Bible has fulfilled all three requirements of 28 U.S.C. $ 1915(aXl), and the court is
satisfied that he is unable to pay the filing fee otherwise required by RCFC 77.1(c). Therefore,
the court grants Mr. Bible's application and waives his filing fee.

                                        V. CONCLUSION
       Regardless of whether the EDD properly calculated his unemployment benefits, the Court
of Federal Claims plainly lacks jurisdiction to entertain his claims. Accordingly, the court
GRANTS defendant's motion to dismiss Mr. Bible's complaint for lack of subject matter
jurisdiction pursuant to RCFC l2(b)(l). In addition, the court GRANTS Mr. Bible's application
to proceed in forma pauperis. Mr. Bible's complaint is DISMISSED WITHOUT PREJUDICE
for lack of subject matter jurisdiction. No costs. The clerk is directed to enter judgment
accordingly.

       ITIS S0 0RDEⅢ ]D。




$ 2503(d) (deeming the Court of Federal Claims to be a     "court of the United States" for purposes
of 28 U.S.C. $ 1915).


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