                                      ORIGINAL
              3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaints
                                           No. 16-1302C
                                       Filed October 17, 2016
                                                                                     FILED
                                      NOT FOR PUBLICATION                          OCT 1 7 2016
                                                 )                                U.S. COURT OF
    MILLIE HOWARD,                               )                               FEDERAL CLAIMS
                                                 )
                         Plaintiff,              )
                                                 )       Pro Se; Rule 12(h)(3), Subject-Matter
    v.                                           )       Jurisdiction.
                                                 )
    THE UNITED ST ATES,                          )
                                                 )
                         Defendant.              )
~~~~~~~~~~~~~~~)

         Millie Howard, New Richmond, OH, plaintiff prose.

                            MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I.       INTRODUCTION

         Plaintiff pro se, Millie Howard, brought this action challenging the decision of the United
States District Court for the Southern District of Ohio to dismiss her claim for retirement benefits
under the Railroad Retirement Act, 45 U.S.C. § 231, et seq. See generally Compl. For the reasons
set fmih below, the Court DISMISSES plaintiff's claim for lack of subject-matter jurisdiction,
pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims ("RCFC").

II.      FACTUAL AND PROCEDURAL BACKGROUND 1

         A.     Factual And Procedural Background

         Plaintiff prose, Millie Howard, commenced this action on October 6, 2016, challenging the
decision of the United States District Court for the Southern District of Ohio to dismiss her claim


1
 The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint ("Compl.");
plaintiffs complaint before the United States District Court for the Southern District of Ohio ("Complaint,
Howard v. United States R.R. Reth·ement Board, No. 15-679 (S.D. Ohio Oct. 19, 2015)"); and the Opinion
and Order issued by the United States District Comt for the Southern District of Ohio, dated September 15,
2016 ("Opinion and Order, Howard v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Sept. 15,
2016)").
for retirement benefits under the Railroad Retirement Act. See generally Comp!. In the complaint,
plaintiff alleges that she is entitled to receive a widow annuity under the Railroad Retirement Act,
due to her deceased husband's employment with the Norfolk Southern Railroad. Id. at I. Plaintiff
further alleges that the United States Railroad Retirement Board ("USRRB") improperly denied her
claim for these benefits and that she was "fraudulently transferred to the Social Security
Administration." Id.

        Prior to commencing this action, plaintiff filed litigation in the United States District Court
for the Southern District of Ohio challenging the USRRB's decision to deny her benefits.
Complaint, Howard v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Oct. 19, 2015).
The district court dismissed plaintiffs claim on September 15, 2016. Opinion and Order, Howard
v. United States R.R. Retirement Board, No. 15-679 (S.D. Ohio Sept. 15, 2016). In addition, the
district court denied plaintiffs motion to transfer the case to this Court on September 15, 2016. Id.

        In this litigation, plaintiff seeks a review of the district court's decisions to dismiss her claim
and to deny her motion to transfer. Comp!. at 2. Plaintiff also requests that the Comi appoint a
special prosecutor "to examine the merits, the record, documentary evidence, and applicable
statutory law and render a decision." Id.

III.    ST AND ARDS OF REVIEW

        A.      Pro Se Litigants

        Plaintiff is proceeding in this matter prose, without the benefit of counsel. And so, the
Court applies the pleadings requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x 919,
925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir.
2007)). When determining whether a complaint filed by a pro se plaintiff is sufficient to survive a
motion to dismiss, this Court affords more leeway under the rules to prose plaintiffs than plaintiffs
who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro
se complaints, "however imuifully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014).
But, there "is no duty on the part of the trial court to create a claim which [the plaintiff] has not
spelled out in his pleadings." Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (brackets
existing; internal quotation omitted).




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        While "a pro se plaintiff is held to a less stringent standard than that of a plaintiff
represented by an attorney, ... the pro se plaintiff, nevertheless, bears the burden of establishing the
Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163,
165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)). And so, the
Court may excuse ambiguities, but not defects, in the complaint. Colbert v. United States, No.
2014-5029, 2015 WL 2343578, at *1 (Fed. Cir. May 18, 2015); see also Demes v. United States, 52
Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere formalities
does not relieve them of jurisdictional requirements.")

        B.      The Tucker Act And RCFC 12(h)(3)

        The United States Court of Federal Claims is a comt of limited jurisdiction and "possess[ es]
only that power authorized by Constitution and statute .... " Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court jurisdiction over:

        [A ]ny claim against the United States founded either upon the Constitution, or any
        Act of Congress or any regulation of an executive depmtment, or upon any express
        or implied contract with the United States, or for liquidated or unliquidated damages
        in cases not sounding in to1t.

28 U.S.C. § 1491(a)(l). 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 Comt of Federal Claims] whenever the substantive right
exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a substantive right
against the United States under the Tucker Act, a plaintiff must identify and plead a money-
mandating constitutional provision, statute, or regulation; an express or implied contract with the
United States; or an illegal exaction of money by the United States. Cabral v. United States, 317 F.
App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005)); Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005). "[A] statute or regulation
is money-mandating for jurisdictional purposes ifit 'can fairly be interpreted as mandating
compensation for damages sustained as a result of the breach of the duties [it] impose[s]."' Fisher,
402 F.3d at 1173 (quoting United States v. Mitchell, 463 U.S. 206, 217 (1983)).

        Specifically relevant to this matter, it is well established that the Court "does not have
jurisdiction to review the decisions of district comts or the clerks of district comts relating to
proceedings before those courts." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)); see



                                                   3
also Jones v. United States, No. 15-1044, 2016 WL 447144, *l (Fed. Cl. Feb. 4, 2016). And so, the
Court must dismiss a claim seeking to review the decisions of district courts for lack of subject-
matter jurisdiction. Id.

        It is also well established that '"subject-matter jurisdiction, because it involves a comi's
power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006) (citations omitted). "[F]ederal comis have an independent obligation to ensure that they
do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011) (citations omitted). "[A] comi has a duty to inquire into its
jurisdiction to hear and decide a case." Special Devices, Inc., v. OEA Inc., 269 FJd 1340, 1342
(Fed. Cir. 2001) (citations omitted).

        In addition, "[a] court may and should raise the question of its jurisdiction sua sponte at any
time it appears in doubt." Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988)
(citation omitted). To that end, the Comi may not allow any matter to proceed that alleges a basis
for jurisdiction '"so attenuated and unsubstantial as to be absolutely devoid of merit."' Kroll v.
Finnerty, 242 FJd 1359, 1362 (Fed. Cir. 2001) (quoting Hagans v. Lavine, 415 U.S. 528, 536-37
(1974)). And so, should the Court determine at any stage during litigation that it lacks subject-
matter jurisdiction, the Comi must dismiss the action. RCFC 12(h)(3).

IV.     DISCUSSION

        A.      The Court Does Not Possess
                Jurisdiction To Consider Plaintiff's Claim

        When read in the light most favorable to plaintiff, the complaint demonstrates that the Court
does not possess subject-matter jurisdiction to entertain plaintiffs claim. RCFC 12(h)(3). In the
complaint, plaintiff requests that the Court review the decision of the United States District Comi
for the Southern District of Ohio to dismiss her claim for railroad retirement benefits. See generally
Comp!. Plaintiff also requests that the Court review the district court's decision to deny her motion
to transfer that claim to this Comi. Id. at 1-2.

       The United States Comi of Appeals for the Federal Circuit has held that the United States
Court of Federal Claims does not possess jurisdiction to review the decisions of district comis
relating to proceedings before those courts. Joshua, 17 F.3d at 380. Because plaintiff



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acknowledges in her complaint that this is precisely the relief that she seeks here, the Court does not
possess subject-matter jurisdiction to consider plaintiff's claim. And so, the Court must dismiss the
complaint for lack of subject-matter jurisdiction. RCFC 12(h)(3).

V.     CONCLUSION

       In sum, when read in the light most favorable to plaintiff, the complaint in this matter
demonstrates that the Court does not possess subject-matter jurisdiction to entertain plaintiff's
claim. And so, the Court DISMISSES the complaint pursuant to RCFC 12(h)(3).

       The Clerk's Office is directed to ENTER final judgment in favor of the government,
DISMISSING the complaint.

       No Costs.

       IT IS SO ORDERED.




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