             ∬■1り 2復■it2b 5t,12/Court of∫ 2blTttI                                   CIttimg
                                                (PrO Se)
                                           No.19‑841T
                          (Filed:October 3,2019 1 Not for Publication)



 FAITH No NELSON,                                          Keywords: Motion to Dismiss; Subject-
                                                           Matter Jurisdiction; Pro Se; Illegai
                       Plainti地                            Exaction; Collateral Attack; Collateral
                                                           Estoppel; Issue Preclusion
        V.


 THE UNITED STATES OF ANIERICA,                                       Received.uscFc
                       Defendant.
                                                                        O(〕   丁03   2019


Faith N. Nelson, Kansas City, M.O., pro   se.

Margaret E. Sheer, Trial Attomey, U.S. Department of Justice, Tax Division, Court of Federal
Claims Section, Washington, D.C., with whom were Richard E. Zuckerman,Pincipal Deputy
Assistant General and David I. Pincus, Chiel Court of Federal Claims Section, for Defendant.


                                    OPINION AND ORDER
KAPLAN, Judge.

        Plaintiff Faith Nelson, appearing pro se, brings this suit challenging an offset of her
federal tax refund to pay the Missouri Department of Education for two educational loans she
took out in 1982 and 1985. Presently before the Court is the government's motion to dismiss for
lack of subject-matter jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal
Claims. For the following reasons, the motion is GRANTED and Ms. Nelson's complaint is
DISMISSED without prejudice.

                                          DISCUSSION

I.     Background

        Ms. Nelson received two educational loans----one in 1982 and another in 1985-both in
the amount of $2,500. Compl. at 1, Docket No. 1. Ms. Nelson claims that although both loans
were paid off by '!i4.ay 21,1986, the Missouri Department of Higher Education continued to
"garnish" her federal and state income tax refunds. Id. Most recentiy, according to Ms. Nelson,
the lnternal Revenue Service ("IRS") offset 53,464 from her federal tax refund for tax years
2014 throus.h20l6 and $11.481 for tax vears 2017 arfi20I8.Id. at2.
        In January 2018, Ms. Nelson filed suit in Missouri state court alleging that the United
States Department of Education and the Missouri Department of Education had wrongly offset
her tax refunds to apply them to her outstanding educational loans. Pet. at 1, Nelson v. Dep't of
Educ., No. 1716-CV30503 (Mo. Cir. Ct. Jan. 3,2018). The United States Department of
Education removed the case to the United States District for the Westem District of Missouri
pursuant to 28 U.S.C. $$ laa2(a)(l), 1444, and 1446 on May 30, 2018. Notice of Removal at l,
Nelson v. Dep't of Educ., No. 4:18-cv-00412 (W.D. Mo. May 30,2018). Ms. Nelson filed a
nearly identical complaint in the same district court on July 13,2018, including the Missouri
Department of Education as a defendant. See generally Compl., Nelson v. Mo. Dep't of Educ.,
No. 4:18-cv-00528 (W.D. Mo. July 13, 2018). The cases were consolidated. See Order at 5,
Nelson v. Dep't of Educ., No. 4:18-cv-00412 (W.D. Mo. Aug. 20,2018) (consolidating case No.
4:18-cv-00528 with case No. 4:18-cv-004I2 arnid designating the latter as the lead case).

         Ms. Nelson's complaint against the Missouri Department of Education was dismissed for
failure to state a claim. Nelson v. Dep't of Educ., No. 4:18-cv-00412,2018 WL 6566551, at*l
 (W.D. Mo. Oct. 4,2018). The district court granted the government's motion for summary
judgment as to Ms. Nelson's claims against the United States Department of Education. See
Nelsonv. Dep'tof Educ.,No.4:18-cv-00412,2019 WL 1529383,at*3 (W.D.Mo. Feb.26,
 2019).It found that, as of the date of its opinion, Ms. Nelson "continue[d] to owe money to [the
Department of Education], and that [the Department's] continued efforts to collect that debt
 [were] justified." The court also found that "over the 30+ years since she signed the promissory
 notes, [Ms. Nelson] has rarely made payments toward her loan obligations, other than when
 amounts are taken from income tax refunds." Id. The court further noted that "[g]iven the interest
that has accrued over these many years of non-payment, it is unsurprising that plaintiff owes
 more money now than the original amounts of the loans, as much of the offset money has gone
 to pay accrued interest, not the loan principal." Id.

         Ms. Nelson filed the present complaint in the Court of Federal Claims on June 5,2019.
She requests that the Court: order a stop to the "garnishing" of her federal and state income
refunds; clear her credit history; order that she be paid punitive damages for a violation of her
Fourteenth Amendment rights; and direct a refund of the amount of money offset from her tax
refi.rnds from 1988 to 2018, with interest. Compl. at 4.

         The government moved to dismiss Ms. Nelson's complaint for lack of subject-matter
jurisdiction on August 2, 20T9 . See Def.'s Mot. to Dismiss at 1 , Docket No. 1 1 . It argues that to
the extent Ms. Nelson challenges the IRS's authority to offset an income tax refirnd, she is
jurisdictionally barred from doing so pursuant to I.R.C. $ 6a02(g). Id. at 6-7 . Furthermore, it
 argues that any claims against the Department of Education for an improper offset constitute a
 collateral attack on the judgment of the United States District Court for the Western District of
 Missouri, which this Court lacks jurisdiction to review. Id. at7 .

        For the reasons set forth below, the Court agrees that it lacks subject-matter jurisdiction
over the claims raised in Ms. Nelson's complaint. It therefore grants the government's motion to
dismiss.
il.     The Government's Motion to Dismiss

         In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
 of the plaintiff. Trusted Inteeration. Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, "inquire into jurisdictional facts" to determine whether it has
jurisdiction. Rocovich v. United States , 933 F .2d 991, 993 (Fed. Cir. l99l).It is well established
that complaints filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,520 (1972). Nonetheless, even
pro se plaintiffs must persuade the Court that jwisdictional requirements have been met. Harris
v. United States, 113 Fed. CL.290,292 (2013).

        The Tucker Act grants the United States Court of Federal Claims jurisdiction over "any
claim against the United States founded . . . 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." 28 U.S.C. $ 1a91(a)(1). It serves as a waiver of sovereign immunity and a jurisdictional
grant, but it does not create a substantive cause of action. Jan's Helicopter Serv..Inc. v. Fed.
Aviation Admin. , 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish
that "a separate source of substantive law . . . creates the right to money damages." Id. (quoting
Fisher v. United States, 402 F .3d 1167 , ll72 (Fed. Cir. 2005) (en banc in relevant part)); Rick's
Mushroom Serv.. Inc. , 52I F.3d at 1343 ("pllaintiff must look beyond the Tucker Act to
identify a substantive source of law that creates the right to recovery of money damages against
the United States.") (citation omitted).

         This Court lacks jurisdiction over Ms. Nelson's challenge to the offset of her federal tax
refund by the IRS. Section 6a02(d)(1) of the Internal Revenue Code requires the Department of
the Treasury's Bureau of the Fiscal Service to "reduce the amount of any overpayment payable
to [a taxpayer] by the amount of such debt [owed to a federal agency]" and to pay that offset
amount to the federal agency owed the debt. Further, I.R.C. $ 6a02(g) "explicitly bars judicial
review ofany action 'brought to restrain or review a reduction authorized' by [subsection (d)]
and states 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." Hicks v. United States, 130 Fed. Cl.
222,230 (2017) (quoting I.R.C. $ 6402(9)).

        Though the Court would have jurisdiction over an illegal exaction claim against the
United States Department of Education for an improper offset, see Ibrahim v. United States, 112
Fed. Cl. 333,336 (2013) ("This court has construed pro se complaints that seek to recover tax
refunds unlawfully offset as claims for illegal exactions of tax refund offsets."), it lacks
jurisdiction to hear Ms. Nelson's claim because she has already unsuccessfully pursued the issue
 of whether she was in default on her educational loans in district court, see Vereda" Ltda. v.
United States,27IF.3d 1367,1375 (Fed. Cir. 200i) (observing that the Court of Federal Claims
 "does not have jwisdiction to review the decisions of district courts").

         Under the doctrine of issue preclusion, or collateral estoppel, "a judgment on the merits
in a first suit precludes relitigation in a second suit of issues actually litigated and determined in
the first suit." In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994). "The underlying rationale of
the doctrine of issue preclusion is that a parly who has litigated an issue and lost should be bound
by that decision and cannot demand that the issue be decided over again." Id. The doctrine
applies where:

       (1) the issue [in the second suit] is identical to one decided in the first action; (2)
       the issue was actually litigated in the irrst action; (3) resolution of the issue was
       essential to a final judgment in the first action; and (4) plaintiff had a full and fair
       opportunity to litigate the issue in the first action.

Id.

         Ms. Nelson's illegal exaction claim meets these criteria. To succeed on an illegal
exaction claim, she would have to demonstrate, inter alia, that the offset was "improperly paid,
exacted, or taken . . . in contravention of the Constitution, a statute, or regulation." Aerolinas
Areentinas v. United States ,77 F.3d 1564, 1573 (Fed. Cir. 1996) (quoting Eastport S.S. Corp. v.
United States ,372F.2d 1002, 1007 (Ct. Cl. 196T).t However, the district court has already
determined that Ms. Nelson was in default on her educational loans. Nelson, 2019 WL 1529383,
at *3 (granting the government's motion for summary judgment). Specifically, the district court
found that Ms. Nelson "continues to owe money to [the Department of Education], and that [the
Department's] continued efforts to collect that debt are justified." Id.; see also Bowman v.
United States, 35 Fed. CL.391,401 (1996) (explaining that "despite the existence of the elements
of an illegal exaction claim over which this Court may assert jurisdiction, it is not possible to
assert jurisdiction at present given the existence of ... judgments of the [] District Court").
Further, there is "no reason to doubt the quality, extensiveness, or fairness ofthe procedures
followed in the district court." Freeman, 30 F.3d at 1467. Therefore, issue preclusion bars this
Court from exercising jurisdiction over Ms. Nelson's illegal exaction claim.

        Likewise, the Court does not have jurisdiction to "clear[] and straighten out" Ms.
Nelson's credit history, or to enter judgment "for punitive damages for violat[ions]" of the
Fourteenth Amendment. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)
(observing that claims brought under the Fourteenth Amendment are not within this Court's
jurisdiction under the Tucker Act because this provision "do[es] not mandate payment of money
by the government."). The Court also lacks jurisdiction over any claims brought against the
Missouri Department of Education. See Shalhoub v. United States, 75 Fed. Cl. 584, 585 (2007)
 ("When a plaintiff s complaint names . . . state agencies, rather than federal agencies, this court
has no jurisdiction to hear those allegations.").




I Ms. Nelson's complaint, liberally construed, may be read to challenge the Department of
Education's determination that she owes a "past-due legally enforceable debt" under 31 U.S.C.
5 3720A, which sets forth the procedures by which a federal agency shall notify the Secretary of
the Treasury of such debt. See Ibrahim, 112 Fed. Cl. at 337 (finding that a pro se plaintiff
adequately pled an illegal exaction claim against the Department of Education where the plaintiff
alleged that the Department of Education "misapplied the statute authorizing tax refund offsets").
                                         CONCLUSION

         For the foregoing re€$ons, the governnent's motion to dismiss is GRANTED. Ms.
Nelson's complaint must be DISMISSED without prejudice for lack of subject-matter
jurisdiction. The Clerk is directed to enter judgment accordingly. Each side shall bear its own
 costs.

       ITIS S0 0RDERED.
