NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ASAFO AMEN EL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1715
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00927-PEC, Judge Patricia E.
Campbell-Smith.
______________________
Decided: July 11, 2018
______________________
ASAFO AMEN EL, Detroit, MI, pro se.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by LISA LEFANTE DONAHUE, ROBERT EDWARD
KIRSCHMAN, JR., CHAD A. READLER.
______________________
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
2 EL v. UNITED STATES
PER CURIAM.
Asafo Amen El (“El”) appeals from the order of the
United States Court of Federal Claims dismissing his
complaint for lack of subject matter jurisdiction. El v.
United States, No. 17-927 C,
2018 WL 739761, at *3 (Fed.
Cl. Feb. 7, 2018) (“Decision”). For the reasons that follow,
we affirm.
BACKGROUND
El is a retired employee of the United States Postal
Service who receives an annuity for disability retirement
under
5 U.S.C. § 8337. He filed a complaint in the Court
of Federal Claims challenging the calculation of his
annuity under a variety of theories, including improper
garnishment, unjust enrichment, fraud, and violations of
the Double Jeopardy Clause and the Fourth and Fifth
Amendments to the United States Constitution. Decision,
2018 WL 739761, at *1.
After reviewing the complaint’s various theories and
arguments, the Court of Federal Claims determined that
El basically alleged that the United States Office of
Personnel Management (“OPM”) miscalculated his disa-
bility-retirement annuity, resulting in deficient payments.
Id. Such allegations, the court concluded, fall under the
disability retirement provisions of
5 U.S.C. § 8337. Id. at
*2. Because the court reasoned that OPM and the Merit
Systems Protection Board (the “Board”) have jurisdiction
over § 8337 claims, not the Court of Federal Claims, the
court dismissed El’s complaint for lack of subject matter
jurisdiction. Id. at *2–3 (citing Agee v. United States,
77
Fed. Cl. 84, 88 (2007)).
El appealed. We have jurisdiction under
28 U.S.C.
§ 1295(a)(3).
EL v. UNITED STATES 3
DISCUSSION
We review de novo the Court of Federal Claims’ deci-
sion to dismiss a complaint for lack of subject matter
jurisdiction. Trusted Integration, Inc. v. United States,
659 F.3d 1159, 1163 (Fed. Cir. 2011). El has the burden
of establishing the jurisdiction of the Court of Federal
Claims over his claims by a preponderance of the evi-
dence.
Id. We accept as true all undisputed facts in the
complaint and draw all reasonable inferences in favor of
the plaintiff. Henke v. United States,
60 F.3d 795, 799
(Fed. Cir. 1995).
El argues in his informal brief that his annuity should
be calculated as 80% of $57,987, not $54,561 as computed
by OPM. Informal Br. ¶ 7. OPM’s miscalculation, El
alleges, resulted in a deficiency in his annuity payments
of $60,072.40.
Id. El contends that this alleged deficiency
in several annuity payments violated his due process
rights and the Takings Clause of the Fifth Amendment.
Id.; Reply Br. 1–3.
The government responds that the Court of Federal
Claims lacked jurisdiction over El’s claim that OPM
incorrectly calculated his annuity. According to the
government, Congress charged OPM with adjudicating all
claims arising under the various retirement provisions of
title 5,
5 U.S.C. § 8347(b);
id. § 8461(c); see
5 C.F.R.
§ 831.101(a), subject to review by the Board,
5 U.S.C.
§ 8461(e)(1), and this court thereafter,
5 U.S.C.
§ 7703(b)(1)(A). Because Congress did not include the
Court of Federal Claims within the scheme for adjudicat-
ing disputes over retirement annuities and benefits, the
government maintains that the Court of Federal Claims
“is barred from adjudicating [El’s] retirement related
claims.” Agee, 77 Fed. Cl. at 92.
We agree with the government that the Court of Fed-
eral Claims lacked subject matter jurisdiction over El’s
complaint. Substantively, El challenges only OPM’s
4 EL v. UNITED STATES
calculation of his retirement benefits. Those challenges
must be brought in the first instance at OPM, because
OPM “shall adjudicate all claims” arising under the
respective retirement provisions of title 5.
5 U.S.C.
§ 8347(b);
id. § 8461(c); see generally Lindahl v. Office of
Pers. Mgmt.,
470 U.S. 768, 773–75 (1985) (reviewing the
history of the Civil Service Reform Act of 1978 and the
role of OPM, which is “responsible for administering the
Retirement Act”). And while El invokes the Takings
Clause of the Fifth Amendment, that “is no more than an
invocation of a constitutional label.” Spear v. McDonald,
586 F. App’x 591, 593 (Fed. Cir. 2014). El presents no
constitutional challenge distinct from his general allega-
tion that OPM miscalculated his annuity. That is not
enough to circumvent Congress’s choice placing adjudica-
tions of retirement benefits under title 5 within the pur-
view of OPM, subject to review by the Board and then this
court.
In sum, we agree with the Court of Federal Claims
that it lacked subject matter jurisdiction over El’s claims
challenging OPM’s calculation of his retirement annuity.
Those claims must be raised in the first instance at OPM.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Court of Federal Claims.
AFFIRMED
COSTS
Each party shall bear its own costs.
