Alexidor v. United States

In the United States Court of Federal Claims
NOT FOR PUBLICATION
BETTY ALEXIDOR,
Plaintiff,
v. No. 21-2283
(Filed: April 1, 2022)
THE UNITED STATES OF AMERICA,
Defendant.
Betty Alexidor, Pro Se, Pembroke Pines, FL.
Matney E. Rolfe, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, D.C., with whom were Elizabeth M. Hosford, Assistant Director,
Patricia McCarthy, Director, and Brian M. Boynton, Acting Assistant Attorney General, for
Defendant.
OPINION AND ORDER
LERNER, Judge.
Plaintiff Betty Alexidor, appearing pro se, filed a complaint in this Court on
December 8, 2021, asserting claims relating to the Office of Personnel Management’s (“OPM”)
denial of her application for disability retirement benefits. Ms. Alexidor alleges that she earned
these benefits through her previous employment with the United States Postal Service. Compl.
(Docket No. 1). The Complaint contains sparse information, and the “Statement of the Claim”
section includes only the notation, “NA.” Compl. A-6. Liberally construed, the Complaint
suggests the following claims: (1) OPM erred by denying Ms. Alexidor’s disability retirement
application; (2) OPM erred by refusing to correct her record “to reflect disability retirement
status”; and possibly (3) the Merit Systems Protection Board (“MSPB” or “the Board”) erred in
upholding OPM’s decision.1 Compl. A-5. Plaintiff seeks back pay of disability retirement
benefits in excess of $10,000, a refund of health benefit premium payments, and the correction of
her employment record. Id. at A-7.
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Courts must “liberally construe[]” pro se pleadings, and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94–95 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). However, “there is no ‘duty [on the part] of the trial court to
create a claim which [a plaintiff] has not spelled out in his [or her] pleading.” El v. United States,
144 Fed. Cl. 741, 748 (Fed. Cl. 2019) (alteration in original) (citing Lengen v. United States,
100 Fed. Cl. 317, 328 (Fed. Cl. 2011)).
On February 24, 2022, the Government timely moved to dismiss Plaintiff’s claims for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal
Claims (“RCFC”). Def.’s Mot. (Docket No. 8).2 Also before the Court are Plaintiff’s Motion for
Leave to Proceed in forma pauperis (Docket No. 3) and Plaintiff’s Motion for Oral Argument
(Docket No. 13). For the reasons discussed below, the Court does not have subject matter
jurisdiction over Plaintiff’s claims. Accordingly, Defendant’s Motion to Dismiss must be
GRANTED.
I. Procedural Background
On October 21, 2021, OPM denied Ms. Alexidor’s application for disability retirement
benefits as untimely. Compl. A-5. On October 27, 2021, Ms. Alexidor filed an appeal with the
MSPB. Pl.’s Ex. 2 (Docket No. 1-1). On December 2, 2021, after filing a complaint in this
Court, Ms. Alexidor filed a motion with the MSPB requesting that the Board stay the action
pending resolution of her claims before this Court. Pl.’s Ex. 1. The parties’ exhibits do not
indicate whether the MSPB ruled on this motion. Nevertheless, on January 31, 2022, the MSPB
issued a ruling affirming OPM’s denial of Ms. Alexidor’s application for disability retirement
benefits as untimely. Def.’s Ex. 4 (Docket No. 8-1).
II. Legal Analysis
The Tucker Act provides this Court jurisdiction over “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 cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). However, a
complaint will be dismissed for failure to establish jurisdiction under the Tucker Act if the
plaintiff “fail[s] to identify any statute or regulation that entitles Plaintiff to receive money
damages from the Government.” See, e.g., Sindram v. United States, 67 Fed. Cl. 788, 795
(2005). A court has no choice but to dismiss a complaint “in its entirety” when it finds that it
lacks subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 502 (2006); see also
RCFC 12(h).
Although courts must liberally construe pro se plaintiffs’ filings, plaintiffs still bear the
burden of establishing subject matter jurisdiction by a preponderance of the evidence. Curry v.
United States, 787 F. App’x 720, 722 (Fed. Cir. 2019) (citing Taylor v. United States, 303
F.3d 1357, 1359 (Fed. Cir. 2002); Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380
(Fed. Cir. 1987)). Here, Plaintiff has not met this burden and, accordingly, the Court must
dismiss her Complaint.
First, the Court cannot rule on Ms. Alexidor’s claims regarding OPM’s decision because
only the MSPB has authority to hear appeals of OPM decisions regarding an employee’s benefits
under the Federal Employee Retirement System. See 5 U.S.C. § 8461(e)(1); see also Pueschel v.
United States, 297 F.3d 1371, 1378 (Fed. Cir. 2002) (citing McClary v. United States, 775
F.2d 280, 282 (Fed. Cir. 1985)) (stating that the Court of Appeals for the Federal Circuit has
“long held that the Court of Federal Claims does not have jurisdiction over a case that could be
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Plaintiff did not file a response to Defendant’s Motion to Dismiss.
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heard by the MSPB”). In addition, to the extent Ms. Alexidor is also asking the Court to review
the MSPB’s January 31, 2022 ruling affirming OPM’s decision, this Court lacks jurisdiction to
conduct such a review because the Federal Circuit, by statute, has exclusive jurisdiction over
appeals of MSPB decisions regarding retirement matters. See 5 U.S.C. § 7703(b)(1); see also
Lindahl v. Office of Personnel Management, 470 U.S. 768, 770 (1985).
III. Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED and the case is
DISMISSED with prejudice. Plaintiff’s Motion for Leave to Proceed in forma pauperis is
GRANTED for the limited purpose of granting Defendant’s Motion to Dismiss, and Plaintiff’s
Motion for Oral argument is DENIED as moot. The Clerk of the Court is directed to enter
judgment accordingly.
IT IS SO ORDERED.
s/ Carolyn N. Lerner
CAROLYN N. LERNER
Judge
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