EL v. USA
UNREPORTED OPINION granting 7 Motion to Dismiss under Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Patricia E. Campbell-Smith. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7016 3010 0000 4308 3884)
JJn tbe Wniteb ~tates Qeourt of jfebera:I Qela:ims
No. 17-927 C
(Filed: February 7, 2018)
FEB - 7 2018
NOT FOR PUBLICATION
ASAFO AMEN EL,
THE UNITED STATES,
U.S. COURT OF
Lack of Subject Matter Jurisdiction;
RCFC 12(b)(l); Civil Service Retirement
System, 5 U.S.C. §§ 8331-8351.
Afaso Amen El, Detroit, MI, pro se.
David M. Kerr, Trial Attorney, with whom were Chad A. Readier, Acting Assistant
Attorney General, and Robert E. Kirschman, Jr., Director, and Lisa Donahue, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant.
On July 7, 2017, prose plaintiff, a retired employee of the United States Postal
Service (USPS), filed a complaint with this court. See ECF No. 1. Defendant has moved
to dismiss the complaint for lack of subject matter jurisdiction or for failure to state a
claim, pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of the United States Court of
Federal Claims (RCFC). See ECF No. 7. For the following reasons, defendant's motion
Plaintiffs complaint is not a model of clarity. To the extent the complaint alleges
discernible facts, those facts relate to improper annuity statements, and claims for various
7016 3010 DODD 4308 3884
refund amounts allegedly owed to plaintiff. See ECF No. 1 at 8, 11. The exhibits
attached to the complaint generally relate to plaintiffs separation from the USPS, and
payments made to him thereafter. See ECF No. 1-1 at 2-25, 50-57. 1 The first exhibit,
for example, is aletter from the USPS to plaintiff enclosing paperwork related to his
"claim for disability retirement," which was "approved," and providing him information
regarding his "annuity computation." See id. at 2.
Plaintiff mentions a myriad of additional claims against defendant in the
complaint, including: (!)improper garnishment, see id.; (2) check-kiting, see id.; (3)
unjust enrichment, see id.; (4) fraud, see id.; (5) negligence, see id.; (6) violation of the
Double Jeopardy Clause of the United States Constitution, see id.; (7) conspiracy, see id.
at 10; (8) corporate espionage, see id.; (9) breach of guarantee oflife; see id.; (I 0)
malicious prosecution, see id.; (11) abuse of administrative process, see id.; (12)
violations of the Fourth and Fifth Amendments to the United States Constitution, see id.
at 14; (13) intimidation, stalking, and harassment; see id. at 15; (14) attempts to murder
plaintiff and his family members, see id. at 16; and (15) retaliation, see id. at 17.
After a thorough review of the materials submitted by plaintiff, however, the
court, agrees with defendant's characterization that plaintiffs "complaint appears to
allege that the Office of Personnel Management (OPM) incorrectly calculated his
disability-retirement annuity payment." See ECF No. 7 at I.
Defendant argues that plaintiffs complaint should be dismissed for lack of
jurisdiction, see RCFC 12(b)(l), or in the alternative, for failure to state a claim on which
relief can be granted, see RCFC l 2(b )( 6). Because the court concludes that it lacks
jurisdiction to consider plaintiffs claims, no analysis of the legal sufficiency of those
claims is warranted.
Pursuant to the Tucker Act, the court has the limited jurisdiction to consider "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)(l) (2012). To invoke the court's jurisdiction,
Plaintiff also attaches a number of documents related to driver services in the State
of Michigan, see ECF No.I-I at 30-48, and a police report reflecting a complaint made
by plaintiff to the Detroit, Michigan Police Department in which he complained of
harassment by USPS employees, see id. at 59-61. The police report contains no
indication that the responding officers did anything beyond memorializing plaintiffs
statement made by telephone.
plaintiffs must show that their claims are based upon the Constitution, a statute, or a
regulation that "can fairly be interpreted as mandating compensation by the Federal
Government for the damages sustained." United States v. Mitchell, 463 U.S. 206, 216-17
(1983) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)).
Plaintiff bears the burden of establishing this court's subject matter jurisdiction by
a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988). In reviewing plaintiffs allegations in support of
jurisdiction, the court must presume all undisputed facts are true and construe all
reasonable inferences in plaintiffs' favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982);
Reynolds, 846 F .2d at 74 7 (citations omitted). If the court determines that it lacks subject
matter jurisdiction, it must dismiss the complaint. See RCFC 12(h)(3).
As the court understands it, plaintiff alleges in his complaint that the annuity
payments he received following his retirement from civil service at the USPS were
deficient. See ECF No. 1 at 8, 11. This court has succinctly explained the genesis of the
civil retirement system:
The Civil Service Retirement System, 5 U.S.C. §§ 8331-8351 (2000), was
first enacted by the Civil Service Retirement Act of 1920, Pub. L. No. 66215, 41 Stat. 612 (May 22, 1920). The Act has been amended numerous
times and the current text and section number designations are codified in
title 5, United States Code, Pub. L. No. 89-554, 80 Stat. 378 (Sept. 6, 1966).
In 1978, Congress enacted the Civil Service Reform Act, Pub. L. No. 95454, 92 Stat. 1111 (Oct. 13, 1978) ("CSRA"), which gave OPM authority to
adjudicate all claims made under the CSRS. 5 U.S.C. § 8347(a) and (b).
Ferreira v. United States, 72 Fed. Cl. 1, 3 (2006), affd, 501F.3d1349 (Fed. Cir. 2007).
See also 5 C.F.R. § 831.10 l(a) (2017) ("OPM has charge of the adjudication of all claims
arising under [the retirement provisions] of title 5, United States Code, and of all matters
directly or indirectly concerned with these adjudications."). Plaintiffs claim in this case
relates to his disability retirement from civil service, a matter which is governed by 5
U.S.C. § 8337 and which falls squarely within OPM's purview. 2
Section 8337 sets forth, in detail, the requirements for employees who wish to
apply for disability retirement benefits, and points to the authority under which an
annuity amount is calculated.
In the event of an adverse decision from OPM, the Merit System Protection Board
(MSPB) is the proper forum for an appeal. See 5 U.S .C. § 8347(d)(l) (2001) (stating that
"an administrative action or order affecting the rights or interests of an individual or of
the United States under this subchapter may be appealed to the Merit Systems Protection
Board under procedures prescribed by the Board"). The United States Court of Appeals
for the Federal Circuit has exclusive jurisdiction to hear appeals from MSPB decisions.
See 5 U.S.C. § 7703(b)(l)(A) (2014) (stating that "a petition to review a final order or
final decision of the Board shall be filed in the United States Court of Appeals for the
If plaintiff has a complaint relating to an OPM decision made in calculating his
disability retirement benefits, he must file an initial appeal of that decision with the
MSPB. There is no evidence that he has done so in this case. Even assuming he has
taken that predicate step to judicial review, however, this court is not empowered to
consider his claim. See Agee v. United States, 77 Fed. Cl. 84, 88 (2007) ("The Court is
barred from adjudicating retirement benefit claims when the underlying dispute rests on
personnel action subject to OPM administration, and Merit Systems Protection Board
("MSPB") review.") (citing Lindahl v. Office of Personnel Management, 470 U.S. 768,
774-75 (1985) (holding that the Court of Federal Claims is not the appropriate authority
to determine retirement issues, as that arena of federal employee litigation is within the
exclusive jurisdiction of the MSPB and the Court of Appeals for the Federal Circuit)).
Because plaintiff has failed to establish that this court has jurisdiction to consider
his claim, the court must dismiss the complaint under RCFC 12(h)(3). As such,
defendant's motion to dismiss under RCFC 12(b)(l), ECF No. 7, is GRANTED. The
clerk's office is directed to ENTER final judgment DISMISSING plaintiffs complaint
IT IS SO ORDERED.
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