Opinion
23-1193-DDC-GEB
01-04-2024
PHYLLIS M. KNIGHT, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION. Defendants.
ORDER AND REPORT AND RECOMMENDATION
GWYNNE E. BIRZER, U.S. MAGISTRATE JUDGE
NOTICE
Within fourteen (14) days after Plaintiff is served with a copy of this Report and Recommendation, she may, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2) file written objections to the same. Plaintiff must file any objections within the time prescribed in the event she seeks appellate review of the proposed findings of fact, conclusions, of law, or recommended disposition. The undersigned's report and ultimate recommendations are as follows:
REPORT AND PROPOSED FINDINGS
Plaintiff filed her federal court Complaint (ECF No. 1) on September 12, 2023, and simultaneously filed a Motion to Proceed without Prepayment of Fees (ECF No. 3, sealed ). For the reasons set forth herein, the Court recommends Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed) be DENIED and further recommends dismissal of all but Plaintiff's §522a(g)(1) claims, for failure to state a cause of action and directs service be stayed pending review of the Report and Recommendation.
Unless otherwise indicated, the information recited in this section is taken from the Complaint (ECF No. 1). This background information should not be construed as judicial findings or factual determinations.
Plaintiff filed her initial Complaint naming the United States Office of Personnel Management and Social Security Administration as Defendants. The Complaint alleges a multitude of claims for violations of various federal statutes. On December 13, 2023, the Court ordered Plaintiff to submit a revised affidavit of financial status that fully responds to sections III.A. and III.D. Plaintiff filed her amended financial affidavit on December 20, 2023.
Plaintiff alleges violations of 5 U.S.C. 522, 5 U.S.C. 552; the Freedom of Information Act; Privacy Act; Congressional Review Act; Federal Employees' Retirement Service Act of 1986; Social Security Act; False Claims Act; Tucker Act; Lloyd-LaFollette Act; and 5 U.S.C. 2302.
ECF No. 7.
ECF No. 8, sealed.
II. Motion for Leave to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915(a), the Court has discretion to authorize filing of a civil case “without prepayment of fees or security thereof, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security thereof.” “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.'”The decision to grant or deny in forma pauperis status is within the sound discretion of the court. In civil cases for damages, the position of courts in this District is to grant in forma pauperis status sparingly.
Barnett ex rel. Barnett v. Northwest. Sch., No. 00-2499-KHV, 2000 WL 1909625, *1 (D. Kan. Dec. 26, 2000) (citing Cabrera v. Horgas, No. 98-4231, 173 F.3d 863, *1 (10th Cir. Apr. 23, 1999)).
Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
Patillo v. N. Am. Van Lines, No. 02-2162-JWL, 2002 WL 1162684, at *1 (D. Kan. Apr. 15, 2002) (citing Cabrera v Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999)).
Scherer v. United States, No. 01-2428-JWL, 2001 WL 1516736, at *1 (D. Kan. Nov. 7, 2001) (citing Barnett v. Northwest Sch., No. 00-2499-KHV, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000); Forrester v. Via Christi St. Joseph & ITS Reps., No. 97-1243-MLB, 1997 WL 557329, at *1 (D. Kan. June 10, 1997)).
To determine whether a party is eligible to file without prepayment of the filing fee, the Court reviews the party's financial affidavit and compares his or her monthly expenses with the monthly income disclosed therein. To succeed on a motion to proceed in forma pauperis, a party must show a financial inability to pay the required filing fees. The filing fee is currently $402. Plaintiff's financial affidavit reflects that her monthly income exceeds her monthly expenses, and the Court finds she has the ability to pay the filing fee.
Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, *1 (D. Kan. Aug. 9, 2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL, 2000 WL 1162684, *1) (D. Kan. April. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL, 2000 WL 1025575, *1 (D. Kan. July 17, 2000)).
However, a magistrate judge does not have authority under 28 U.S.C. § 636 to deny a motion to proceed without prepayment of fees. Accordingly, the undersigned Magistrate Judge RECOMMENDS Plaintiffs' Motion (ECF No. 3, sealed) be DENIED. In the event any claims are permitted to proceed, the undersigned further recommends Plaintiff be allowed to pay the filing fee in seven monthly payments of $50.00, and an eighth payment of $52.00. The undersigned does not believe such payments would be an undue burden on Plaintiff.
Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (the denial of plaintiff's motion to proceed in forma pauperis is a dispositive matter and the magistrate judge should issue a report and recommendation for de novo review by the district judge).
III. Recommendation of Dismissal
When a party seeks to proceed without the prepayment of fees, the in forma pauperis statute, 28 U.S.C. § 1915, requires the court to screen the party's complaint. Under § 1915, sua sponte dismissal of this case is required if the court determines the action: 1) is frivolous or malicious; 2) fails to state a claim upon which relief may be granted; or 3) seeks relief from a defendant who is immune from suit. The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.” After application of these standards, the undersigned Magistrate Judge recommends dismissal of all claims except those alleged pursuant to 5 U.S.C. §552a(g)(1).
Harris v. Campbell, 804 F.Supp. 153, 155 (D. Kan. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989) (citing language contained in § 1915(d), prior to the statute's amendment in 1996)).
After a thorough review of the record, the Court finds the remainder of Plaintiff's Complaint is subject to dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Fed.R.Civ.P. 8(a)(2) requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” This requires the complaint state more than “labels and conclusions” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Because Plaintiff proceeds pro se, her pleadings must be liberally construed. However, she still bears the burden to allege “sufficient facts on which a recognized legal claim could be based” and the Court cannot “take on the responsibility of serving as [her] attorney in constructing arguments and searching the record.” Finally, Fed.R.Civ.P. 8 “demands more than naked assertions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Mays v. Wyandotte County Sheriff's Dep't, 419 Fed.Appx. 794, 796 (10th Cir. 2011) (internal edits omitted) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
Cohen v. Delong, 369 Fed.Appx. 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Under Fed.R.Civ.P. 8(a), every complaint must contain three minimal pieces of information: 1) the pleading should contain a short and plain statement of the claim showing Plaintiff is entitled to relief; 2) a short and plain statement of the grounds for the Court's jurisdiction; and 3) a statement of the relief requested. If any of these requirements are absent, even after providing a liberal construction to Plaintiff's Complaint, the court “is compelled to recommend that the action be dismissed.” Mere “allegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim.”
Snider v. Burton, No. 15-1043-JTM, 2015 WL 867423, at *2 (citing requirements under Rule 8), report and recommendation adopted, No. 15-1043-JTM, 2015 WL 1442096 (D. Kan. Mar. 30, 2015).
Id. (quoting Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977)); see also Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).
A. Analysis
The Court intends to review each claim Plaintiff attempts to bring against Defendants and why the claim is subject to dismissal. The Court will first address Plaintiff's claim under the Freedom of Information Act.
i. Freedom of Information Act
Plaintiff identifies the Freedom of Information Act as one of the federal statutes that are at issue in her case. However, other than listing the Freedom of Information Act as one of the federal statutes at issue in this case, Plaintiff states no facts in her complaint that allows this Court to find sufficient facts on which a recognized legal claim could be based, and, accordingly, the Court RECOMMENDS dismissal of the Freedom of Information Act claim.
ECF No. 1; 5 U.S.C. § 552.
ii. Congressional Review Act
Plaintiff, again, identifies the Congressional Review Act as a statute at issue in this case. However, there is no further mention of the Congressional Review Act throughout Plaintiff's complaint. There is one mention of it in an attachment to the complaint titled, “Demand for Reversal of Order Denying Appellant Motion to Compel.” However, this Court does not find Plaintiff alleges facts sufficient to recognize a legal claim under the Congressional Review Act and, further, no “determination, finding, action, or omission” under the Congressional Review Act is subject to judicial review. Therefore, the Court RECOMMENDS dismissal of the Congressional Review Act claim. The Court next reviews Plaintiff's claim for violation of the Federal Employees' Retirement Service Act of 1986.
ECF No. 1, Ex. 1-1.
5 U.S.C. 805. Also see, Kansas Nat. Res. Coal. v. United States Dept. of Interior, 971 F.3d 1222 (10th Cir. Aug. 24, 2020).
iii. Federal Employees' Retirement Service Act of 1986 (“FERS”) and Tucker Act
After applying for disability retirement on May 1, 2022, Plaintiff's application was denied by the United States Office of Personnel Management, (“OPM”) on August 16, 2022. On September 11, 2022, Plaintiff requested reconsideration of that decision. The OPM denied Plaintiff's request for reconsideration on December 12, 2022, and directed Plaintiff to the Merit Systems Protection Board (“MSPB”) if she wanted to appeal the decision. Plaintiff appealed, and a decision denying Plaintiff's appeal was rendered on June 13, 2023. Plaintiff then requested review of the MSPB's decision by filing a petition for review on July 10, 2023. The status of Plaintiff's request for review is unknown to this Court.
ECF No. 1, Ex. 1-1, pg. 1.
ECF No. 1, Ex. 1-1, pg. 4.
ECF No. 1, Ex. 1-1, pg. 28.
ECF No. 1, Ex. 1-1, pg. 66.
ECF No. 1, Ex. 1-1, pg. 79.
Plaintiff's complaint alleges she was wrongfully denied disability retirement benefits under FERS. The District Court is not the proper forum for a judicial review of Plaintiff's denial of benefits, as the Court of Appeals for the Federal Circuit normally has jurisdiction over final decisions by the MSPB. There are two exceptions, the first is when the appeal also contests an adverse employment action based upon an allegation of prohibited discrimination. This type of “mixed case” must be appealed to the federal district court. The second exception applies when a plaintiff petitions for judicial review of:
ECF No. 1.
Baca v. Dept. of the Army, 983 F.3d 1131, 1137 (10th Cir. Dec. 22, 2020).
Id.
Id.
[A] final order or final decision of the [MSPB] that raises no challenge to the Board's disposition of allegations of a prohibited personnel practice described in [5 U.S.C.] section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C) or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.
Id.
Plaintiff also attempts to bring a claim for review of the MSPB's decision under The Tucker Act. The Tucker Act provides:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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.
The Tucker Act vests jurisdiction over these disputes with the Court of Federal Claims, and the court has had the opportunity to scrutinize Tucker Act actions brought under the FERS and found jurisdiction lacking. The Court of Federal Claims adhered to the procedure for appealing a decision of the OPM to the MSPB in determining it did not have jurisdiction under The Tucker Act to review the decision of the OPM.
Id.; Also see, State of Kansas v. United States, 192 F.Supp.3d 1184, 1191 (D. Kan. June 24, 2016); Lewis v. United States, 167 Fed.Cl. 210, 220 (Aug. 23, 2023).
Lewis at 216-221; McGhee v. United States, 2022 WL 1023806, at *2 (Fed. Cir. April 6, 2022).
In this case, Plaintiff does not allege she was denied benefits based upon any alleged discrimination. As such, the District Court does not have jurisdiction to hear the FERS claim and therefore RECOMMENDS dismissal. The Court will next review Plaintiff's claim under the Social Security Act.
iv. Social Security Act
Plaintiff alleges violation of the “Social Security Act” and claims it is at issue in this case. However, Plaintiff's complaint does not contain a “a short and plain statement of the claim showing Plaintiff is entitled to relief” under the Social Security Act or identify what section(s) of the Act she alleges were violated. Despite proceeding pro se, Plaintiff bears the burden to allege “sufficient facts on which a recognized legal claim could be based.” Further, it is not the Court's responsibility to serve “...as [her] attorney in constructing arguments and searching the record.” Finally, Fed.R.Civ.P. 8 “demands more than naked assertions.” Plaintiff's complaint does not set forth facts in a short and plain statement that lead the Court to find anything more than a “naked assertion” that the Social Security Act was violated. As such, the Court RECOMENDS dismissal of the Social Security Act claim and turns to Plaintiff's allegations regarding violation of the False Claims Act or “Lincoln Law.”
ECF No. 1.
Id.
Mays v. Wyandotte Cnty. Sheriff's Dept., 419 Fed.Appx. 794, 796 (10th Cir. 2011) (internal edits omitted) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
Cohen v. Delong, 369 Fed.Appx. 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
v. False Claims Act
Plaintiff alleges Defendants violated the False Claims Act (“FCA”) as a basis for federal-question jurisdiction. The FCA allows civil action to be brought by the federal government to recover damages for false claims for payment. The FCA's qui tam provisions allow a private citizen to initiate an action in the name of and for the benefit of the federal government and to share in any monetary recovery. Plaintiff's complaint is bare of any alleged facts that support a claim under the FCA. The Defendants in this case are entities of the federal government.
ECF No. 1.
See 31 U.S.C. 3730(b).
Further, Courts have determined a plaintiff proceeding pro se may not act as a relator; a person who files on behalf of the federal government under the FCA. Because Plaintiff does not allege facts sufficient to support a claim under the FCA and because the FCA does not authorize a pro se litigant to act as a relator in a qui tam action, the Court RECOMMENDS dismissal of the FCA claim.
See, e.g., Timson v. Sampson, 518 F.3d 870, 873-74 (11th Cir. 2008) (per curiam); Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1126-28 (9th Cir. 2007); United States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir. 2004); United States v. Onan, 190 F.2d 1, 6-7 (8th Cir. 1951). Also see, Neighbors v. Bakker, No. 18-4013-SAC, 2018 WL 1570175, at *2 (D. Kan. Mar. 12, 2018); Fields v. Faircloth, No. 17-4037-DDC, 2018 WL 25454, at *2 (D. Kan. Jan. 24, 2018).
IV. Conclusion
IT IS THEREFORE ORDERED Plaintiff's §522a(g)(1) claims be permitted to proceed.
IT IS ORDERED although service of process is traditionally undertaken by the clerk of court pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3), the clerk is directed to stay service of process pending review of this Report and Recommendation.
See Webb. v. Vratil, No. 12-2588-EFM, ECF No. 7 (D. Kan. Sept. 28, 2012) (withholding service of process pending review under 28 U.S.C. § 1915(e) and jurisdictional review).
IT IS THEREFORE RECOMMENDED that certain claims as identified above, in this action be DISMISSED for failure to state a claim upon which relief may be granted.
IT IS ORDERED that a copy of this recommendation shall be mailed to Plaintiff by certified mail. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), Plaintiff may file a written objection to the proposed findings and recommendations with the clerk of the district court within fourteen (14) days after being served with a copy of this report and recommendation. Failure to make a timely objection waives appellate review of both factual and legal questions.
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
IT IS SO ORDERED.